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Khulumani Submission for the Universal Peer Review at the United Nations of South Africa's Human Rights Performance

Khulumani's Advocacy Team produced this submission to the United Nations Human Rights Council for South Africa's peer review of its human rights performance.

Background: The Universal Periodic Review (UPR) process is a peer-review mechanism amongst member states of the United Nations.

Purpose of the South Africa Civil Society Pre-UPR Consultation: To reflect on the 2nd Cycle of the process and potential inputs from South African Civil Society to South Africa’s 3rd UPR Cycle. This resource document highlighted the human rights challenges facing CSOs when dealing with multinational corporations.

A Case Study of the Denial of Constitutional Rights in the Marikana Mine Workers Saga:
The killing of striking mine workers at Marikana on 16 August 2012 has been framed as a denial to the mine workers of the right to association; to peaceful assembly and to the right to expression when all the efforts of the striking mine workers to engage the management at the mine where they were employed, failed.

i) In respect of the constitutional right to freedom of association, there was a restriction of this right for the striking Marikana mine workers to associate with whomever and whatever organization they might choose. The majority of the mine workers had associated themselves with AMCU, the Association of Mine and Construction Workers and with WASP, the Workers’ Socialist Party.

The state and the company interpreted these choices as attempts by the mine workers to advance an agenda that might undermine the state and its law enforcement agencies. However, the actions of the mine workers represented their choice to associate with organizations that they had come to trust and which they believed had their best interests at heart. AMCU, for example, had assisted with the costs of funerals for deceased mine workers when both the state and the company which employed the mine workers, had refused to do so. One of the leaders of the locally-based political party, WASP, a Swedish citizen who was married to a South African, was continuously harassed by the state and was subsequently denied the right to return to join her husband in South Africa.

ii) In respect of the constitutional right to freedom of expression, there is evidence of increasing intolerance on the part of the state to provide space to listen. The state and corporations have responded to requests for dialogue with bullying tactics with advocacy CSO’s such as Right2Know being perceived as a threat to the state. Right2Know activists have been under surveillance by state security agents. Some attempts were made to recruit activists as informers on the activities of Right2Know.

The employment by LONMIN at its Marikana mine of Mr Barnard Mokwena, allegedly a former security police man, has been questioned given Mr Mokwena’s stance on AMCU that he believed it was behind the 2012 strike at Marikana. (See attached Business Day article)

Every attempt by the mine workers to speak to LONMIN management failed. As the workers stood their ground in demanding dialogue, LONMIN’s management panicked and armed themselves. After several attempts by the government and mine management to disperse the worker gatherings it was then decided that they have to forcefully removed. This presented a challenge because the miners were also determined to fight for what was due to them, that being better pay, better living conditions, better services from government and benefits for their families. In respect of the tragic ending of the mine workers’ efforts to be heard, the question remains, “Was it wrong for the mine workers to try to exercise their right to freedom of expression?”

iii) In respect of the constitutional right to freedom of assembly, at Marikana it appears that the state and the corporation interpreted the efforts of the mine workers to assemble to discuss their
need for wage increases, was perceived as an organized attempt to undermine both the corporation and the state.

The right to freedom of assembly was continuously denied activists protesting against apartheid on grounds that allowing people to assemble would provide for the free exchange of ideas, the
collective raising of voices and the potential to have wider influence across the society and the world.

In Marikana, the assembled mine workers discussed the serious issues affecting them, mainly their wages, their living conditions, their indebtedness and their inability to provide for their families. They asked how a mine that produces so much wealth for tis shareholders could fail to take care of its workers. They asked about the 5,000 houses that the mining company had committed to building with funds from the International Finance Corporation of the World Bank.

Ordinary citizens who come from poor backgrounds and whose husbands were killed in the Marikana tragedy have become the voice of the voiceless. We can mention a few women like Ms. Zibambela, whose husband was killed at the Marikana massacre, who has now become an activist for basic human rights. The death of their husbands left big holes in their hearts and their lives and those of their children. Up to this point, neither LONMIN or the state has made reparations to these families. Some are still living in horrible conditions.

What Went Wrong at Marikana? What is Going Wrong Now?
South Africa’s peaceful transition had given hope to the world. But the events at Marikana have taken us back to policing practices that existed under apartheid. Sadly, it appears that the lessons of Marikana seem not to have been learned as SABC intensifies its censorship of the flow of information to citizens.

The Consequences of Denying Citizens their Constitutional Rights
A government stops being a legitimate government when it begins to undermine or suppress the basic human rights of a country’s people. The UPR report contains recommendations made to the South Africa government. Despite being apparently reasonable recommendations, the South African government has apparently ignored these recommendations. One example is the rejection by the South African government of the Polish recommendations to “further strengthen freedom of expression and access to public domain information, particularly at community level and with government departments” (124.97).

A further recommendation rejected by the South African state, is the recommendation of the United States for the state to more consistently engage civil society, activists, NGOs and media to seek common ground on the protection of state information bill (124.106).

The failure to adopt these recommendations reflects a restriction of the commitment to open government and the Open Government Partnership in South Africa.

The Critical Role of CSOs
CSOs are crucial to the agenda of developing open and responsive governance. It is crucial to empower civil society with information to advance efforts to hold government accountable and to give substance to the form of participatory citizenship provided for in our Constitution.

Information must be shared widely to keep government in check so that they serve citizens as opposed to controlling citizens.

CSOs also play a crucial role in monitoring the behavior of multinational companies who operate within local communities. Empowered citizens serve as the eyes and ears of the community in terms of harmful practices by companies.

Conclusion
The United Nations Human Rights Council is the structure with the capacity to put pressure on countries that violate human rights. Failure by states to remedy such situations should result in the implementation of sanctions against such countries. But there are concerns that the role of the United Nations has been diminished globally.

Khulumani Support Group endorses the efforts of the South African government to advocate for a binding treaty on corporate accountability as voluntary guidelines have failed to provide the levels of accountability that are needed.

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