The Role of African National Human Rights Institutionsin promoting creative and constructive approaches todispute resoluti...
TABLE OF CONTENTSCHAPTER 1                                              4INTRODUCTION                                     ...
WHY ALTERNATIVE DISPUTE RESOLUTION FOR COMPLAINTS OFHUMAN RIGHTS VIOLATIONS?                                42THE LIMITATI...
The Role of African National Human Rights Institutionsin promoting creative and constructive approaches toconflict resolut...
The Paris Principles call for national human rights institutions to be giventhe competence to promote and protect human ri...
commissions, which are pluralist in their membership. The committeealso recommended establishing ombudsmen or comparable i...
While there is not yet an agreed definition, the UN describes nationalhuman rights institutions as government bodies estab...
counter-balance government reports to the United Nations systems.15The work of these commissions help to create an awarene...
The SAHRC deals with disputes over violations of rights around issues ofdiscrimination on any of the grounds set out in th...
ADR processes are mediation and arbitration, which date back to theearly 1900s. ADR techniques like negotiation, conciliat...
This thesis is divided into five chapters. The next chapter (Chapter two)provides a general overview of national human rig...
CHAPTER 2          National Human Rights Institutions in AfricanThe African regional system for the promotion and protecti...
The Commission also has the responsibility of undertaking research onAfrican human rights problems, and to encourage membe...
The establishment of national human rights institutions in Africa in the1990s can be attributed both to political transiti...
Finally, there were internal pressures to make a fresh start in Africa.There was a drive towards the promotion and protect...
reports of the Coordinating Committee. It is also mandated to follow upon the Declarations made at Conferences of African ...
One of the vexing questions that long occupied the attention of theAfrican Commission was whether to grant observer status...
While the African Commission has made provision for national institutionsto have standing in the Commission as affiliated ...
sources of information on human rights situation in individual countries.They could also be used alongside other sources o...
Chapter 3The South African Human Rights Commission at a glanceIn South Africa, the establishment of national human rights ...
PP focuses solely on complaints between the state and the public and itsfunctions and powers revolve around violations in ...
are, among others correctly stated in its objectives, to provideconstitutional redress for complaints relating to human ri...
In section 181 (2) the Constitution provides for the independence of theSAHRC, and subject only to the Constitution and th...
One of the most important sections of this Act for the purposes of thisdiscussion is section 8. This section allows the Co...
falls within the mandate of the Commission; whether the complaintsconstitutes a priema facie violation of, or threat to a ...
Commission wants to maintain its independence and impartiality at alltimes and not for its findings to be influenced by an...
The screening or assessment process may also include an inspection inloco by the investigating team before even notifying ...
An effective case selection criteria would also ensure that cases that fallwithin its mandate that are not likely to be re...
be notified and given a chance to consent to the process, or appeal to theCommission within 45 days of the decision becomi...
negotiation or the findings may be published. It may be that afterinvestigation, the SAHRC is unable to conclude the matte...
taken for granted, and this may help increase their trust and confidencein the SAHRC.If the investigation of a complaint r...
would be whether the matter can effect law reform. As the formerChairperson of the SARC notes:“This is a step the Commissi...
Promotion of Access to Information Act (PAIA)PAIA came into force on March 9, 2001. In terms of this Act, people areentitl...
economic rights, their realisation still presenting challenges to ourdemocracy. So the complaints handling procedures impa...
CHAPTER 4     The relevance of Alternative Dispute Resolution for the            South African Human Rights CommissionA br...
of their disputes, and “those solutions may be far more novel than anyremedy a court has the power to provide”54Secondly, ...
Dispute Panels                                                                                   Negotiation              ...
The study would focus exclusively with ADR methods that are specificallyprovided for in the legislative framework of the S...
raised all of which are potentially acceptable to the disputants (neitherdisputant has to lose, both, in fact, can win); (...
problem in a rational way, vesting participants in the settlement reached,etcA distinction should be made between position...
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
Role of African National Human Rights Institutions in Promoting Creative and Constructive Approaches to Conflict Resolution
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  1. 1. The Role of African National Human Rights Institutionsin promoting creative and constructive approaches todispute resolution, with specific reference to the SouthAfrican Human Rights Commission (SAHRC) Dissertation submitted in part fulfillment of the requirements for an LLM degree in Human Rights and Constitutional Practice, University of Pretoria, South Africa, 2002 Victoria Maloka - 20313561 Center for Conflict Resolution C/O University of Cape Town Rhodes Gift post Office Cape Town 021- 4222 512(t) 021- 4222 622(f) vmaloka@ccr.uct.ac.za victoriamaloka@yahoo.com 1
  2. 2. TABLE OF CONTENTSCHAPTER 1 4INTRODUCTION 4CHAPTER 2 12NATIONAL HUMAN RIGHTS INSTITUTIONS IN AFRICA 12RELATIONSHIP BETWEEN THE AFRICAN COMMISSION AND NATIONALHUMAN RIGHTS INSTITUTIONS 16CHAPTER 3 20THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION AT A GLANCE 20LEGISLATIVE FRAMEWORK 21THE CONSTITUTION: 22THE ENABLING LEGISLATION 23THE REGULATIONS 24OTHER LAWS IMPACTING ON THE COMPLAINT HANDLING MECHANISMOF THE SAHRC 32PROMOTION OF EQUALITY AND PREVENTION OF UNFAIRDISCRIMINATION ACT (PEPUDA) 32PROMOTION OF ACCESS TO INFORMATION ACT (PAIA) 33CHAPTER 4 35THE RELEVANCE OF ALTERNATIVE DISPUTE RESOLUTION FOR THESOUTH AFRICAN HUMAN RIGHTS COMMISSION 35A BRIEF HISTORY OF ADR 35MEDIATION 38CONCILIATION 39NEGOTIATION 39 2
  3. 3. WHY ALTERNATIVE DISPUTE RESOLUTION FOR COMPLAINTS OFHUMAN RIGHTS VIOLATIONS? 42THE LIMITATION OF ADR TO HUMAN RIGHTS COMPLAINTS 48ASSESSMENT OF THE COMPLAINT-HANDLING MECHANISM OF SAHRC 49CHAPTER 5 51APPROACHES TO DISPUTE RESOLUTION: RIGHTS-BASED, POWER-BASED AND INTEREST- BASED 51APPLICATION OF THE THREE APPROACHES 52CHAPTER 6 56COMPARISON BETWEEN THE SAHRC AND OTHER NATIONAL HUMANRIGHTS INSTITUTIONS 56THE COMMISSION ON GENDER EQUALITY (CGE) 56LEGISLATIVE FRAMEWORK: 57THE CONSTITUTION 57ENABLING LEGISLATION 57REGULATIONS/ GUIDELINES 58OVERVIEW OF THE COMPLAINTS HANDLING MECHANISM OF THE CGE 58THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) 60BRIEF HISTORY 60LEGISLATIVE FRAMEWORK 60CHAPTER 7 63CONCLUSION 63REFERENCES66 3
  4. 4. The Role of African National Human Rights Institutionsin promoting creative and constructive approaches toconflict resolution, with specific reference to the SouthAfrican Human Rights Commission (SAHRC) Dissertation submitted in part fulfillment of the requirements for an LLM degree in Human Rights and Constitutional Practice, University of Pretoria, South Africa, 2002 Victoria Maloka - 20313561 CHAPTER 1 IntroductionNational human rights institutions are an integral part of the complex andcomprehensive system of human rights machinery developed for thepromotion and protection of human rights to fulfill the aspirations of thenations of the world as contained in the United Nations (UN) Charter andother international rules and standards.1 The UN’s efforts to encouragethe creation and strengthening of such institutions can be traced back to1946 during the second session of the United Nations’ Economic andSocial Council (ECOSOC).2 At this session, member states wererequested to “consider the desirability” of establishing local bodies in theform of “information groups or local human rights committees” tofunction as vehicles for collaboration with the United Nations Commissionon Human Rights.3However, it is only over the past few years that the internationalcommunity has come to agree on the structure and functioning of thesebodies. A landmark in this process was the formulation of internationalstandards - popularly called the Paris Principles - relating to the status ofnational institutions, which were endorsed by the UN General Assembly in1993. The Paris Principles prescribe, among other things, the competenceand responsibilities of national human rights institutions, thecomposition, and guarantees of independence and pluralism, and themethods of operation, of these institutions.41 Margaret Sekaggya, Chairperson of the Ugandan Human Rights Commission, Opening Speech at th ththe 4 conference of the African national human rights institutions, held in Kampala, Uganda, 14 – th16 August 2002, p12 Economic and Social Council resolution 2/9 of 21 June 1946, section 53 Supra4 Supra 1 above, p 2 4
  5. 5. The Paris Principles call for national human rights institutions to be giventhe competence to promote and protect human rights and to be accordedas broad a mandate as possible, clearly set forth within a constitutionalor legal framework. According to these Principles, a national institutionshall, among other things, have the competence to receive and act onindividual complaints of human rights violations and may seek anamicable settlement of disputes through conciliation, binding decisions,and other means.In addition to the Paris Principles, the 1993 Vienna World Conference onHuman Rights reaffirmed the important and constructive role played bynational human rights institutions and called upon governments to createand strengthen these bodies.5 The Vienna Declaration and Programme ofAction states that national human rights institutions should play animportant role in promoting and protecting human rights, disseminatinghuman rights information, and providing human rights education.6Furthermore, in 1995, the United Nations’ Commission on Human Rightsrequested the UN Secretary-General to accord high priority to requestsfrom member states for assistance in establishing and strengtheningnational human rights institutions.7 Soon thereafter, the UN’s HighCommissioner for Human Rights prioritised the strengthening of nationalinstitutions through technical assistance to governments on draftlegislation, institutional set-up, and counseling of national institutions.8Regional organisations in Europe, the Americas and Africa haverecognised the role of national human rights institutions in the promotionand protection of human rights.9 For example, the Council of Europe’sCommittee of Ministers has recommended the establishment andstrengthening of national human rights institutions. The Committee ofMinisters recommended that member states should, taking into accountthe specific requirements of each member state, consider establishingeffective national human rights institutions, in particular human rights5 Vienna Declaration and Programme of Action, Part I, para 36. The World Conference on humanrights encourages the establishment and strengthening of national institutions having regard to the“Principles relating to the status of national institutions and recognising that it is the right of eachstate to choose the framework which is best suited to its particular needs at the national level6 Supra, para 367 Commission on Human Rights Resolution 1997/408 Supra9 Linda C Reif, Building Democratic Institutions: The Role of National Human Rights Institutions ingood governance and human rights protection, 13 Harv.Hum.Rts.J.1, p2 5
