DRAFT PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL (B69-98)

Summary

The SACC welcomes the fourth draft of the Bill. In response to the issues raised in Technical Committee's communiqué, we: call for minimal state involvement in the creation and registration of cultural or other councils; urge statutory definition of the powers and functions of councils; recommend greater flexibility in the scope and timing of consultative conferences; reiterate our previous call for the Commission to focus on mediation, advocacy, education and research; support an emphasis on "promotion" over "protection" in the Commission's work; and question the appropriateness of a representative model in the selection of Commissioners.

1.0 Introduction

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 25 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 We welcome the publication of the fourth draft of the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill (hereafter, "the draft Bill"). We appreciate the Technical Committee's invitation to stakeholders to make submissions on the function and powers of the Commission, the Annual Consultative Conference, and the Cultural Councils envisioned in the draft Bill. We also applaud the Technical Committee's decision to hold a series of provincial consultations in early May to facilitate additional public debate on these key issues.

1.3 Our comments on the draft Bill build on our previous submission, "Recommendations Concerning the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities", submitted to the Department of Constitutional Development on 11 September 1998 in preparation for the first Heritage Day consultation on the implementation of sections 181(1)(c), 185 and 186 of the Constitution. [This submission is available from our office or on the Web.] References below to "the Commission" refer to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities contemplated in the Constitution and the draft Bill.

2.0 Cultural or other councils (Part 8)

2.1 Cultural councils can play an important role in promoting appreciation of and pride in our nation's rich and diverse heritage. Organs of state--and the Commission in particular--should create a hospitable environment for the formation and activities of cultural councils and should encourage them to interact in a spirit of respect, cooperation and interdependence. It is less clear, however, that statutory recognition of cultural councils is necessary or even beneficial to this process. Our strong preference would be to omit Part 8 of the draft Bill, which regulates the establishment, recognition, status and functions of cultural councils. This would not preclude making the Commission responsible for liaising with cultural councils and facilitating their work as appropriate.

2.2 However, section 185(1)(c) specifically mandates the Commission "to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council for a community or communities in South Africa". This implies that the draft Bill must deal explicitly with the matter of Councils.

2.3 The wording of section 185(1)(c) raises a number of questions which the enabling legislation must address, including:

• What constitutes an "other" council? Might this involve the recognition of religious councils, such as the SACC, the Muslim Judicial Council, or the Jewish Board of Deputies? Should cultural and "other" councils be subject to a uniform set of recognition criteria?
• What purpose would be served by official recognition? What rights, responsibilities, or privileges would be conferred or imposed on recognised councils (whether cultural or "other")? What would their powers and functions be?
• What defines a community? Are communities self-defining, or is it permissible to exclude people from a community if they do not meet certain criteria? Who decides?
• What is the impact of a Commission recommendation regarding the establishment or recognition of any council? To whom would such a recommendation be made? Would it be a mere suggestion--a "take it or leave it" option--or would it set in motion a more formal and concrete process? And, if so, what would that be?

2.4 South Africans embrace diverse beliefs, traditions, values, and practices that overlap in complex patterns. Different groups or communities will have different reasons for forming formal structures to promote or perpetuate their shared beliefs and customs. To the greatest extent possible, these structures should evolve organically in response to the needs and objectives of the people involved. State institutions should not distort this process by attempting to orchestrate or even accelerate it. The Commission should not be charged with organising South Africans into cultural, religious or linguistic interest sections. Nor should it offer a strong incentive to the formation of councils through the generous dispensation of powers, privileges or resources. At the same time, the state should ensure that those councils that do operate respect fundamental constitutional principles of tolerance, democracy, transparency, and accountability.

2.5 Consistent with our understanding of the organic nature of social organisation, we recommend that the Commission be empowered to recognise cultural and other councils in a manner parallel to the recognition of nonprofit organisations by the Department of Welfare and Population Development in terms of the Nonprofit Organisations Act (No. 71 of 1997). Councils could be formed on the basis of culture, religion, language or some combination thereof. Commissioners could suggest to a community that it consider establishing a council, but the Commission would not initiate the formation of any council. It would only certify that a council followed responsible organisational, administrative and financial practices, based on documentation provided by each council periodically. This would include ensuring that a council's membership rules were not gratuitously exclusive. Registration would be voluntary, but would be a prerequisite for partnership with or support from the Commission for any particular project, research or event undertaken by a council. It would not otherwise signal endorsement by the state.

