Who is the watchdog of the watchdogs?
Updated: Oct 31, 2022
Today marks the sixth anniversary of my first trip to Geneva as an observer at the United Nations.
Below are my thoughts from a layman’s perspective written back in 2018, and as a newcomer to this international forum called the UN; a global organization which holds the distinction as a superior legal and moral entity/authority.
Photo: Kiersten Dunbar Chace
Timeline of events:
Sep 6, 2015: UN Visit
Nov 8, 2015: Constitutional Court trial for the DCS workers discrimination case
Aug 8, 2015: UN ICERD review of South Africa
Title: Who is the watchdog of the watchdogs?
In 1945, after two bloody World Wars, the United Nations was established with the goal of preventing wars of this scale from happening again. A few years later in 1948, the United Nations introduced the ‘Convention on the Prevention and Punishment of the Crime of Genocide’ which held countries accountable for preventing and punishing acts of genocide, whether in war or in peacetime. It was a noble endeavor but unfortunately, since 1948, we have witnessed many failures by the UN to monitor potential threats and enforce its own laws. This includes Rwanda, Darfur, Sri Lanka, Srebrenica massacre, Khmer Rouge, and other significant violent crimes against humanity. Despite the obvious signs of cultural genocide (the slow destruction of cultural heritage or which I call the stepping stones leading to genocide) these atrocities still took place. (See my blog on Cultural Genocide) It still baffles me how Kofi Annan never stepped in to intervene earlier in Rwanda, even after being made aware there were warning signs. He even made a public statement expressing he could have and should have done more to stop the genocide. “The international community is guilty of sins of omission.” And “I believed at that time that I was doing my best.”
Again I ask… who is the watchdog of the watchdogs?
In late August 2015, Judge Chris Greenland and I were invited to join the South African trade union, Solidarity, in their presentation of a Shadow Report against their government titled: ‘Constructing A Future Based on Race: Racial Representivity Through Affirmative Action and Broad Based Black Economic Empowerment in South Africa’. This was being presented to ICERD (International Convention on the Elimination of all forms of Racial Discrimination). Please note that neither I was not involved in any way with the formation of their document, nor was I paid by or accepted any gifts from this organization. Our decision to go as observers was our recognizing how important it was to have representation or at minimal, a voice for the Coloured community at the UN. Unfortunately, Judge Greenland could not get his visa turned around in time and with his blessing, myself and one of my Executive Producers, went to observe and film Solidarity’s presentation.
If you were to ask me today, what my greatest takeaway was from this journey to the United Nations, or maybe I should say my saddest takeaway, it would be my naïve assumption that UN rapporteurs were fully versed on the issues facing their assigned country of representation. Especially when it comes to South Africa. A democracy still in its infancy and who recently overcame one of the worst social experiments in the history of mankind. Like many others, my assumption would be that all eyes would still be on South Africa and a close UN monitoring during their transformation. In addition, considering race was central to apartheid rule, South Africa went 'eight years' without submitting a report to the UN ICERD (International Convention on the Elimination of All Forms of Racial Discrimination). Really? So imagine my further surprise when a UN rapporteur from ICERD asked "I’m not sure what you mean when you say Coloured? Who exactly are the Coloured people of South Africa?"
Another rapporteur from a different UN department - dealing with Minorities - made light of and even challenged a comment made by one of the attorneys from Solidarity on the land/migration issue in the Western Cape, of which the rapporteur had no clue. This particular rapporteur (who was American) immediately went into the usual ‘black/white’ pro-ANC struggle mentality, made a false historical statement about Cape Town and did not acknowledge its majority population in the Western, the Coloured/Khoe/Camissa ethnic group. Again, this does not surprise me. That evening when I spoke to the Solidarity team, their spirits were a little bit down. They thought her comment was the result of them being white Afrikaans-speaking South Africans. Sure, that was partially true, but her comment was mostly out of ignorance. I told them that they need to be more confident in what they were doing and that what they were doing was a virtuous endeavor. In the same breath, I am also mindful that Solidarity has its own 'agenda' too, but I wanted to commend them for their commitment to address the various flaws in Affirmative Action and Black Economic Empowerment laws and for taking this to the international court.
Before I go further… let me step back here for a moment and state that in regards to acknowledging Coloured/Khoe/Camissa South Africans, I should not be surprised by this ignorance at the UN level. After nearly 10 years of screening my films around the globe at University level and hearing academic comments, it became apparent early on that:
1. Very few people outside South Africa knew that the Coloured community even existed (until Trevor Noah wrote a book in 2016)
2. If someone actually knew about the Coloured/Khoe/Camissa community, there was this assumption that after Mandela was elected in 1994, the Coloured people coalesced under the black label and that the Coloured term/label was not being used any longer and that everything was fair and equal
3. Some felt Coloured people should not be complaining because they are ‘middle class’ and had it 'better' under apartheid.