  6. 6. commissions, which are pluralist in their membership. The committeealso recommended establishing ombudsmen or comparable institutions.10In the Americas, the General Assembly of the Organisation of AmericanStates (OAS) has also supported various national human rightsinstitutions working in its hemisphere. The OAS has called for theestablishment of such institutions in member states that have not yet setup their offices, and recommended that the independence of suchnational institutions be respected.11In Africa, the African Charter of Human and People’s Rights of 1981encouraged the creation of national human rights institutions by regionalgovernments, and urged states to allow the establishment andimprovement of appropriate national human rights institutions entrustedwith the promotion and protection of the rights and freedoms of theircitizens. The African Charter further requires the African Commission to“encourage national and local institutions concerned with human andpeoples’ rights”.12To meet this obligation, the African Commission, in its Plan of Action from1996 to 2001, declared its intention to encourage the establishment ofnational institutions and the development of a programme to reinforceexisting structures. In April 1999, the Commission submitted a documentto the first Organisation of African Unity (OAU) – now the African Union(AU) - ministerial conference on human rights in Africa, held in Mauritius.The meeting discussed the creation of national human rights institutionsin Africa.Furthermore, in the Grand Bay Declaration and Plan of Action adopted bythe 1999 conference (to be distinguished from the Africa Commission’sown Mauritius Plan of Action), African foreign ministers and ministers ofJustice, affirmed that the primary responsibility for the promotion andprotection of human rights lies with member states. Accordingly, stateswere urged to establish national human rights institutions, to providethem with adequate financial resources, and to ensure theirindependence.10 See Council of Europe, Committee of Ministers, Recommendation of the Establishment ofIndependent National Human Rights Institutions, Recommendation No. R (97) 14 para. A (1997)11 OAS General Assembly, Support for the Work of the Defenders of the People, Defenders of thePopulation, Human Rights Attorneys and Human Rights Commissioners (Ombudsman) in the contextof Strengthening Democracy in the Hemisphere, OAS AG/Res 1601, xxviii- 0/98 (1998)12 Articles 26 and 45 of the Africa Charter of Human and Peoples’ Rights 6
  7. 7. While there is not yet an agreed definition, the UN describes nationalhuman rights institutions as government bodies established under aconstitution or by legislation or decree whose functions are specificallydesigned to promote and protect human rights through different activitieslike education, resolution of human rights complaints, and advise togovernments.13 The UN broadly groups national human rights institutionsinto three categories: human rights commissions, ombudsman (publicprotector), and specialised national institutions designed to protect therights of particular vulnerable groups such as refugees, minorities, etc.This study will focus exclusively on human rights commissions and not onother institutions which also play an important role in upholding humanrights nationally.While the formal mandates, powers, and working methods of thesecommissions vary greatly, they all share a responsibility to promote andprotect human rights in their respective countries. Furthermore, thesebodies have ongoing advisory authority with respect to human rights atnational and international levels. Their advisory mandate includesadvising parliaments, executives and/or judiciaries on human rightsissues. In addition, these institutions assist the three branches ofgovernment to promote and protect human rights, thereby contributingto policy formulation and ensuring that new policies meet human rightsstandards as well as the implementation of international standards in, forexample, ratifying treaties. Where such an institution has a complaintmechanism, it would invariably be expected to advise or providerecommendations regarding complaints to its national government.National human rights commissions are engaged in promoting humanrights. Their goals and functions include, among other things, informationsharing, education, documentation and research or analysis on humanrights issues.14 Furthermore, these institutions are mandated to promoteratification of international instruments; to review the compliance ofnational legislation with international law; to report or makerecommendations to governments and/or parliaments on legal changesor policy issues; and to cooperate with the UN and regional agencies.These commissions also assist governments in drafting state reports, andsometimes themselves draft so-called “shadow reports” that serve to13 See United Nations Centre For Human Rights, National Human Rights Institutions: A HandbookOn The Establishment And Strengthening Of National Institutions For The Promotion And ProtectionOf Human Rights Professional Training Series No. 4 at para 6 36 – 39, UN Doc. HR/P/PT/4, U.N.Sales No. E 95.XIV 2 (1995) hereafter National Human Rights Institutions: A Handbook14 National Human Rights Institutions: A Handbook P18 7
  8. 8. counter-balance government reports to the United Nations systems.15The work of these commissions help to create an awareness andknowledge of human rights which can in turn contribute to thedevelopment of a culture of, and respect for, the observance of humanrights at a national level.The protective components of the mandate of national human rightscommissions include handling of individual complaints. This may involveinvestigation, conducting hearings, settling of disputes, conciliation, andthe right to proceed with a complaint of alleged human rights violations.Since human rights commissions are non-judicial bodies,16 this protectivemandate serves to compliment the functioning of the judiciary. Thiscomlementarity implies that the complaint function of a national humanrights commission should be able to offer something which the legalsystem or other institutionalised processes cannot such as accessibility,flexibility, informality, lower costs and rapid resolution of disputes.17It is this specific mandate of national human rights commissions that willbe the main focus of this study. By examining the protective mandate ofthe South African Human Rights Commission (SAHRC), especially itscomplaints handling mechanisms, the study seeks to establish, how andwhether the SAHRC (set up by the South African constitution of 199618as well as by the Human Rights Commission Act19 to protect humanrights through the investigation of alleged violation of human rights) isindeed fulfilling this mandate by promoting creative, cooperative, andconstructive approaches to the resolution of human rights complaints.Put differently, the thesis will investigate the extent to which the SAHRCpromotes alternative dispute resolution (ADR) mechanisms, as providedfor in its founding statute, to resolve complaints related to alleged humanrights violations as opposed to merely resorting to litigation. The studyalso seeks to establish some of the advantages of resolving human rightsviolations through alternative dispute resolution rather than litigation.15 Birgit Lindsnaes and Lone Lindholt, National Human Rights Institutions-Standard Setting andAchievements, p25 in “National Human Rights Institutions: Articles and working papers: Input to thediscussions on the establishment and development of the functions of national human rightsinstitutions, Birgit Lindsnaes, Lone Lindholt & Kristine Yigen (Eds) Danish Centre for Human Rights,Denmark , 200116 It should be noted that the Ugandan Human Rights Commission has quasi-judicial powers toconvene a human rights court to adjudicate complaints.17 National Human Rights Institutions: A Handbook, p28. See also Brian Burdekin, National HumanRights Commissions-National and International Perspectives. Prepared for the CommonwealthSecretariat by the Special Advisor to the United Nations High Commissioner for Human Rights onNational Institutions, undated, unpublished, p3 cited in supra 16 above18 Act 200 of 199619 Act 54 of 1994 8
  9. 9. The SAHRC deals with disputes over violations of rights around issues ofdiscrimination on any of the grounds set out in the right to equality,matters in which there is damage to the environment, and issues inwhich the right to dignity has been violated. The Commission has set upa Legal Services Department to deal with such complaints. This study willexamine the complaints’ procedure of the Commission and seek toestablish how cases are dealt with, whether recommendations arefollowed up and are implementable, and finally, whether personnelresponsible for complaints’ handling are sufficiently confident and capableof applying other methods of conflict resolution other than litigation toresolving human rights complaints. This thesis will also explore therelevance of alternative dispute resolution mechanisms in human rights,and examine the advantages and disadvantages of such mechanisms fornational human rights institutions. Finally, the study will assess thebenefits of an interest-based approach to dispute resolution as opposedto a rights and power-based approaches.This thesis argues that using conflict resolution approaches to settlecomplaints of human rights violations strengthens the complaints’handling mechanism of national human rights institutions like the SAHRC.Promoting creative, constructive, and cooperative approaches to theresolution of conflicts can facilitate dialogue between parties in a conflictand can create a safe “space” for negotiating substantive issues. Theemphasis of this approach on the non-violent resolution of conflicts andthe need for inclusive processes, means that human rights values are atthe core of conflict resolution. Approaching human rights violations froma conflict resolution perspective highlights the importance of engagingwith people’s opinions, looking beyond their positions, and exploring theinterests, needs, fears and concerns behind their actions. This approachcan build more confidence in national commissions, which in turn cancontribute to the fulfillment of its protective mandate. The thesis is basedon the premise that a stronger complaint’ handling mechanism has thepotential to contribute positively to the building of a culture of rights inSouth Africa.For the purposes of this study, the terms “conflict” and “dispute”, as wellas the phrases “conflict resolution” and “alternative dispute resolution(ADR)”, will be used interchangeably. ADR refers to a variety of disputeresolution techniques other than litigation or adjudication through thecourts. These alternative approaches provide an opportunity forrelationship building and try to ensure that the needs, interests, concernsand specific fears of disputants are taken into account. The most familiar 9