2.6 Consequently, we recommend that section 36 of the draft bill be deleted and that section 37 be amended as follows:

Recognition of cultural and other councils

37 (1) The Commission may recommend to a national consultative conference that the conference recognises, for the purposes of this Act, a cultural or other council established by members of a cultural, religious, or linguistic community if--
a. the Commission is of the opinion that such a council would be conducive to peace, friendship, tolerance, and national unity in South Africa; and
b. (2) Before the Commission makes a recommendation to a national consultative conference, the Commission must ensure that the founding document establishing the cultural or other council conforms with the provisions of this Act.

(2) The Commission may suspend or withdraw recognition from a Council which ceases to meet the criteria in subsection (1) or which otherwise fails to conform to the provisions of this Act.

2.7 We also believe that the powers and functions of the councils should be more clearly spelled out in the draft Bill rather than being left to later regulation. Consequently, we suggest that subsection (1)(d)--and reference to "functions" in the title--be removed from section 38 and a new section 38A, adapted from the language in section 19 of the Western Cape Cultural Commission and Cultural Councils Act (No. 14 of 1998), be inserted following section 38:

Powers and functions of councils

38A (1) A council recognised in terms of section 37 may--
a. preserve, promote and develop culture, religion or language;
b. monitor, investigate, research, and provide education on cultural, religious, or linguistic matters;
c. report to and advise the Commission on matters relating to--
i. culture, religion or language; or
ii. the rights of cultural, religious or linguistic communities
in South Africa; and
d. carry out any other function prescribed in terms of section 40.

(2) A council may not pursue the objectives contemplated in subsection (1) in a manner inconsistent with any provision of Chapter 2 of the constitution.
(3) A council recognised in terms of section 37 may apply to the Commission for financial or other support for projects related to the pursuit of the objectives contemplated in subsection (1), including festivals, conferences, research, and publications.

3.0 Annual national consultative conference (Part 6)

3.1 An annual conference is likely to be very expensive. (It would be interesting, for example, to know how much was spent on the Heritage Day consultations held in 1998 and 1999.) The sort of conference most valuable for exploring policy options--a multi-day event with a focussed agenda and substantial opportunity for detailed discussion--would be most expensive of all. A more economical meeting--one day featuring general plenary discussion and little debate on resolutions--may become little more than a costly talk-shop. We recognise that it can sometimes be useful to bring people together from around the country to share ideas and information, but such a gathering should not masquerade as a policy-making forum or even, in many cases, a consultative one.

3.2 We believe that the consultative conference can be most valuable and cost-effective if it serves as a occasion for information exchange, reaction to the work of the Commission, and discussion of key issues related to culture, religion, and language. We also believe that these goals would be better served by a flexible approach that would not require the conferences to be annual or national. One option might be to amend Part 6 to provide for a biannual national consultative conference, with provincial conferences in the alternate years. Alternatively, this Part should be abandoned altogether and the Commission could be empowered to convene consultative conferences on national, provincial, or local levels as often they deem desirable, appropriate, and affordable.

3.3 If the consultative conference remains in the draft Bill, then it may make sense to enhance its link with the councils by giving each recognised council the right to send one delegate to the conference. This would not prevent the Commission from nominating additional members of any particular council (or, indeed, individuals who are not members of any council) in terms of other provisions of section 26. But it would greatly broaden the range of people involved in selecting conference delegates.

3.4 Section 26 should also be amended to ensure that the principle of gender equity is respected in the appointment of conference delegates. This could be achieved through the insertion of a new subsection 4:

(4) The Commission must ensure that the composition of the national consultative conference broadly reflects the gender composition of South Africa.

3.5 If the consultative conference's resolution powers are retained, then a more detailed description of the resolution process should be included in section 29. In particular, this section should indicate who is eligible to propose a resolution. If delegates alone are permitted to make resolutions, this is likely to preclude advance circulation of resolutions--a strategy that might improve the quality of debate on particular proposals. It is not clear if the wording of section 25(c) ["the discussion of draft resolutions before the conference concerning requests to and priorities for the Commission and the formulation of the terms of reference of such requests"] is intended to limit the content of resolutions but, if so, this should be more clearly spelled out.