4. Coloured academics living abroad who actually participated in ‘the struggle’, were appalled Coloured people were still using the term Coloured. In addition, many times I have listened to Coloured academic ex-pats deny their cultural or ethnic heritage and express with giddiness and excitement over their miraculous transformation in becoming black in their new foreign residence. Not thinking for one moment that millions still living in South Africa can’t escape the Coloured term being used on housing, education and job applications. Not empathizing for one moment the struggle back home. How fortunate for them to have ‘escaped’ South Africa.
So if this is happening at University level around the globe, why in the world would I think the highly educated UN representatives would be knowledgeable about the depths and layers of South African society? Silly me for making that assumption.
Now, in all fairness to the UN, I also know that South Africa had not submitted its periodical reviews for over ‘eight years’ and in order for an NGO to submit a Shadow Report, the government has to submit its review first. So for eight years, the UN ICERD and ICESCR had no idea what was taking place in South Africa, but that does not excuse them from not knowing their South African history or better yet not knowing from experience or observation while traveling in South Africa. What concerns me most is the UN’s naïve assumption that everything was okay in South Africa. As if the trust and faith the world had in Mandela would be enough. Why did no one at the UN say to South Africa “Where are your periodical reviews?” And if they did, why was it not mandatory in such a young democracy?
Again I ask… who is the watchdog of the watchdogs?
So, for four days, I observed Solidarity’s presentation at various UN Departments. They focused primarily on the ANC governments race-based transformational model and ideology with little emphasis on the Coloured Department of Correctional Services DCS workers issue. If it was presented it was not while I observed them. I sat rather quietly… observing the UN’s rapporteurs mannerisms and reactions. I spoke only when asked. I was always curious how long it would take the rapporteur to ask themselves "What is she doing here?" Usually, at the very end of the presentation, if I was asked to speak and I would make the same statement "Should the Constitutional Court rule against the DCS workers and side with the defense and Affirmative Action laws, this would mean the slow forced migration of over a million Coloured families out of their ancestral homeland." And then all of a sudden they perked up. Had I not been there, I am not sure anyone would have known or cared that the Western Cape Coloured community was under this threat of a forced migration due to the ANC’s Affirmative Action policies. However, the key point to make is that there was no focus or mention of this threat in Solidarity’s Shadow Report, so it did not get included in the final review aside from the blanket statement of: 'Committee Experts noted that perceptions were the real problem in South Africa, perceptions held by the people about other people, and noted that in South Africa, race was equated with skin colour. It was important that measures taken by South Africa to bridge the gap as a result of apartheid were in line with the Convention and the General Recommendation N°32, including in the issues of quotas, in education, housing and employment, among others.' There are many flaws in the above statement but I won’t bore you with the details. However, it is a start.
When reviewing the ICERD review of South Africa, published a year later, in August 2016, there were many observations and recommendations made to the South Africa government to include: Statistical Data, National Humans Rights Institution, Truth and Reconciliation Commission, Hate Crime and Hate Speech Legislation, Special Measures, Harmful Cultural and Traditional Practices, Education, Situation of Persons with Albinism, Situation of Black and Marginalized Ethnic Women and Girls, Situation of Indigenous People, Situation of Non-Citizens and Trainings of Judges and Law Enforcement Officials.
“The Committee welcomed the efforts undertaken by the State party to eradicate the legacy of apartheid. The Committee regretted the non-integration of the Convention in the national legal system which has resulted in the lack of reference in courts. The Committee expressed interest in affirmative actions by the State party especially in regard to results achieved along with other policies including land re-distribution. Some Committee members pointed out the continuing discrepancy in higher positions of public and economical institutions with the composition of population groups. The Committee highlighted the great presence of xenophobia and encouraged the State party of take further actions. Concern was expressed with regard to the situation of non-nationals and violations of their human rights such as discrimination at work, racist hate crimes and hate speech. The Committee pointed out the continuing multiple discrimination and violence against girls and women from vulnerable groups, regretting their access to justice and reparations remain low. The Committee welcomed the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance, yet it pointed out its several shortcomings. The situation of indigenous peoples drew the attention of the Committee, and the State party was asked to the status of recognition of those communities.” In the UN’s longer more detailed written review there were a few mentions of the Coloured community but only in the context of the four racial categories and that Coloured’s had it 'better' during apartheid than black South Africans. Ugggh! Is anyone else getting tired of hearing this? (See my blog 'Had it Better?')
Anyways… so basically up until August 2016, at the time of ICERD’s final assessment and recommendations, no serious issues pertaining to the marginalization of Coloured South Africans had been brought to their attention in formal documentation. In my mind, this signals many things. Lack of leadership in South Africa, possibly lack of funding, and a lack of training to South African NGO’s on how to submit a UN Shadow Report either at the UPR review or at the UN department level.