  10. 10. ADR processes are mediation and arbitration, which date back to theearly 1900s. ADR techniques like negotiation, conciliation and problemsolving employ an interest-based approach that is often a moreconstructive alternative to traditional, adversarial processes. Thedifferent approaches are dealt with in more detail in subsequent chaptersof this study.The presumption underlying this thesis is that conflict consists ofdifferences in, or incompatibility of, goals, needs, and interests betweentwo or more people. This is neither positive nor negative. Conflict may belikened to fire, which can be very destructive if not properly managed.Fire can also have a positive effect when used and managed properly.Seen in this way, conflict is an inevitable and intrinsic part of our lives.Therefore our efforts should not be directed at completely eliminatingconflict, but at ensuring that conflict does not escalate into violence,bloodshed and destruction. Consequently, the focus of conflict resolutionshould not be on eradicating, avoiding, or suppressing conflict, but ratheron managing it in a healthy way that allows for the expression of discordand legitimate struggle without violence.20 Disputes, on the other hand,may be interpreted as the underlying factors behind different orincompatible goals, needs and interests. As such, disputes and conflictsgo hand in hand and are ever present, normal and natural in our lives.Another presumption underlying this thesis is that human rights areuniversal in nature since such rights are derived from our inherentdignity as human beings. However, it is acknowledged that the meaningand relative importance of rights may be interpreted differently indifferent social, cultural, historical and political contexts. Human rightsare therefore interpreted as fundamental rights and freedoms that belongto every human being by virtue of their inherent dignity as humanbeings. Defined in this way, human rights are the means through whichhuman beings attain common goals of dignity, respect, equality andtolerance. Rights may also be said to be legal entitlements that citizensenjoy in exchange for giving some powers to the state. As legalentitlements, human rights are to be found in a country’s laws and itsconstitution, and the state therefore has an obligation to ensure that itscitizens enjoy these rights. One of the ways in which states may ensureimplementation and enforcement of human rights at a domestic level, isthrough the establishment of national human rights institutions for thepromotion and protection of human rights.20 Michelle Parlevliet, Walking the Talk: A conflict Resolution Approach to Human Rights Educationfrom South Africa. An unpublished paper prepared for the International Tolerance Network, Availableat the Centre for Conflict Resolution, Cape Town, 17 March 2003, p6 10
  11. 11. This thesis is divided into five chapters. The next chapter (Chapter two)provides a general overview of national human rights institutions inAfrica. It provides a brief background of the establishment and mandatesof these bodies. Chapter three is a case study of the South AfricanHuman Rights Commission. This chapter examines the background of theestablishment of the SAHRC, its legislative framework, its functions, andits mandate. The chapter focuses particularly on the commission’sprotective mandate and, more specifically, on its complaints’ handlingmechanism. Chapter four explores the relevance of ADR for resolvingcomplaints of human rights violations. Chapter five explores the benefitsof an interest-based, as opposed to rights-based and power–basedapproaches, to dealing with complaints of human rights violations.To assist us in our findings, a brief comparative study between theSAHRC and other national institutions in Africa will be conducted inChapter six. These include: the Ugandan Human Rights Commission(UHRC) and the Commission on Gender Equality (CGE) in South Africa.Finally, Chapter seven attempts to draw some tentative conclusions andafter some recommendations for the SAHRC and other national humanrights institutions in Africa with regard to their complaints’ handlingmechanisms.The sources used in this thesis include: relevant documents and reportsadopted by the UN and its various organs; relevant OAU documents andreports; legal texts; annual reports and other documents of the SAHRC,CGE, UHRC and other African human rights institutions. In addition,interviews were conducted with staff members of the SAHRC; the AfricanSecretariat of National Human Rights Institutions based at the SAHRC; aCommissioner of the UHRC; and NGOs working around human rights andconflict management issues. 11
  12. 12. CHAPTER 2 National Human Rights Institutions in AfricanThe African regional system for the promotion and protection of humanrights was created by the African Charter on Human and People’s Rights,which was adopted by the Heads of State and Government of theOrganisation of African Unity (OAU) – now the African Union - in Banjul,Gambia, on June 26, 1981.21 South Africa became party to the AfricanCharter on July 9, 1996. The adoption of the Charter was theculmination of a 20-year quest for a workable and still evolving regionalhuman rights mechanism for Africa.22 As a result, the Charter is a uniquecombination of international principles of human rights and Africanconcepts of people’s rights and duties. It is based on “third generationrights”, and in addition to giving equal importance to socio-economic andcivil and political rights, it also gives emphasis to the right todevelopment.The African Charter is the only regional convention that emphasisespeople’s rights. In addition, it grants duties not only to states to ensurethe enjoyment of rights, but also imposes certain duties on individualstowards family, community and the state, to ensure respect of theserights. Another unique feature of the African Charter is its emphasis onthe exhaustion of all domestic remedies before it is approached to handlecomplaints of human rights violations. This makes the regionalconvention subject to the authority and jurisdiction of nationallegislatures.At present, the enforcement mechanism of the African Charter is theAfrican Commission on Human and People’s Rights. 23 According to theAfrican Charter, the Commission has two main functions:• The promotion of rights in the Charter, which includes education about these rights and creating a culture of respect of rights; and• The protection of human rights, which entails the receipt and consideration of complaints about alleged violations of human rights.21 The OAU has now been replaced by the African Union (AU)22 Chidi Anselm Odinkalu, The Individuals Complaints Procedure of the Africa Commission onHuman and People’s Rights: A preliminary Assessment, 8 Trans’l L & Contemp. Probs. 359, p223 The ratification of the additional protocol for the establishment of an African Court has gonethrough. Discussions are now ongoing relating to its structure, functions, etc. 12
  13. 13. The Commission also has the responsibility of undertaking research onAfrican human rights problems, and to encourage member states topromote a culture of rights within their countries. It may also advisegovernments on how to translate the provisions of the African Charterinto their domestic laws.The Commission is made up of eleven Commissioners who are nominatedby states and elected by the OAU Assembly of Heads of State throughsecret ballot to a six-year term of office. Commissioners serve in theirpersonal capacities and not as representatives of their respectivegovernments. The members in turn elect the Chairman and ViceChairman. The Secretary-General of the OAU (now called the Chair of theAU Commission) then appoints the Secretary of the Commission.Commissioners are African personalities, selected on the basis of theirhigh reputation, morality, integrity, impartiality and competence inmatters related to human and people’s rights.Articles 47 and 53 of the African Charter allow complaints of humanrights violations to be lodged to the Commission by individuals and otherstate parties. The Commission makes non-binding recommendations. TheAfrica Charter provides for the establishment of human rightsinstitutions. The Charter further requires the African Commission toencourage the establishment of national institutions by member states.Many human rights institutions have now been established, mainly in thepast two to three decades, especially in the past ten years, as morestates have turned to democratic forms of governance or have attemptedto improve their democratic structures.24 A significant development in theglobal arena that contributed to the establishment of such institutionswas the end of the cold war by the early 1990s that led to the collapse ofthe Soviet Union. The significance of this event is that a number ofcommunist countries and other autocratic states all over the world beganto establish more democratic forms of government. During the cold war,several western governments had supported autocratic regimes incountries like Liberia, Somalia and Zaire. The end of the cold war led tomany western governments cutting off support to former cold war clientsand promoting democracy more consistently in Africa. Therefore, the endof the bipolar ideological system of the cold war era invariablynecessitated the establishment of institutions that could serve asimplementation mechanisms for the commitment and aspiration of statesand civil societies to monitor, promote, and protect human rights.2524 Supra, p125 See for example preface to Supra at 16 above 13
  14. 14. The establishment of national human rights institutions in Africa in the1990s can be attributed both to political transitions involving greaterliberalization and democratisation in many countries and to increasingawareness and acceptance by African governments (including repressiveones) of international human rights discourses. These governmentsacknowledged that human rights protections should be part of theirgovernment portfolios 26 even if only to keep up with international trendsand continue to receive economic assistance. It was indeed only after thedemocratisation wave of the 1990s that various bodies emerged such asthe office of the ombudsman, ministries of human rights, and in the caseof Malawi, the ministry of women affairs. Many post-reform constitutionsin post-cold war Africa made provisions for the establishment of humanrights commissions. In fact, 12 out of the 20 existing human rightscommissions on the continent have been constitutionally or legislativelycreated.27 These include the commissions in Algeria, Kenya, Ghana,Zambia, Benin, Uganda, and South Africa.The reasons for the establishment of human rights institutions, especiallyhuman rights commissions in Africa, can be explained by three principalfactors: First, the decade of the 1990s was an era of democracy, andsuch innovative changes were to be expected. The calls for the reformsthat swept through the continent in the early 1990s – the so-called“second wind of change” - also meant that the protection and promotionof human rights was placed on the top of the agenda of many Africanstates, particularly by civil society activists who spearheadeddemocratization efforts in many African countries like Zambia, Mali andBenin. The creation of national human rights commissions in Africa wastherefore, by and large, a manifestation of this regional political wave.Secondly, there was external pressure from the international donorcommunity for the promotion and protection of human rights in Africa.Increased international donor support for the creation of human rightscommissions by the mid-1990s served as a further impetus to Africangovernments to create human rights institutions, in part to reassuredonors of their commitment to human rights. For example, Kenya andZambia established human rights commissions shortly before donormeetings called to discuss the renewal of aid which had now been madeconditional on progress on human rights and economic reforms.2826 Human Rights Watch (2001) Protector or Pretenders: Government Human Rights Commissions inAfrica at http://www.hrw.org/reports/2001/africa/overview/summary on 10 /11/0227 Supra28 Supra 14
