Opening Remarks by the Deputy Minister van der Merwe to the Seminar on Economic, Social and Cultural Rights under the African Charter Pretoria 13 September 2004

Distinguished Delegates
Ladies and Gentlemen:

On behalf of the Government and people of South Africa I would like to welcome each and every one of you to our country. Your presence in this room, your participation in this dialogue represents an unequivocal will and a genuine and heartfelt desire to take up the fullness of the challenges presented to us as Africans, under the African Charter on Human and Peoples' Rights.

I am pleased to have been invited here to share my thoughts at the opening of this important discussion on economic, social and cultural rights under the African Charter.

I think it is important that we locate this discussion within its broader context of entrenching peace and stability, democratization and the attainment of sustainable economic and social development. Within this broader milieu of change the role of the African people as their own liberators should also be emphasised .

The last decade of the 20th Century witnessed the start of the second wave of democracy to sweep the African continent. This second wave also co-incided with the culmination of our own liberation struggle in South Africa and the holding of our first democratic elections in 1994 that ushered in a new era for the people of this country.
In fact the early years of the 1990s saw extensive discussions and negotiations between different parties and people in South Africa to reach common ground, to avoid misunderstanding and conflict and to provide an agreed-upon framework for the establishment of a new state. Without these processes, arguably the transition to a new South Africa would not have been as peaceful as it was and the ground would not have been prepared for the changes that were to come.

Our own experiences in this regard necessitated that the transformation itself of society, of the economy, should involve not only changing the legislative framework and putting in place new policies and action plans, but also that we carry out certain political processes to promote unity and to encourage reconciliation, that we put in place mechanisms and set up independent institutions to safeguard freedoms and rights. We also recognized that an all-embracing approach meant as well that we would need to actively affirm an African identity.

Thus at the adoption of our New Constitution in 1996, then Deputy President Thabo Mbeki declared proudly: "I am an African." This statement may have been an ordinary and perhaps obvious one for those in the rest of Africa, but for us in South Africa it was more than that. It was not simply a statement of fact, but it was both an act of consciousness - asserting both the right to be and the right to be free - and it was also an act of faith in an African future - a declaration to the world that South Africa is of the African continent and not apart.

This was the first important step towards cultural, social, political and economic integration from a new country whose predecessor had for decades of apartheid rule considered itself as other, as different, as part of a Western world that could exploit Africa as it wished. This fundamental change in identity was almost as if the country had shed its skin and was now revealing its true self, beginning to articulate its own values, its own systems of thoughts, re-thinking, re-shaping and re-fashioning itself as an African nation.

Through these words, President Mbeki also managed to bring together different ideological strands of the South African liberation movement into a composite and comprehensive understanding of what it meant to belong to a people, a free nation and a new country on the African continent. It was a profound rejection of our colonial and apartheid past, its negation of respect for human rights and the concomitant suffering it entailed and its very denial of African people as equal to others, instead reducing them to the realm of non-Europeans and hence non-people. It looked to the possibility of an egalitarian society and a world in which Africa could take its rightful, proud and equal place among other continents on the international centre-stage.

He opened the road for people to recognize their own powers and both to imagine and construct a reality in which they really were free to be whatever they wanted to be, to believe that Africa could succeed, that indeed we have it within our powers to end the long impoverishment of our people and to build a prosperous future. This could be seen as marking the beginning of a new and united South African nation hard at work in collective action to build a better life for all.

Thus the preamble to the new Constitution in no uncertain terms declared that: "South Africa belongs to all who live in it, united in our diversity" and acknowledged the need to "heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights" and "to lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by the law."

A Bill of Rights was accepted as a cornerstone of democracy, enshrining and inscribing the rights of all people in the country and affirming the democratic values of human dignity, equality and freedom. These rights included the right to equality before the law, the right to dignity, to freedom and security of person, of religion, of expression, of political rights. It also included the right to access to health care, food, water and social security, the right to basic education, to use language and participate in the cultural life of one's choice, the rights of cultural, linguistic and cultural minorities as well as access to information, freedom of trade, the right to an environment that is not harmful etc.

This has been the South African framework that has created new space for democratic participation since 1994, allowing the South African people to assert themselves individually and collectively and to protect their rights. This framework is still being further forged on the ground as people become more conscious of the extent of their rights, as we deepen democratic life, as we cement relations between government and people, and as communities begin to see how these rights can help them to improve their daily lives.

But in the international arena, as African countries it is also necessary that we commit ourselves jointly as governments and as civil society to the re-affirmation of our identity as Africans, and to ensure the entrenched protection of the human rights of all our peoples.

Certainly we need to work in tandem with other African Governments and other continental structures to ensure greater protection and enjoyment of all human rights, and in particular the economic, social and cultural rights of all our people.

While all internationally recognised human rights are deemed to be inalienable, indivisible and interdependent, the protection by Governments of civil and political rights can more easily be immediately realised through appropriate political will, legislation, monitoring and policing. Second and third generation economic, social and cultural rights are more difficult to focus on. The protection and promotion of economic, social and cultural rights presents us with greater challenges as these rights are based on the notion of progressive realization.

But what strengthen our capacity to deal with these rights are the broad spectrum of existing initiatives that are being pursued at the continental level to protect and guarantee human rights in general.

