Strengthening the HRC and cooperation with other state agencies
Judges must acknowledge that the laws of the
land must be upheld. Simultaneously, legislators must recognize that
they make mistakes, and must accept advice from the judiciary, in terms
both of the constitution and of fundamental human rights, and principles
of equity. To promote such attitudes, the Human Rights Commission can do
a great deal through awareness programmes, and seminars, in which the
different branches of government are brought together to understand the
problems that might arise, and how best to resolve them in the interests
of the citizenry
One area in which the Human Rights Commission has n vital role to
play, in terms of the National Human Rights Action Plan, is that of
training the judiciary. This cannot be done easily by another branch of
government, since it would not do for the executive to trespass on the
independence of the judiciary. At the same time it is important that the
judiciary observes high level norms in its operations, with regard both
to its professional decisions as well as the administrative rules it
sets for itself. Foremost amongst these is the need to establish a
mechanism to ensure that justice is swift. The number of dates given to
lawyers is positively outrageous now, but one can see why magistrates
and even judges give in to pleas. In a context in which indulgence is
the norm, to stand out against this is difficult. The result is endless
delays in settling cases and mounting expenses for litigants, including
the state.
The answer is not easy, but the judiciary, with guidance from the HRC
in terms of the Action Plan, should set itself benchmarks with reporting
requirements from judges and magistrates.
There should be performance indicators which should be examined and
upon which promotions should be granted. Fortunately the present Chair
of the HRC had tried to institute something of the sort when he chaired
the Judicial Services Commission, and is therefore in a good position to
encourage compliance with whatever regulations can be developed.
Judicial review of legislation
It would also be good if the legislature made it crystal clear that
limits it imposes are mandatory. Too often the practice has arisen of
courts deciding on their own that principles are directive. I believe
what the legislature lays down must be treated seriously, though given
that legislators are fallible, there should be provision for judicial
review of legislation, and also for recommendations for change that
could also correct any injustices. This for instance should have been
the way in which the problem about mandatory sentences for statutory
rape was dealt with. The law is perfectly acceptable in most cases I
would suggest, but I can see the problem one magistrate had with a harsh
sentence in a case which involved consensual sex, and marriage, the only
problem being that the girl in question was under age and therefore
consensual sex had to be treated as statutory rape.
I can therefore understand that the sentence given was suspended, but
surely the matter could have been referred to the Supreme Court, which
could have advised amendment to the legislation. I believe the Law
Commission has indeed prepared a suitable amendment, but that has been
forgotten, and many other judges now give suspended sentences in cases
in which there are no such mitigating circumstances.
Fundamental human rights
Judges must acknowledge that the laws of the land must be upheld.
Simultaneously, legislators must recognize that they make mistakes, and
must accept advice from the judiciary, in terms both of the constitution
and of fundamental human rights, and principles of equity. To promote
such attitudes, the Human Rights Commission can do a great deal through
awareness programmes, and seminars, in which the different branches of
government are brought together to understand the problems that might
arise, and how best to resolve them in the interests of the citizenry.
Such awareness programmes must also extend to local officials, both
elected and appointed. At present there are far too few training
programmes for them, and indeed the HRC should also assist in training
that encourages a rights based approach to their work, as the Plan
suggests, so that they will promote Economic and Social and Cultural
Rights as laid down in the Plan. At present the planning process for
many social services is not thorough and cohesive, and it would
certainly help if elected and appointed officials are taught about
setting themselves goals with clearly assessable outcomes. The HRC could
be assisted in this by a streamlined Ministry of Policy Planning and
Implementation that would be able to train officials in how policy can
be developed and implemented to take rights also into account.
Education system
For this purpose the HRC should not only have more and better staff,
but it should also divest itself of work that does not relate to its
core purpose as the apex body for Rights promotion. I was horrified to
find, when I first began working with them, that much of their time was
spent on dealing with complaints about admissions to schools. That
should be dealt with through mediation, assuming the present confusion
about schools admission continues, though I also hope that we can
develop a less contentious education system that will obviate the
frenzied struggle for admissions. Ensuring transparency based on a clear
system that is readily understood may help us avoid the conviction
amongst many that their rights have been violated.
It will also help if the HRC moves swiftly on the recommendation in
the Action Plan that it appoints Regional Advisory Committees to assist
its regional offices. The members of such committees should not be paid,
since that will encourage rent-seeking, but should include professionals
as well as officials for whom attendance should be seen as part of their
duties. I have found excellent advice from the membership of the
District and Divisional Reconciliation Committees that have been set up
by local officials, including on rights issues. This type of partnership
should be developed to look into these on a regular basis, with feedback
to relevant officials in other agencies as well as to the Human Rights
Commission. |