  15. 15. Finally, there were internal pressures to make a fresh start in Africa.There was a drive towards the promotion and protection of human rightson the continent. Article 26 of the African Charter encouraged this bypromoting the establishment of national human rights institutions bygovernments, providing that states shall, among other things “allow theestablishment and improvement of appropriate national institutionsentrusted with the promotion and protection of rights and freedoms…”.Furthermore, article 45 of the African Charter states that the AfricanCommission should encourage the creation of national and localinstitutions concerned with human and people’s rights. As a result, in itsPlan of Action for the years 1996 to 2001, adopted at its twentiethordinary session in Mauritius, the African Commission declared itsintention to encourage the establishment of national human rightsinstitutions in Africa and the development of a program to reinforce suchstructures.In order to promote and strengthen national institutions in Africa, threeconferences were held, starting with Yaounde, Cameroon, in 1996. Thismeeting drew up the Yaounde Declaration at which a CoordinatingCommittee of African National Institutions was established in closecollaboration with the International Coordination Committee and theUnited Nations Centre for Human Rights. Some of the objectives of theCoordinating Committee of African National Institutions include, amongothers, to facilitate the activities of National Institutions for mutualstrengthening in the discharge of their respective missions; to ensurefollow-up and implementation of recommendations of the regionalmeetings of African human rights institutions, the InternationalCoordinating Committee, United Nations bodies and other institutionswith which the Committee operates; and to encourage cooperationamong African national institutions and with intergovernmental and non-governmental organisations.The second human rights conference was held in Durban, South Africa, in1998. Its main objectives was to provide opportunities for Africaninstitutions to discuss strategies for promoting and protecting humanrights and to strengthen the capacity of such institutions to effectivelyundertake their respect mandates. The third meeting was held in Lome,Togo, in 2000, while the fourth took place in Kampala, Uganda in August2002. The Kampala Declaration of 16 August 2002 called for theestablishment of a Permanent Secretariat for African National HumanRights institutions to be hosted by the SAHRC for an initial period ofthree years. The Secretariat is the administrative arm of the CoordinatingCommittee and is responsible for organising meetings and compiling 15
  16. 16. reports of the Coordinating Committee. It is also mandated to follow upon the Declarations made at Conferences of African national humanrights institutions.Relationship between the African Commission and NationalHuman Rights InstitutionsThe relationship between the Africa Commission and national humanrights commissions in Africa has been a subject of some controversy.While this section is not aimed at providing any solutions or answers tothese controversial questions. I will highlight the linkages that exist andperhaps should exist between the African commission and its nationalcounterparts.The Commission has long recognised that the primary responsibility forthe promotion and protection of human rights lies with the state, andaccordingly “urged States to establish national human rights institutionsand to provide them with adequate financial resources and to ensuretheir independence”. The strategic importance of national institutions inthe promotion and protection of human rights rests on the fact that it isat national levels that rights are violated or denied and whatever remedythat a victim or survivor of human rights abuse may get is ultimatelyenforced or implemented at the domestic level.29In addition, the international human rights principle which requires theexhaustion of domestic remedies as a precondition for acceptance ofindividual and group complaints by regional and international institutions(with the exception of human rights violations that constitute crimesagainst humanity or war crimes), places tremendous responsibility onnational human rights institutions. 30 While national or regionalcharacteristics may influence institutional frameworks or the prioritisationof a human rights agenda, national institutions, through their work inlocal communities can and must increasingly give meaning to the conceptthat human rights are universal and indivisible.3129 Shadrack Gutto, Notes of response to the Keynote Address by the Honourable Mr JusticeYoussoupha Ndiaye, Chairman of the African Commission on Human and People’s Rights, at theSecond Conference of African National Institutions for the Promotion and Protection of HumanRights, Durban, South Africa, 1998 p430 Supra p531 Justice VS Malith Report by the Chairman of the International Coordinating Committee of theNational Institutions at the Second Conference of National Institutions for the Promotion andProtection of Human Rights, Durban, South Africa, 1998, p3 16
  17. 17. One of the vexing questions that long occupied the attention of theAfrican Commission was whether to grant observer status to nationalhuman rights institutions or whether to treat them as delegates ofgovernments when they attend the commission’s sessions. A workinggroup of commissioners was established to examine the issues. Itrecommended that national human rights institutions should berecognised as having separate identities, status, and speaking time atthe sessions of the African Commission, and that they should thereforebe granted observer status.At its 24th ordinary session in Banjul, the Gambia, the AfricanCommission adopted a resolution granting observer status to anynational human rights institution established on the continent andfunctioning according to internationally recognised norms andstandards.32 To facilitate this status, the Commission went on to laydown some criteria that should be fulfilled before observer status couldbe granted. These include the following four criteria:• The national institution should be duly established by law, constitution or by decree;• It shall be a national institution of a state party to the African Charter;• The national institution should conform to the Principles relating to the Status of National Institutions, i.e. the Paris Principles; and• A national institution shall formally apply for status in the African Commission.The Commission went further to lay down three main rights andresponsibilities of national institutions in terms of this resolution. Theyare: These institutions are to be invited to sessions of the Africa Commission according to rule 6 of the Rules and Procedures; They can be present in public sessions of the Commission and its subsidiary bodies; They can participate, without voting rights, in deliberations on issues, which are of interest to them and to submit proposals, which may be put to a vote at the request of any member of the Commission.In addition to the above responsibilities, national institutions are furtherrequired to submit reports to the Commission every two years on theiractivities in the promotion and protection of rights enshrined in theAfrican Charter and should assist the Commission in the promotion andprotection of rights at national level.32 See 12 Annual Activity Report of the Africa Commission on Human and People’s Rights 1998 –1999 IX. 39 17
  18. 18. While the African Commission has made provision for national institutionsto have standing in the Commission as affiliated institutions with adistinct status in relation to state delegates and NGOs with observerstatus, there is still very little synergy between the work of theCommission and national institutions. In addition, Article 45-(1) (c) of theAfrican Commission encourages cooperation with African institutionsconcerned with the promotion and protection of human rights. However,there is very little collaboration and therefore little contribution to thework of the African Commission in the work of national institutions andvice-versa. The African Commission and national human rightsinstitutions should develop a more systematic working relationship tofacilitate sharing of information, joint action and programming.The OAU’s first Ministerial Conference on Human Rights in Africa’s GrandBay Declaration recognised the lack of effective cooperation between theAfrican Commission and national human rights institutions and called forthe relationships to be formalised and strengthened.33 The AfricanCommission should provide national institutions with enhanced affiliatestatus and develop a clear working relationship, especially in the area offollow-up to the decisions, observations and recommendations of theCommission.34 Focal points for national human rights institutions shouldbe established in the Secretariat of the African Commission.It is hoped that the establishment, under the Yaonde Declaration, of theCoordinating Committee will provide an effective channel for closerinteraction between national institutions and the African Commission. TheCoordinating Committee should strive to create relationships with theSecretariat of the African Commission. The establishment of itsadministrative arm, the African Permanent Secretariat, will furtherenhance the work of the Coordinating Committee to be able to fulfill itsmandate effectively. The Secretariat should strive to provide thenecessary administrative support to strengthen the work of theCoordinating Committee in its goal of establishing links between theAfrican Commission and national institutions.One way in which national institutions could collaborate with the AfricanCommission is by ensuring that they prepare and submit their shadowreports timeously. Shadow reports by national institutions are useful33 Report of the Retreat of members of the African Commission facilitated by the Office of the HighCommissioner for Human Rights, African Union Conference Centre, Addis Ababa, Ethiopia, 24 – 26September 2003, p834 Supra 18
  19. 19. sources of information on human rights situation in individual countries.They could also be used alongside other sources of information toprepare reports and conclusions on the human rights situation in statesthat fail to submit periodic reports. 19