The UN visit, to me, was a brilliant move by Solidarity and clearly put pressure on the Constitutional Court. Had Solidarity NOT gone to the UN prior to the Constitutional Court trial (July 2016), the outcome could have been very different. I sat all day in that trial and I transcribed everything. Twice the justices mentioned the UN visit in court, something like this, ‘What must we do to keep Solidarity from going back to the UN.’ When speaking to former high court Judge Chris Greenland he stated that judges on such high levels have a reputation to uphold in their international judiciary network. When the previous injustices in South Africa’s lower courts may have been exposed at the UN level, the ConCourt justices most certainly would be compelled to make the right decision and not be swayed by government pressure. However, Judge Greenland, up until the week before the Con Court trial, was worried the outcome would not be a positive one. That corruption was so rife at all levels that he feared the worst.
Imagine how thrilled all of us were when the DCS workers won their case! A small glimmer of hope that democracy in South Africa is working. The one thing I have not seen yet, since the ConCourt decision, is an apology from the ANC government for what transpired. While I doubt it is mandatory, let’s give these DCS workers some dignity and apologize. Also who will hold the DCS and other government departments accountable paying restitution as well as making sure it doesn't happen again.
Who is the watchdog of the watchdogs?
It is also very important in my reflections that I acknowledge the Solidarity Trade Union. I am not a staunch supporter of Solidarity and some of their agendas, but I give them the utmost respect for carrying the massive financial burden, blood, sweat and even tears, to defend the DCS workers in one of the most important Affirmative Action cases since Mandela’s election in 1994. When no other trade union or NGO would step up to the plate, Solidarity took charge and assisted these workers. Therefore, I have the greatest respect for the Solidarity team.
I also want to acknowledge former Deputy Chief Justice Moseneke for his excellent leadership during the ConCourt trial. I am, however, deeply saddened he has retired. Just when my faith in the judicial system was being restored (after three disastrous lower court trials) he has left. I hope he has a long, relaxing and prosperous retirement and that his legacy as a Chief Justice will inspire many others to put justice before politics.
In regards to South Africa:
• It would be good see the end of the use of the term Coloured on all forms and applications, however, I would not want an end to the term Coloured in terms of cultural identity, pride and heritage. Millions are proud of their 'coloured' heritage and millions just hate this term. I get it! I don't like it either. It is important that this history be preserved and taught in all schools in South Africa. The government should invest in cultural education films written and filmed by experts and historians within those specific ethnic/cultural groups to be used in schools nationally. Good oversight is imperative. However, my fear of removing the term coloured (unless a new term is universally accepted) is how to properly measure any further marginalization of this community? But this is not for me to really speak upon, it is up to the people to decide their future.
• SABC South Africa Broadcast Corporation - Oh never mind. That is a blog unto itself.
• Government should create a national reconciliation and healing campaign to restore that euphoric unified feeling and the spirit of Ubuntu back into the hearts of its citizens, like Mandela and Tutu created in the mid-1990’s. However, Zuma needs to resign or be removed from office before that can happen. Lol! Oh, and drop the phrase Rainbow Nation. It's worn out and unrealistic. (This clearly was written years ago - he be gone)
• The South African Human Rights Commission… oh never mind.
In regards to the UN:
• Is there an annual report submitted by the rapporteurs of each country stating when they traveled to their designated country, what transpired and who they met with?
• Is there an entity ‘outside’ the United Nations holding the UN accountable for their actions or inactions? Do they also face penalty and punishment if they don’t do their job properly? Countries pay billions to this organization every year to be a well-run, proactive, and corrupt free organization.
• Why must NGO's wait until the government submits their review in order to submit their grievances? That seems really convenient for a government who is try to hide something.
• Why hasn’t the UN reintroduced ‘cultural genocide’ laws under the UNDHR and UNDRIP. I can’t help but to think that had these laws been defined and enforced and put into place, several of the genocide atrocities that we have witnessed could have been prevented. And stop tip-toeing around Russia and the US.
• As a recommendation: as common as it is to see the term black and white used in UN reviews of South Africa, so should the term Coloured, Indian and Asian. It should not be up to the minority communities to always have a Shadow Report submitted in order for UN to inquire and investigate. As long as the South African government continues to use the term Coloured on its applications, it should be mandated that the UN ‘always’ inquire.
• Clear passage for Stakeholders. If the UNHRC rapporteurs cannot sufficiently handle their duties, then why not give ALL valid/legitimate stakeholders, unrestricted passage to Geneva to submit their complaints? There were several qualified South African NGO's that need to be at the UN but cannot because of the Schengen Visa restrictions. Not sure most Americans could get through those interviews and requirements. Unrestricted passage with a UN certified guideline.
Much love and... walk in peace.