Legislation – Realising Rights

On 3 March 2015, the Portfolio Committee for Justice began the public consultation process on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill 18 of 2014. The Legal Resources Centre attended Parliament and presented oral submissions which were based upon our written submissions of 4 March 2015.

The Amendment Bill seeks to implement two Constitutional Court judgments which have become known as the Teddy Bear Clinic case and J v the NDPP case. Both of these cases dealt with aspects of the constitutionality of certain provisions of the “Sexual Offences Act”. The Teddy Bear Clinic matter dealt with the constitutionality of criminalising consensual sexual behaviour of adolescents between the ages of 12 years and 16 years, and J dealt with the automatic recording of the details of minors convicted of sexual offences on the National Register of Sex Offenders. The amendment that will address the constitutional concerns raised in the Teddy Bear Clinic case has received much more media attention than the issue of recording minors’ details.

It seems that the reason for this was on full display during the public consultation process this past week, when a number of religious organisations, churches and institutions came to Parliament to object to the amendment which, in essence, seeks to recognise normal sexual behaviour between consenting adolescents. The Constitutional Court has recognised adolescence as a difficult period in a person’s growth and that adolescents require support and not prosecution. These particular amendments will give adolescents the ability to experience their normal sexual exploration and development by not criminalising this behaviour.

Those who attended on behalf of the religious community did not afford the same recognition to sexual behaviour between adolescents. This apparently normal period in the development of human beings became “episodes of consensual abuse”, “unnatural urges and needs” and “immoral and sinful”.

Repeatedly, those of us who believe in human rights and the Constitution where told that we hold no moral compass. At one point in the presentations, it was stated that civil society organisations funded by the west have become “agents of Satan”. They referred to a Constitution in which “the moral values of the majority were not reflected in the liberties contained in the Constitution”. One could almost forget that the Constitution, in fact, recognises rights for South Africans and instead begin to believe that they were in fact liberties; liberties that we can either be deprived of or which we are happy to give up, if only government would allow us to do so.

We recognise and acknowledge that, as South Africans, we have a wonderful opportunity and right to participate and engage in the process of enacting legislation. This is a right that was hard won and we continue to struggle for its realisation.

But we further recognise that we need to ensure that the values in the Constitution and the rights enshrined therein are protected by taking a proactive stance in engaging at the parliamentary level in order to ensure that legislation that is passed within its halls are indeed in compliance with the Constitution. If we do not, we run the risk of parliamentarians only hearing the voices of those who are too eager to give up rights on our behalf.

The amendments to the Sexual Offences Act will, in all likelihood, be adopted by Parliament; there is, after all, a Constitutional Court order mandating them to do so. We ask that Parliament implement the tolerant and accepting nature of the Constitutional Court in both its recognition of the support needed for adolescents during a difficult time in their lives, as well as the need to de-criminalise their normal sexual behaviour.

We echo the sentiments of the Chairperson of the Portfolio Committee in saying that religious leaders and institutions have a duty not only to educate their members on their religious duties, but also to ensure that they use their platforms to educate the public on our Constitution and the rights enshrined therein.

By: Charlene May

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Child reunited with mother — Refugee minor reunited with his mother

Over the last few years, the Department of Home Affairs (DHA) has faced a handful of criticisms. From hasty closures of Refugee Reception Offices (RRO) to the damning reports of poor conditions in the Lindela Repatriation Centre, there is much fodder for this condemnation.

While many DHA practices are unforgivable, it is not surprising that the same institution charged with regulating immigration treats refugees so contemptuously.

The DHA enforces both the Immigration Act and the Refugees Act. The Immigration Act is protectionist legislation, aiming to preserve employment and educational opportunities for citizens. On the other hand, the acceptance of refugees – people who seek safety and solace – is undoubtedly a humanitarian activity.

Improving conditions for refugees will take a multi-pronged approach; however, we must acknowledge that some of the existing conditions are unavoidable when the DHA is called to implement the Refugees Act and the Immigration Act, two pieces of legislation that occasionally butt heads. The inherent conflict in the process has resulted in the poor treatment of asylum-seekers and the development of distrust among all involved parties.

If the mechanisms dealing with refugees are to be improved, the relevant institutions must be independent from the DHA. In fact, this model of institutional independence is not new and has been employed in various contexts.

Take for example the Independent Police Investigative Directorate, which investigates complaints lodged against the South African Police Service (SAPS). Institutions like the Directorate exist because there would be a complete lack of confidence in a complaints mechanism directly connected to SAPS.

The threat of deportation or the lapse of a transit permit, among other things, inject fear into asylum-seekers and refugees. Even people who have held valid refugee permits for several years retain this fear, which only compounds the anxieties arising in their everyday lives. For many, a system independent of the DHA can alleviate some of those fears and infuse a necessary sense of security in the process.

Admittedly, the South African asylum-seeking process is not completely void of independence. In fact, there is an independent six-person Refugee Appeal Board (RAB), which exists to enforce the Refugees Act, as well as relevant international conventions. However, when the system is as backlogged as it is (as of April 2012 there were 87,602 RAB reviews pending) and the RAB is only accessible during an appeal, the potential strength of the board is diminished.

Some may have apprehension at the thought of a more independent system. They envision a deluge of asylum-seekers successfully claiming refugee status under false pretenses. However, the aim of this suggested bifurcation would not be leniency, but rather an infusion of humanitarian principles into the process and a clear focus on the goals of the Refugees Act.

Many countries have asylum processes that are linked to immigration enforcement agencies, but it is important to note that these countries lack South Africa’s history. Not so long ago, many exiled anti-apartheid activists sought the support and protection of other nations; these experiences cannot be forgotten. South Africa should aim to be a source of enlightenment when it comes to refugee rights; however, as of now, it is heading rapidly down the wrong path.

By: Estelle Hebron-Jones

Tag: Legislation

The Day Human Rights Became Immoral

Refugee processes require independence