  20. 20. Chapter 3The South African Human Rights Commission at a glanceIn South Africa, the establishment of national human rights institutionsfor the promotion and protection of human rights should be understoodagainst the background of the general democratisation wave in theContinent and more specifically, the demise of apartheid. In 1994, SouthAfrica adopted a new Constitution, which ushered in a new democraticand constitutional dispensation and a new culture of governance basedon constitutional supremacy and respect of human rights. The adoptionof the Constitution was a very important step in the democratisationprocess of South Africa. But in reality, it is the manner and decisivenessin which the Constitution has been given content, which has determinewhether or not, it is indeed a living document that contributes to theenjoyment of human rights in the country.The new constitution provided for the establishment of certaininstitutions to support constitutional democracy by promoting andprotecting human rights, monitoring and advising government on, amongothers, observance of international human rights standards, andgenerally on how government can make human rights a reality for itscitizens. It is worth noting that the implementation of the Constitution isnot merely the establishment of these institutions, processes andstructures the Constitution envisages and the drafting and promulgationof laws. It is in performing these activities that these institutions areactually contributing to the strengthening of the democratic fabric of theSouth African society, including the promotion and protection of humanrights.The establishment of these Institutions was provided for in both theInterim (1993) and the Final (1996) Constitutions. The 1996 Constitutionin Chapter 9, provided for the establishment of judicial and quasi-judicialinstitutions to support constitutional democracy. Many of theseinstitutions protect human rights generally and specifically. Some of theinstitutions provided for in chapter nine include: the Commission onGender Equality (CGE), South African Human Rights Commission(SAHRC), Public Protector, (PP), Commission for the Promotion andProtection of the Rights of Cultural, Religious and Linguistic Communities(CPPR), Electoral Commission (EC) and the Auditor- General. Of all theseinstitutions, only three are tasked with investigation and resolvingcomplaints of human rights violations, i.e. the SAHRC, CGE and PP. The 20
  21. 21. PP focuses solely on complaints between the state and the public and itsfunctions and powers revolve around violations in the publicadministration. On the other hand the CGE’s protective mandate isnarrower in the sense that its focus is on gender equality.This thesis would focus exclusively on the SAHRC because it has a verybroad mandate, that of protecting and promoting human rights. TheSAHRC promotes human rights by among others, educating and trainingthe public about their rights, making policies on the rights in the Bill ofRights, giving advice to government, working with international humanrights bodies like the United Nations, etc. The SAHRC protects rights by,among others, taking steps to correct human rights violations anddeciding what investigations to hold about human rights violations, andhow these should be handled.Furthermore its mandate allows it to look at equality in general. Itsfounding statute, the Human Rights Commission Act 54 of 1994,specifically provides for the settlement of disputes arising from humanrights violations by mediation, conciliation and negotiation. This provisionhighlights the significance of alternative dispute resolution (ADR) and theworldwide support for ADR as opposed to litigation.The question that this thesis would attempt to explore is “to what extentdoes the SAHRC follow the provisions of this Act by promoting ADR insettling human rights violations as opposed to litigation”. To be able toanswer this question, I shall first examine the legislative framework thatestablishes the complaints handling mechanism of the SAHRC. Inaddition we will examine how the provisions of the legislation areimplemented in practice.Legislative frameworkThe SAHRC’s framework of operation is provided by three pieces oflegislation: The Interim Constitution, the Final Constitution and theHuman Rights Act 54 of 1994. The powers of the SAHRC in the 1996Constitution are very similar to those in the Interim Constitution. Theonly major difference is that the 1996 Constitution extends the powersin the 1993 constitution, by providing for the monitoring of socio –economic rights.The centerpiece of the Commission’s work to protect human rights is inits Complaints Handling Sub-programme of the Legal ServicesDepartment. The objectives of the Complaints Handling Sub-programme 21
  22. 22. are, among others correctly stated in its objectives, to provideconstitutional redress for complaints relating to human rights throughmediation; to make findings and recommendations and to monitor theimplementation of such recommendations. The manner in which theComplaints handling sub-Programme seeks to carry out these objectiveswill be considered more extensively later in the section dealing with theregulations and procedures of handling a complaint within the SAHRC.The Constitution:The functions of the SAHRC are provided for in section 184 of theConstitution as follows: The Human Rights Commission must- (a)promote respect for human rights and a culture of rights;(b) promote theprotection, development and attainment of human rights; and (c)monitor and access the observance of human rights in the Republic.The SAHRC has the powers, as regulated by national legislation,necessary to perform its functions, including the power –  to investigate and report and to report on the observance of human rights  to take steps to secure appropriate redress where human rights have been violated  to carry out research; and  to educateSection 181 of the Constitution requires the SAHRC to be impartial andwithout fear, favour or prejudice when exercising its powers. The SAHRChas to protect all rights enshrined in Chapter two of the Constitution,subject only to limitations contained in section 36 or elsewhere in the Bill.The Commission has the additional function of monitoring socio-economicrights.35 The independence of a national human rights institution isparamount, for it enables it to fulfill its mandate without interference.36Independence is particularly important for complaints handling as theinstitution is seen as a mediator or protector against the state, theprivate sector or the private individual.37 The independence andimpartiality of the SAHRC is provided for in the general sections dealingwith all the “State Institutions Supporting Constitutional Democracy”.35 Section 184 (3)36 Ricky Minyuku, Developing a complaint handling mechanism: the South African Human RightsCommission and the Commission on Gender Equality, 2000, p637 Supra 22
  23. 23. In section 181 (2) the Constitution provides for the independence of theSAHRC, and subject only to the Constitution and the law. This section isfurther supported by section 181 (3) which places a duty on the state toassist and protect the Commission in order to ensure its independence,impartiality, dignity and effectiveness. Moreover section 181 (4) providesthat “ no person or organ of the state may interfere with the functions ofthese institutions. Section 181 also states that all these institutions areaccountable to the National Assembly and requires them to report ontheir activities and the performance of their functions to the NA at leastonce a year. Provision is also made, in section 193, for appointment.Notable is allowance for the “involvement of civil society in therecommendation process”The Constitution further provides for the SAHRC to investigate andresolve human rights violations. These powers are supported by a widerange of functions including, research, monitoring, lobbying, educating,reporting and advising.The enabling legislationThe powers to investigate and resolve human rights violations of theSAHRC are further established in its founding legislation, the HumanRights Commission Act of 1994 and the regulations to this act developedin 1996. As a starting point, the Act reiterates what is already providedfor in the Constitution in terms of the independence and impartiality ofthe Commission. It states that “ a member of the staff of the Commissionshall serve impartially and independently and exercise or perform his orher powers , duties and functions in good faith and without fear, favour,bias or prejudice and subject only to the Constitution and the law”.38Section Seven requires the SAHRC to maintain close liaison withinstitutions, bodies or authorities similar to the Commission in order tofoster common policies and practices and to promote co-operation inrelation to the handling of complaints in cases of overlapping jurisdiction.Consequently, SAHRC works very closely with, among others, the Officeof the Public Protector and the Commission on Gender Equality. In the Western Cape for example, the SAHRC has established workingrelations with local NGOs, like the Centre for Conflict Resolution and haseven referred cases to them for either mediation or other support.SAHRC also works with (and not for) the government to ensure thatthere is follow-up and compliance with some of the recommendations ithas made to government.38 Section 4 (1) 23
  24. 24. One of the most important sections of this Act for the purposes of thisdiscussion is section 8. This section allows the Commission to try to settledisputes arising from a violation of a fundamental right by mediation,conciliation or negotiation. This provision highlights the worldwide trendof trying to settle disputes out of court. The Commission is allowed toinvestigate a complaint of its accord or at the instance of acomplainant.39 Sub-section 3 renders incriminating evidence inadmissibleagainst the person concerned in criminal proceedings.Furthermore, the Commission is authorised to enter, search premisesand attach and remove articles according to section 10. Subsection 1provides that “ any member of the Commission, or any member of thestaff of the Commission or a police officer authorised thereto by amember of the Commission, may[ …], for the purposes of aninvestigation, enter any premises on or in which anything concerned withthat investigation is or is suspected to be”.40 The SAHRC has to obtain awarrant from a magistrate or a judge before a search is carried out. Thesearch needs to be conducted in outmost care, with due regard todecency and the person’s dignity as a human being. So far theCommission has not had reason to use its search and seizure powers,and it is envisaged that these would only be used in the most exceptionalcircumstances. This seems to indicate that it has followed theinternational trend of trying to resolve disputes through conciliation andother forms of ADR, other than litigation.After very investigation, the Act requires the Commission to make itsfindings available to the complainant and any other person implicatedtherein, and under section 15(1) may make known its findings, view orrecommendations about any matter it has investigated.The RegulationsIn addition to the legislation, the SAHRC has Regulations, which controlthe complaint procedure. The Regulations further expand on the powersprovided for in the legislation. The Regulations set out the requirementsof a complaint, who may make a complaint, how it is assessed and thebasis on which the Commission may accept complaints.The procedure is such that when a complaint is received, it will gothrough a screening process to establish the following: whether or not it39 Section 940 Section 10 (1) 24