As Africa, we have embarked on a comprehensive transformation, reform and renewal strategy that has as its over-arching objective to break the vicious cycle of political instability, to address the lack of a human rights culture, to end poverty and underdevelopment, and to improve Africa's capacity to defend and advance its own interests as countries, regional blocs and as an All-African project in the global arena.

The key building blocks of this strategy have been increased political unity and concerted action through the African Union (AU), as well as accelerated socio-economic transformation through the macro-economic development programme of the AU, namely, the New Partnership for Africa's Development (NEPAD).

The establishment of the AU through the Constitutive Act, with its profound vision and progressive principles, has generated high expectations for rapid political, social and economic progress. NEPAD seeks to complement the Constitutive Act by providing a holistic, comprehensive and integrated strategic policy framework and programme of action.

The Constitutive Act sets out the core values and principles that the continent is committed to following while NEPAD has sought to implement these values and principles in a concrete manner and, in this regard, has identified a number of conditions for sustainable development and growth, including Democracy and Good Political, Economic and Corporate Governance.

The Constitutive Act of the African Union (AU), in its Preamble, explicitly acknowledges the promotion and protection of human and people's rights, the consolidation of democratic institutions and culture, as well as the protection of human and people's rights, the consolidation of democratic institutions and culture, and ensuring good governance and the rule of law. The Preamble also acknowledges the need to build a partnership between governments and all segments of civil society, in particular women, youth and the private sector, in order to strengthen solidarity and cohesion among Africa's peoples.

In order to give effect to these undertakings, a Peace and Security Council, African Court of Justice, Pan-African Parliament and Economic, Social and Cultural Council have been or are being created as organs of the AU.
In addition, the African Commission on Human and Peoples' Rights (ACHPR) was created under the Charter. Two important Protocols also flow from the Charter, namely, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, which is currently being ratified by Member States, and the Protocol establishing the African Court on Human and Peoples Rights, which has recently come into force.

The latter Protocol is complementary to the work of the African Commission on Human and Peoples' Rights (ACHPR) and ensures greater protection and remedies for the victims of human rights abuses.

Furthermore, the African Peer Review Mechanism (APRM) has been developed under the NEPAD process in order to promote democracy, good governance and the attainment of peace and stability. It is the first mechanism of its kind in the world, and reflects the commitment of African States to open their governments to scrutiny. The APRM is both significant and revolutionary in that it addresses the fundamental issues of credibility and sustainability of policy reforms in a credible, transparent manner and it breaks new ground

It is in the context of these latter day developments that the rights in the African Charter should be seen.
Moreover, the vast majority of African countries have also ratified the six fundamental human rights treaties of the United Nations that elaborate in detail the Universal Declaration of Human Rights, namely the International Convention on the Elimination of Racial Discrimination (ICERD), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC).

It is important to reiterate that all fifty-three member states of the AU have become parties to the African Charter on Human and People's Rights. Certainly, the acceptance of the Charter by all Member States of the AU bodes well and strengthens the moral force of the Charter on the African continent.

What ought to be highlighted about the African Charter for discussion are the following four important areas:
· The Charter provides a clear statement about the indivisibility of human rights by including first, second and third generation rights alongside each other in a single document.
· The inclusion of third generation rights is closely linked to the second feature, which is "peoples' rights". Thus the rights recognised are not only those of individuals, but also of "peoples". Thus peoples have the right, amongst others, to existence, to self-determination, to freely dispose of their natural resources, and to development.
· Another distinguishing feature is the emphasis placed on individual "duties". The individual has duties towards other individuals, his or her family, towards the community, towards the state whose nationality he or she happens to possess, and to the African and international community.
· Fourthly, "African" moral values are included in the Preamble and in the emphasis on the family. States are under a duty to promote and protect "morals and traditional values recognised by the community".

These four important areas offer us challenges that this seminar ought to take up as we attempt to entrench human and peoples' rights on the African continent. Moreover, the relationships between economic development and social progress as well as the realization of cultural advancement need to further fleshed out. An African renaissance can only be accomplished through wading through these different yet related areas, so that we move forward through an integrated, co-ordinated approach that seeks to unite these concerns rather than address them separately.

I have attempted to describe the South African experience, young as it may well be and to briefly describe the current continental framework in place that should serve to protect and advance economic, social and cultural rights, amongst others. Now the urgent tasks at hand are to ensure that the mechanisms and institutions we have in our possession become dynamic, meaningful entities that perform the tasks that they are mandated to perform.

I believe that the political will is there to succeed. The challenge however remains for the provision of to ensure that the ideals espoused are advanced in a concrete manner and that we give tangible content to these rights.
The field of economic, social and cultural rights requires the allocation and prioritization of resources to make them a living reality that is won for African people on the ground, as these rights collectively will have the most impact in terms of securing a better quality of life for people at grass roots level.

But the resources needed are not simply financial but also intellectual - in coming to this seminar you are already contributing your knowledge and ideas to the attainment of these rights. Your intellectual contribution is highly appreciated as are your efforts to popularize the African Charter.

Enshrined in the Charter is ultimately an assertion of the fundamental right to be, the right to be African, the right to possess the present and the future - and to shape the world from our African worldview that will take us to a common destination of development.

The future is not bleak and even this week we shall witness the Pan African Parliament being inaugurated in its permanent home in South Africa. Let the discussions at this seminar move us forward to another homecoming in our assertion of the economic, social and cultural rights of the African people.

I wish you well in your deliberations and look forward to seeing your concrete recommendations on the course of actions that should be taken.

I thank you.