4.0 Functions and powers of the Commission (Part 5)

4.1 With respect to the functions and powers of the Commission, we refer to our previous submission in which we distilled the powers listed in section 185(2) of the Constitution to four main roles:

• Mediation, both within and between groups (including conflicts involving the state) at the request of all parties involved;
• Advocacy, both directly with policy-makers and indirectly by facilitating interventions by cultural, religious and linguistic bodies;
• Education, including public education and curriculum development; and
• Research, linked primarily to its work in the other three areas.

4.2 The Technical Committee's communiqué [item 5(a)] raises specific questions regarding the balance between "protection" and "promotion" in the Commission's role and whether the Commission should hear complaints from individuals as well as groups.

4.3 Our understanding is that the Commission's emphasis should be on promotion of common values and celebration of unity in diversity. Section 185 of the Constitution, which discusses the Commission's functions, speaks twice of "promotion" of respect for rights and values, but only mentions "protection" as a part of the Commission's full name. Only section 185(3) emphasises the Commission's "protection" role, and even then its responsibility is to report to the Human Rights Commission on matters within the scope of its work. The division between this Commission and the SAHRC seems clear: while this Commission may mediate disputes and build national unity, it is left to the SAHRC to investigate and litigate violations of rights.

4.4 To some extent, this analysis renders immaterial the further question about individual versus group complaints. With the possible exception of the "notion of the right of self-determination" acknowledged in section 235, the Constitution does not recognise "group" rights anyway. All other rights--even the rights of cultural, religious and linguistic communities identified in section 31--are phrased as individual rights to engage in collective activities. Only the concept of self-determination is tied to one's membership of a group rather than one's innate humanity.

4.5 Nevertheless, the question remains relevant with respect to mediation. In the case of mediation, we feel that the more important principle is the consent of the parties involves, rather than whether they are individuals, families, organisations, or communities.

5.0 Composition and Membership of the Commission (Part 3)

5.1 Although the Technical Committee's call for submissions did not explicitly request comment on Part 3 of the draft Bill (Composition and Membership of the Commission), we feel compelled to respond briefly to this provisions of this Part. Our comments engage the issues cited in item 5(b) of the Technical Committee's communiqué and reflect concerns we raised in our earlier submission. At that time, we remarked:

As we build a shared future, a growing number of South Africans will develop ties to multiple traditions. The implementation of Section 185 should not inhibit this process. Artificial notions of cultural, religious, or linguistic "purity" jeopardise the cross-cultural links that help to "knit" together the various strands of our common heritage. The Commission should discourage the apartheid-like "groupthink" that attempts to erect rigid boundaries between cultures, and should instead celebrate South Africans' ability to transcend cultural boundaries as a desirable hallmark of nation-building.

5.3 Section 5(3)(a) of the draft Bill follows section 186(2)(a) of the Constitution in requiring that the Commission "be broadly representative of the main cultural, religious and linguistic communities in South Africa."

5.4 While we understand the desire to reflect the exact language of the Constitution, we urge the Technical Committee to reconsider the use of the word "representative" in this clause. We believe that the legislation should unambiguously reject a representation model for the Commission, where each commissioner is perceived as a champion for the rights and interests of the particular constituency (or constituencies) she or he represents. This approach would encourage people to see the Commission as a place where group rights compete, forcing commissioners to adopt defensive postures. Instead, the Commission should be an agent of nation-building and reconciliation. It should be a body that brings together individuals with unique abilities to draw upon and weave together South Africa's diverse cultural, religious, and linguistic traditions in order to promote tolerance and pride and to combat intimidation and exclusiveness.

5.5 Similarly, we are concerned about the word "main" in this clause. The draft Bill gives no criteria for determining what constitutes a "main" cultural, religious or linguistic community. Insofar as this implies strength (whether numerical, political, or economic), it seems to undermine the Commission's capacity to give maximum protection and support to the weakest or most marginalised groups.

5.6 Consequently, we propose that section 5(3)(a) be changed to read: "broadly reflect the cultural, religious and linguistic diversity of South Africa; and". We believe that this formulation would remain consistent with the spirit of section 186(2)(a) of the Constitution.

5.7 Section 6(2)(c) renders ineligible for membership of the Commission "a person who during the preceding five years has advocated hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm". This wording gives no indication of what constitutes advocacy of hatred, nor does it indicate who is responsible for determining if a candidate's eligibility. It would be preferable to link disqualification with an Equality Court ruling against a candidate in terms of the prohibition of hate speech contained in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000).