  25. 25. falls within the mandate of the Commission; whether the complaintsconstitutes a priema facie violation of, or threat to a fundamental humanright and whether to refer it to another body which may be better placedto deal with it. As the area of human rights is broad, almost everycomplaint received is related to or linked to one right or another. Butobviously the SAHRC was not designed to deal with all human rights-related cases. Hence the establishments of other bodies like the CGE forgender-related issues, ICD for police related complaints, OIJ forcomplaints related to the rights of prisoners and many others.If during the assessment, it is determined that that complaint be referredto another body, the SAHRC shall do so within a reasonable period oftime to allow for expedient resolution of the matter.41 Where therelevant official is unable to determine whether or not a matter fallswithin the jurisdiction of the Commission, the matter shall be referred toa Complaints Committee at Head Office for a final decision. A ComplaintsCommittee is made up of Commissioners who support the complainthandling mechanism of the Commission by providing advice and dealingwith some complaints of human rights violations.The SAHRC may reject a complaint if it occurred before the date on whichthe Constitution came into effect, i.e. 27 April 1996. In that case, theHuman Rights Act does not have any retrospective application before thisdate. A complaint may also be rejected if it does not constitute aviolation of a human right set out in section Chapter Two of theConstitution. Examples of these include, among others, civil claims,criminal claims, family law disputes, etc.Article 4 of the Regulations further provides for matters, which theCommission shall not deal with. For example, a complaint that isanonymous, or based on hearsay, rumor or media reports. Where acomplaints are based on media reports, the SAHRC may conduct aninquiry to verify any violations of human rights reported in the media. Ifit indeed constitutes a human rights violation, it would follow the normalcomplaints handling procedure of the Commission. Where a complaint isin offensive language, it may be dismissed immediately. However if itappears to involve a significant human rights violation, the complainantmay be given an opportunity to submit a fresh complaints usingrespectful and proper language.Complaints concerning matter, which are before a court of law, are to bedismissed on that basis. One of the reasons for this is that the41 Article 5 (d) of the Human Rights Commission Regulations 25
  26. 26. Commission wants to maintain its independence and impartiality at alltimes and not for its findings to be influenced by any court proceedings.The same principle applies to complaints referred to the Commission bylegal counsel. The SAHRC has by practice not entertained cases whereone or both of the parties is represented by a legal representative,because this automatically disadvantages those who cannot afford legalcouncil. However, if the legal representative withdraws its record, thenthe Commission may be involved.The Commission identifies itself with the disadvantaged and vulnerablepeople on the ground, who may be intimidated by legal proceedings andoffers them a safe space to settle their disputes. However, there isnothing stopping the Commission from handling, for example, a matterrelated specifically to discrimination in a civil or criminal suite, as long asthat matter does not form part of the judicial process of the court. But insuch instances, the Commission should still balance between theremedies that may be available on appeal and those that the SAHRC mayprovide. If the former carries more weight, then the Commission wouldnot intervene. In instances like these, the SAHRC would use its discretionto make a solution.If in the opinion of the Legal Officer screening the complaint, it is foundthat the complaint is frivolous, misconceived, unwarranted, andmanifestly incompatible with fundamental rights or does not comply withthe provisions of the SAHRC Regulations, then the complaints must berejected.42 Unlike complaints, which are dismissed because they are notto be dealt with, or those that are referred, the decision to reject acomplaint is appealable. The Regulations does not have any strictguidance or precedent to follow with regard to the above, and the LegalOfficers handling complaints use their discretion.Article 3 (g) of the Regulations further provides for complaints to belodged within three years of the occurrence of the alleged violation,provided the complainant shows good cause for the delay. One of thevery pragmatic reasons for this is that it would be challenging to obtaincredible evidence when the matter is old. In addition, it may not be fairto the respondent who may not be able to fully remember the incidentthat led to the alleged violation, and may therefore not be in a position toreply or respond to the allegations. However the Commission would notreject a matter before considering all factors.42 Article5 (e) of the Human Rights Commission Regulations 26
  27. 27. The screening or assessment process may also include an inspection inloco by the investigating team before even notifying the respondent. Thisis an important step as it helps legal officers to have first handexperience of the alleged violation. For example, where a complaint ofhuman rights violations in a farming community is lodged, investigatorsor legal officers may conduct an inspection to indeed ascertain the facts.There are a number of advantages to this step process: Firstly, this maypresent an opportunity to educate the farm owner about human rights,secondly, this may be an opportunity to engage with other stakeholders,like governments departments who may be responsible for providingcertain services. So inspections also provide an opportunity to alreadystart developing different options of resolving the matter withoutnecessarily going all the way to mediation.An example in this regard that is worth mentioning,43 was when SAHRCreceived a complaint about police harassment. Without notifying theStation Commander responsible, the legal team decided to conduct aninspection, which entailed engaging more with the complainant andothers involved. It was then discovered that the complainant wassuffering from mental illness, and hence the “harassment” by the Police.Without following a formal complaints procedure, the legal team, with thecooperation of the education officers decided to conduct human rightstraining for that police station, focusing on the rights of the mentallydisturbed. This served a multiple purposes: it challenged the police’sattitudes about mentally disturbed people, it provided them with insightson how to work more sensitively with mentally disturbed people and theirawareness and responsibilities about human rights were enhanced. Thisalso served the overarching purpose: the “harassment” stopped and thiscontributed to the people concerned having more faith in theCommissions ability to deal with complaints of human rights violations.Effective screening of cases is important – (1) to ensure that the SAHRCdoes not attempt to resolve disputes that fall outside of its mandate and(2) to help investigators decide which mechanism would be relevant in aparticular scenario. For example, once it is decided that SAHRC will behandling the case, the next question would be which dispute resolutionmechanism would be relevant for this case. I cannot imagine SAHRCinsisting on handling a matter through mediation when the disputingparties do not accept mediation and as a result do not freely and activelyparticipate in the process. This would obviously be against the very ethosthat the SAHRC is trying to promote.43 Provided at an interview with a legal officer from the SAHRC 27
  28. 28. An effective case selection criteria would also ensure that cases that fallwithin its mandate that are not likely to be resolved through mediation,negotiation or any other ADR mechanism that the SAHRC has, would bereferred to other institutions. Obviously a careful evaluation of casesprior to acceptance would lead to a high level of success and a positivereputation for the SAHRC. SAHRC seems to be on the right track in thisregard. However, it is not clear what strategy is used to decide whichparticular cases to handle in the avalanche of cases that are broughtbefore the Commission and fall within its mandate. It appears as if thecriteria used to decide on which case to deal with, and when, dependson the urgency and seriousness of the matter. For example, if acomplaint about racism at a nearby school is filed and it has the potentialto disrupt the writing of final examinations, the Legal Department mayprioritise this case over others and immediately act on it.The regulations further provide for a procedure to be followed after thescreening and the determination that indeed a complaint falls within themandate of the Commission. After a complaint is accepted, thecomplainant is requested to provide a full statement under oath to theCommission, if this has not happened during the screening stage. Thiswould allow the Commission to determine which procedure is relevantand appropriate for dealing with the complaint. Article seven of theRegulations requires that an attempt be made at resolving the matter bynegotiation and/ or conciliation. Depending on the nature of therelationship between the parties, conciliation may take place with little orno investigation. In most cases handled by the SAHRC, parties areamenable to conciliation and complaints are settled at this stage.SAHRC receives about 200 complaints a week.44 80% of those are relatedto discrimination on the basis of equality with most of them beingindividual complaints. The role of the Commission would be, amongothers, to educate, but more than anything else, to reconcile brokenrelations or build new ones. Conciliation provides the Commission withthe opportunity to do just that. This of course is subject to the parties tothe dispute agreeing to settle the dispute through conciliation.Where conciliation has not produced the desired outcomes, the nextattempts at resolving the dispute would be through mediate between theparties. Once the Commission decides to take this route, parties should44 Barney Pityana, National Human Right at Work: The Case of the South African Human Rights Commission,in K Hossain, LFM Besselink, HSG Sellassie, E Volker (eds), Human Rights Commissions and OmbudsmanOffices. National Experiences Throughout the World, Kluwer Law International, 2000, p9 28
