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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a consultative workshop on the International Covenant on Economic, Social and Cultural Rights, 7 February 2022

Programme Director,
Deputy Ministers present,
Commissioner Ntuli and representatives from the South African Human Rights Commission,
Members of civil society and academia,
Distinguished guests and friends,

Good morning and welcome to this very important workshop, which has been long overdue.

I want to extend a special welcome to Prof Sandra Liebenberg who is also on the platform this morning.

As you know, the United Nations Committee on Economic, Social and Cultural Rights is responsible for monitoring compliance by States Parties with their obligations under the International Covenant on Economic, Social and Cultural Rights.

Prof Liebenberg was elected as a member of the Committee in 2017 and in 2019 she was elected as Vice-Chair of the Committee and therefore we are very privileged to have her join us this morning.

Perhaps as a starting point, we need to recap on where we are with the process - South Africa’s accession to the International Covenant on Economic, Social and Cultural Rights in January 2015 represented an important step, giving the Covenant greater force in domestic law and deepening the enforcement of socio-economic rights in our country.

In October 2018, I led a government delegation which appeared before the UN Committee in Geneva.

After constructive engagements with a wide range of civil society organisations, the South African Human Rights Commission and our government delegation, the UN Committee then issued its Concluding Observations.

The Concluding Observations cut across all of government.

They range from an observation that the Constitution has not fully incorporated the rights enshrined in the Covenant, such as the right to work and the right to an adequate standard of living to issues relating to enhanced training for judges, prosecutors, lawyers and public officials on the Covenant.

Other recommendations include that we improve our data-collection system, that we provide a safe and favourable environment for the work of human rights defenders, that we intensify our efforts to ensure the equal enjoyment by indigenous peoples of the rights enshrined in the Covenant and that we increase the level of funding in the areas of social security, health and education, to name but a few.

Some of the other observations pertain to asylum seekers, sex workers, domestic workers and farm workers, labour inspectors, public and private health-care systems, school infrastructure and no-fee schools.

In addition, some of the observations touch on our budget processes, fiscal framework and tax regime.

So, in short, the Concluding Observations affect nearly everything government does – and not only the executive arm of the State, but also the judiciary and the legislature.

The Committee also encouraged government to engage with the South African Human Rights Commission, non-governmental organizations and other members of civil society in the follow-up to the present Concluding Observations and in the process of consultation at the national level prior to the submission of its next periodic report.

The Committee further encouraged government to ratify certain international human rights instruments such as the Optional Protocol to the Covenant as well as the International Convention for the Protection of All Persons from Enforced Disappearance (CPED).

I am pleased to advise that three government clusters - the ICTS, JCPS and Social Clusters - have all recommended that the CPED be taken to Cabinet for approval to ratify and this will be done before the end of this financial year.

The Optional Protocol is also an instrument that the Department of Justice and Constitutional Development will prioritise for ratification in the next financial year.

Our second periodic report on the Covenant is due by 31 October 2023.

This means that all our various government departments need to accelerate their efforts in implementing the Concluding Observations and recommendations.

Our Department, in association with the South African Human Rights Commission, hosted a workshop with civil society organisations in 2020 and a commitment was made that we would provide feedback to the SAHRC and coalitions of the CSOs in terms of the steps government has undertaken to respond to the Concluding Observations and recommendations issued.

In May last year, South Africa submitted an interim or follow-up report on four issues, as we were requested to do by the Committee in terms of its follow-up procedures.

The four issues pertained to the preparation of a composite index on the cost of living, access to social assistance for adults between 18 and 59 years of age, the adoption of the Social Assistance Amendment Bill and access to education for undocumented migrant, refugee and asylum-seeking children.

Due to time constraints, our Department was unable to consult with the Chapter 9 institutions and civil society organisations on the responses prior to submitting the replies to DIRCO before the end of the 2020/21 financial year. This was as a result of the late submission of inputs from the affected departments.

In November last year, on all four aspects, the Committee made a finding of “insufficient progress”. This is not something that we can gloss over.
This means that we would need to have focused bilateral meetings with the relevant departments in order to see how these matters can be improved and taken forward.

Some of the departments are available here today and will be able to provide further updates on the implementation of these four critical recommendations as well as other recommendations, in the lead up to the preparation of the next periodic country report.

It is also important to note that South Africa will undergo its 4th review under the Universal Periodic Review in November this year.

This process also provides us with an opportunity to report back to the Human Rights Council, and the international community more broadly, with measures that South Africa has adopted in realising socio-economic rights.

As we continue with the implementation of our international obligations, we also cannot ignore or discount the severe impact that Covid-19 has had across all of government.

Now that we are slowly starting to see a return to what can be described as the “new normal”, we need to take stock of the fact that many government departments have had to make do with staff rotation, with staff being off sick or in isolation or even, sadly, having succumbed to the virus.

This, coupled with the regular closure of offices due to decontamination, has led to backlogs in service delivery, in some cases acutely so.
Where there were existing backlog or slow implementation prior to the pandemic, Covid-19 has exacerbated these.
This is a vital aspect which we will need to factor in as we move forward.

Programme Director,
We recently celebrated the 25th Anniversary of the signing into law of the 1996 Constitution.

It is worth highlighting that our Constitution mirrors many of the provisions of the Covenant in a significant way – therefore as we implement and realize the rights in the Constitution, we are also giving effect to the Covenant.

There has been a lot of discussion and debate recently in our country around what we mean when we speak of “Constitutional gains”.
When Minister Lamola raised it recently, some people on social media responded and said that there have been no constitutional gains.
This, of course, cannot be true. We have constitutional supremacy, the rule of law, an independent judiciary, universal adult suffrage, free and fair elections, a range of Chapter 9 bodies, the right of access to information and the right to administrative justice and laws and institutions to give effect to these rights.

The fact that anyone aggrieved by any law or government action or policy can approach a court for relief is a constitutional gain in and of itself.

We have extended basic services to millions of people who did not have access to such services in the past. The 2020 General Household Survey indicated that the percentage of persons who attained Grade 12 as their highest level of education increased from 21% in 2002 to 36% in 2020.

Slightly more than eight-tenths (84%) of South African households lived in formal dwellings in 2020 and 89% of households have access to improved water sources. Almost two-thirds of South African households have access to flush toilets while 83% had access to improved sanitation.
These are Constitutional gains, brought about because of justiciable socio-economic rights as set out in our Constitution and in international instruments such as the Covenant. But, at the same time, 20,6% of households nationally considered their access to food as inadequate or severely inadequate. Food access problems were the most common in North West (35%), Mpumalanga (32%), Free State (26%) and Northern Cape (25%).

South Africa still remains one of the most inequitable countries in the world and our unemployment rate stood at a record high of 34.9% in Q3.

In December 2021, the findings and data from the 2022 World Inequality Report were released.

It shows that while the richest South Africans have wealth levels broadly comparable with those of affluent Western Europeans, the bottom 50% in South Africa own no wealth at all.

The top 10% own close to 86% of total wealth and the share of the bottom 50% is negative, meaning that the group has more debts than assets.

Poverty, unemployment and inequality are a reality we must face.
Furthermore, poverty, unemployment and inequality make the provision of, and access to, socio-economic rights all the more pertinent – and in many cases, life-saving. Are we doing sufficient human rights impact assessments when it comes to economic policy and economic reform?

Are we, as government, fully applying the principle of non-retrogression?
Or do we allow situations where persons feel that they have to approach a court for relief, as a last resort, because government is not being pro-active enough in the implementation of policies and programmes?
Are we doing enough to popularise the provisions of the Covenant itself?

Programme Director,
As we move forward towards on the implementation of the Concluding Observations and in the compilation of the next country report, these are some of the tough questions that we need to ask ourselves.

And we need our civil society partners and our Chapter 9 bodies to give us feedback on when and where we can do better.
In short, if we fail on socio-economic rights, it is viewed as a failure of the Covenant and of Constitution as a whole – and we cannot let that happen.

I thank you.