  29. 29. be notified and given a chance to consent to the process, or appeal to theCommission within 45 days of the decision becoming known to them. Inthis process, it is important for both parties to consent to the mediation,to ensure that an agreement is reached at the end. Where one partyfeels coerced into a mediation process, the chances of that process beingsuccessful are very slim. In addition, the likelihood is high of the sameissues recurring in future and being lodged again before Commission oranother body.In cases where mediation fails, the matter could be referred to theComplaints Committee who will decide on the next appropriate steps tofollow. The Committee is not only approached when there is a need forclarity or guidance, but they are kept informed at all stages of the case.For example where the legal officers are not clear whether a matter fallswithin the Commission’s mandate, or when there’s a need to clarifyprocedural matters which are not explicitly provided for in theregulations, they may approach the Complaints Committee. ThisCommittee would then appoint a suitably qualified person, whether insideor outside of the Commission.Once a complaint is accepted by the SAHRC, it may be decided that thematter should be immediately investigated, rather than go through theconciliation, negotiation and mediation route. SAHRC does not have anyexpress guidelines or criteria for making this determination. But it wouldseem as if the urgency and seriousness of the matter would be thedetermining factor, in this regard. Also, legal officers handling the caseare expected to use their discretion, as long as it is still within the spiritof the legal framework of the SAHRC.An investigation would include written notification to the respondentoutlining among others, the rights that have been violated, the statementof the complaint and an invitation for the respondent to provide SAHRCwith a written response to the allegations. The letter would also advisethe respondent about the powers of the Commission, and depending onthe nature of the complaint, may include the power to mediate, conciliateand negotiate. In most serious cases, specific questions may be asked todirect the respondent’s response. In addition to the above, the letter mayalso request the respondent to suggest other alternative mechanisms forsettling the complaint.Once the respondent has furnished their response, it may be the end ofthe investigation and the Commission would then determine what nextsteps to be taken. The matter may be referred to conciliation, mediation 29
  30. 30. negotiation or the findings may be published. It may be that afterinvestigation, the SAHRC is unable to conclude the matter, theComplaints Committee may refer the matter to public hearing. Membersof the Complaints Committee assisted by two further persons delegatedby the Commission to assist in an advisory capacity shall preside over thehearings. The hearings may be open to the public unless public disclosurewould prejudice the successful conduct of the hearings or threaten thesecurity of the persons involved.45It may also be possible for the Commission to refer the matter to one ofits partner NGOs for assistance, and whatever decision that is takenwould be accepted by the Commission. Where for example, anorganisation like the Centre for Conflict Resolution is requested tointervene, the final outcome of that intervention would constitute theCommission’s final findings. This route may only be taken in specificcases of violations of human rights where the SAHRC feels that asettlement or resolution is important, and perhaps the SAHRC may notnecessarily have the capacity to deal with the matter as the otherorganisation.Referral at this stage is not only limited to partner NGOs, but it may bethat after investigation the SAHRC determines that the matter does notfall within its jurisdiction. In that case, the matter would be referred to amore suitable body for settlement. SAHRC has developed good workingrelationships with other Chapter Nine institutions. In one Province, theSAHRC has developed such a good relationship with the Public Protectorand the Commission on Gender Equality, such that most of the referralsare done in a very informal manner.The three offices have developed referral procedures that allows, forexample the SAHRC to literally, physically carry the file and sit with thecomplainant during the early stages of the referral. The reason for this“personal attention”, is that SAHRC feels that “they do not want thecomplainant to feel that they have been abandoned by theCommission”.46 In addition, complainants come to the SAHRC as theirvery last resort having been going all over the place looking remedies. Atsome instances, complainants are highly emotional and another referralmay upset them even further. Therefore guiding them through the newprocess or even where they may have been before, considering that theSAHRC may have been their last hope, may be a sign that they are not45 Article 10 (0) of the Human Rights Commission Regulations46 Interview with Legal Officer from SAHRC 30
  31. 31. taken for granted, and this may help increase their trust and confidencein the SAHRC.If the investigation of a complaint results in findings by the Commission,these may be published and that could bring an end to the internalcomplaint handling process and the case would be closed. As a matter ofpractice, the Commission usually makes recommendations afterconducting an investigation, even though it is not obliged in terms of theConstitution or its enabling legislation to make recommendations. TheSAHRC’s power to make recommendations can be divided into fivelevels.47 The power to make recommendations to: the national or provincial legislature government, including its substructures, or independent bodies private or semi-privatised business tribal authorities individuals and groupsIn certain instances, the Commission may still wish to follow up withaction to monitor compliance or implementation of its recommendations.But generally, due to limited resources, the Commission is unable tomonitor implementation of such agreement or of recommendations. Non-compliance would most probably only be recognised in the breach andthrough further complaints. It is constraints by relying on the good faithand cooperation of the institutions to which or about which it makesrecommendations since these recommendations are not legally binding ofthemselves.The Commission is only required by section 181 (5) of the Constitution toreport on its activities and the performance of its functions to theNational Assembly at least one a year. This it has done through itsannual report, and in it, the Commission would also give a generaloverview of the cases it has handled during that reporting year.Where complainants are not satisfied with the outcome of the complaint,they have the right to appeal to the Chairperson of the Commission. Inaddition, by approaching the SAHRC does not take away their rights toresort to other remedies available outside of the Commission. If they areunsatisfied, even after appeal to the Chairperson, complainants may still,for example, take the matter through the formal litigation process. TheCommission would then still close the investigation file and open aseparate litigation file. The Commission is very selective in the cases ittakes through to litigation. One of the criteria used to determine this47 ACCESS, July 1999, Volume 1, Quarterly 3, p5 - 6 31
  32. 32. would be whether the matter can effect law reform. As the formerChairperson of the SARC notes:“This is a step the Commission has been very reluctant to indulge in. Themain reason is that it is expensive to do so, but also that it is timeconsuming. And yet we see the courts as an important element in thedevelopment of human rights jurisprudence and in this the Commissionhas a important role to play. For that reason, we are selective aboutmatters we would be prepared to argue before the Constitutional Court.Generally it should be a matter that cannot otherwise be settled andwhich will establish legal precedent. The Commission, of course, is not ajudicial body and, as such, its findings and recommendations may needto be placed before a court for enforcement. We take the view, though,that until the findings in terms of Section 15 of the [Human RightsCommission] Act are challenges in court, they are binding on allparties.”48Other laws impacting on the complaint handling mechanism ofthe SAHRCPromotion of Equality and Prevention of Unfair Discrimination Act(PEPUDA)PEPUDA provides for the establishments of Equality Courts that wouldwork closely with the SAHRC. In terms of this Act, these courts wouldrefer certain cases to the SAHRC for resolution. The Act is very clear inthe manner in which the SAHRC is expected to deal with complaints. Itrequires the SAHRC to provide alternative dispute resolution serviceswhen dealing with cases that have been referred to it by the courts.49The Act will enable the Commission to act as a Commission, and not as aquasi-judicial bodyTo prepare for its work under this Act, the SAHRC has established thePEPUDA Unit. This Unit would work closely with the complaints handlingunit to deal with complaints around matters of equality.Although the Act has been passed, some sections of the Act are yet tocome into force48 Supra, p 1049 ACCESS, July 2000, Volume 2, Quartely 3, p21 32
  33. 33. Promotion of Access to Information Act (PAIA)PAIA came into force on March 9, 2001. In terms of this Act, people areentitled to obtain any information that is held by both public and privatebodies that they may need for specific purposes. The SAHRC has onnumerous occasions been approached to deal with cases around section32 of the Bill of Rights. In that case, the Commission would use theprovisions of PAIA as guidance in resolving the disputes. The PAIA unit atthe Human Rights Commission is responsible for implementing this Act.It is clear from the above that complaints form a major part of the workof the Commission. They are the face of the Commission because it is atthis point that people get to know about what the Commission is allabout. It is therefore imperative that the Commission does not onlyresolve, but it should be seen to be resolving and dealing effectively andefficiently with complaints it receives. As the former Chair notes: “ thevalue of a national institution in a democracy is that it affords manyordinary people an opportunity to be heard sympathetically. People needto have the assurance that without cost to themselves and at a minimalinconvenience, they can approach an institution of ordinary people tocome to their assistance. We believe that a national institution canensure justice to ordinary people speedily, with minimal fuss and,hopefully, in a less adversarial environment. This requires an attitude ofopenness and availability”.50Mechanisms used to resolve such complaints are just as equallyimportant as they would determine whether the Commission is able toresolve these disputes. It is also on the basis of those mechanisms thatthe Commission’s success in complaints handling would be evaluated. Inaddition, mechanisms used to handle complaints should reflect the valuesthat a national institution like the Human Rights Commission, stands for.These would include, among others, the values of dignity, equality, andothers, which form the basis of our democratic constitution. It isimportant that in whatever it is doing, the Commission contributes to thebroader democratic fabric of the South African society.Furthermore, it is imperative that the determination of complaints shouldhave due regard to the overall strategy of the SAHRC. For example, thecomplaints would need to take into account the priorities that the SAHRChas set for itself in its endeavor to contribute to the promotion, andprotection of human rights. One of its priorities is with regard to socio-50 Supra at 52 above, p 10-11 33
  34. 34. economic rights, their realisation still presenting challenges to ourdemocracy. So the complaints handling procedures impact on a numberof issues, both internal and external of the Commission.In the next chapter, we will look at how using alternative disputeresolution may assist the Human Rights Commission in furthering itsmandate. The Chapter would explore the relevance of ADR to thecomplaints handling mechanism of the SAHRC and how it may impact onthe overall development of a culture of rights in South Africa. 34
  35. 35. CHAPTER 4 The relevance of Alternative Dispute Resolution for the South African Human Rights CommissionA brief history of ADRDispute resolution outside of the formal traditional court process is notnew. Societies have long used non-judicial, indigenous methods toresolve conflicts. What is new is the extensive promotion andproliferation of ADR models, wider use of court-connected ADR and theincreasing use of ADR as a tool to realise goals broader than thesettlement of specific disputes.51The ADR movement is based on the premise that “Society cannot andshould not rely exclusively on the courts for the resolution of disputes.Other mechanisms may be superior in a variety of controversies. Theymay be less expensive, faster, less intimidating, more sensitive todisputants’ concerns, and more responsive to underlying problems. Theymay dispense better justice, result in less alienation, produce a feelingthat a dispute was actually heard and fulfil a need to retain control by nothandling the dispute over to lawyers, judges, and the intricacies of thelegal system.”52According to Brunet and Craver,53 even though it is challenging to testthe hypothesis of the superiority of ADR to court judgements, there are afew considerations to be taken into account, which may be relevant tothis study. They are the following: Firstly, adjudication is characterisedby a “winner-takes-all” outcome. ADR by contrast, strives for a win-winsolution where both parties give a little something to get something inreturn. It is characterised by voluntary compromises where parties try todeal with the dispute in a more constructive manner to ensure that theyboth win at the end of the day. While litigation is rigid and predictable inform, ADR offer complainants the flexibility to go beyond the legal scope51 Alternative Dispute Resolution Practitioners Guide, Technical Publication Series by the Office of Democracyand Governance, Bureau for Democracy, Conflict and Humanitarian Assistance, US Agency for InternationalDevelopment, March 1998, p552 Richard A. Salem, The Alternative Dispute Resolution Movement- An Overview, Paper preparedfor the Association of Labor Relations Agencies- 10/ 84, p153 Edward Brunet and Charles B. Craver, Alternative Dispute Resolution: The Advocate’sPerspectives. Cases and Materials, MICHIE Law Publishers, Charlottesville, Virginia, 1997, p12 - 13 35
  36. 36. of their disputes, and “those solutions may be far more novel than anyremedy a court has the power to provide”54Secondly, in cases involving complex institutions, negotiations conductedby executives are likely to yield results superior to those conducted bylawyers. The executives are far more familiar than their lawyers with thenuances or intricacies of their business and can respond more quickly andcreatively to proposals that their counterparts. This is not meant todiminish the role of lawyers in negotiations. Clearly their legal knowledgewill often be crucial to successful settlements.Thirdly, properly designed ADR processes make it more likely thatsettlement decisions will be based on the merits of disputes. Lastly,another reason to think that ADR leads to better outcomes is that theuse of private third parties, in this case, officials of the legal servicesdepartment of SAHRC, permits parties to submit their disputes to peoplewith greater expertise in their particular subject, in this case humanrights.ADR for the purposes of this study shall include all other forms of disputeresolution other than litigation or adjudication through the courts thatprovides an opportunity for relationship building and needs, interests,concerns and specific fears of disputants being met. Over the years thefield of ADR has grown so tremendously such that there are manydifferent mechanisms used by people all over the world. Figure threebelow, gives an overview of some of the different ADR mechanisms thathave been established and used over the years :54 Supra, p 13 36
  37. 37. Dispute Panels Negotiation Mediation Mini-trial Arbitration ConciliationSettlementconference Informal Alternative Dispute discussions Resolution Mechanisms Problem Public solving hearings Partnering Counseling Peer review Ombudsperson Fact Finding 37
  38. 38. The study would focus exclusively with ADR methods that are specificallyprovided for in the legislative framework of the SAHRC. These areconciliation, mediation and negotiation. In addition to the above, theSAHRC uses public hearings as a method of handling human rightsconcerns. The main difference between public hearings and the othermechanisms is that, as their name suggests, they are public and areused in class or group action, whereas the others are conducted inprivate. Another distinction is that where public hearings are concerned,the parties are allowed legal representation, whereas with the other threemechanisms, the Commission would prefer to deal directly withcomplaints. It is also important to note at this stage that by resorting tothe use of ADR in resolving disputes or complaints of human rightsviolations, does not take away the disputants’ legal rights to file a formalcomplaint or grievance. ADR does not replace the judicial system, it is analternative route to access justice through other forms outside of theformal traditional legal system.The following are definitions of the three most-widely-used ADR methodsof the SAHRC:55MediationMediation refers to a process through which a third party providesprocedural assistance to help individuals or groups in conflict to resolvetheir differences. Mediation processes vary throughout the world in formand underlying philosophy. In many Western countries, the mediator isusually an independent, impartial person who has no decision-makingauthority. In other societies, it may be more important that the mediatoris known and trusted by the parties rather than being seen as impartial.Mediation is a voluntary process and its success is linked to the vesting ofdecision-making authority in the parties involved in the dispute. Themediator structures the process in a way, which creates a safeenvironment for parties to discuss the conflict and find solutions, whichwill meet their interests.56The third party controls the process; the parties determine the outcome.Some of the benefits of mediation include the following; It is based uponthe assumption that (1) there are a variety of solutions to the issues55 The definitions are drawn from a number of sources, including: The dictionary of conflict resolution,Christine Bell, Peace Agreements and Human Rights, Oxford University Press 2000, p318, Conflict ResolutionManual of UN DESA, 2001, p7 and p1656 Supra at 57 above 38
  39. 39. raised all of which are potentially acceptable to the disputants (neitherdisputant has to lose, both, in fact, can win); (2) each case is differentand any resolution must take into account its unique contextual features;(3) these are private issues and are best decided by norms establishedby the parties involved, fine tuned to their particular relationship; (4)these cases must include a process for emotional settlement, not simplyresolution of the “legal” or “ethical” issues; and (5) the parties will bemuch likely to comply with the resolution of the case if they determinethe outcome.57ConciliationConciliation involves building a positive relationship between the partiesto a dispute. A third party or conciliator (who may or may not be totallyneutral to the interests of the parties) may be used by the parties to helpbuild such relationships. A conciliator may assist parties by helping toestablish communication, clarifying misperceptions, dealing with strongemotions, and building the trust necessary for cooperative problem-solving. Some of the techniques used by conciliators include providing fora neutral meeting place, carrying initial messages between/among theparties, reality testing regarding perceptions or misperceptions, andaffirming the parties abilities to work together. Since a general objectiveof conciliation is often to promote openness by the parties (to take therisk to begin negotiations), this method allows parties to begin dialogues,get to know each other better, build positive perceptions, and enhancetrust. Conciliation is meant for parties to arrive at a win-win settlement.NegotiationNegotiation is a voluntary attempt to resolve disputes that arise fromcompeting needs, interests and goals. It is a problem-solving approach inwhich parties seek agreement rather than resort to violence and force.Negotiation generally refers to the process conferring with another partywith the purpose of securing agreements on some matters of commoninterest. It is a conciliatory process where parties engage in back andforth communications in an effort to adjust differences. Informalnegotiation occurs daily among friends, family, and coworkers for thepurposes of adjusting or redefining relationships. In negotiations partiesuse their respective leverage to fashion the agreement betweenthemselves. Hence the parties control both the process and the outcome.The negotiation process includes all benefits of mediation like solving a57 Diane Hoffman, Mediating Life and Death Decisions, 36 Ariz.L.Rev.821,825 (1994) cited in Supraat 57 p 19 39
  40. 40. problem in a rational way, vesting participants in the settlement reached,etcA distinction should be made between positional negotiation andinterests-based negotiation. In positional negotiation, parties make offersand start to converge on a solution, which both parties find acceptable.Success at positional negotiation is based on a party’s ability to bluff theother party about its position of strength and weakness in order to gainan outcome, which is in their favour. Interest-based negotiation, on theother hand, is designed for parties who have a need to create or maintainhealthy relationships. In this type of process, parties discuss the issues,which face them and express the interests, values and needs that bringthem to the table. Instead of focusing on competitive measure andwinning negotiation, parties collaborate by looking to create solutionwhich maximise the meeting of their interests, values and needs.The following (Figure 2) is a graphic explanation of the ADR methodswithin the SAHRC and their use.58 On the left of the continuum isconciliation. It can be the most private and can be most efficient method.It is the least adversarial and ideally results in a solution that is jointlyselected by the parties, On the far left of the continuum is litigation,which is public and adversarial and the magistrate or judge decides onthe outcome of the dispute. The further you move towards the right, theless flexible it becomes. Conciliation Negotiation Mediation Public Litigation HearingsDescription Voluntary Voluntary Mediator(s) Voluntary Magistrate or relationship problem assist parties class or group judge hears building solving in reaching a complaint case process to approach by settlement presentation work towards parties to & issues a other reach joint binding problem settlement decision solving subject to techniques appealThird party Third party May or may Neutral and Impartial and Magistrate/ may or may not use a impartial Neutral third Judge not be neutral neutral third third party party. May party use legal representatio n58 Adapted from Manual On Alternative Dispute Resolution by the Alternative Dispute Resolution Committeeof the Colorado Bar Association, 1992 Colorado Bar Association 40

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