Judge Navi Pillay calls for SA foreign policy to align with human rights and the Constitution

This year marked the 15th Annual Human Rights Lecture organised under the Chair of Human Rights Law at the University of Stellenbosch, Professor Sandy Liebenberg. It was also one of the events chosen to mark the centenary of the Stellenbosch Law Faculty. In previous editions the lecture has drawn many of our best jurists, including Dikgang Moseneke, Edwin Cameron and Yvonne Mokgoro. Its guest speaker in 2021, Judge Navi Pillay, brought an experience and reputation that could not have been more relevant to many of the challenges facing law and human rights at a global level.

Partly because she has spent so much of her career outside of South Africa, Pillay is not as well known here as she deserves to be. Her half century of human rights activism spans both sides of our democracy, starting like so many veteran black lawyers as a law student taking up the cudgels in the fight against apartheid, but carrying over into efforts to deepen our democracy and in particular to give effect to the 1996 Constitution.

However, unlike most of her contemporaries Pillay’s greatest contribution has been beyond our borders. 

Between 1994 and 2004 she was a judge at the International Criminal Tribunal for Rwanda set up to adjudicate international crimes in the aftermath of the Rwandan Genocide of 1994. According to Liebenberg: “In this role, she is best remembered for the ruling that rape and sexual assault constitute acts of genocide.” Later, she served as the High Commissioner for Human Rights at the United Nations from 2008 to 2014. Now, even in “retirement” she plays a number of senior roles, including currently as an ad hoc judge at the International Court of Justice in the Hague, in a complaint alleging genocide against the Rohingya in Myanmar.

Delivering on the ‘Mandela promise’ 

Pillay made it clear early in her lecture that the subject would be to “examine whether we have acted consistently and vigorously to deliver on the Mandela promise, namely, his insistence that “human rights will be the light that guides our foreign affairs”.

This was necessary, she suggested, because “we… situated our country not on an island unto itself, but as a member of a community of states aspiring to make respect for human rights a global norm. The preamble to our Constitution is specific that our place is within ‘the family of nations’. That means we never claim ‘South Africa first’ like Donald Trump’s ‘America first’. Our country can’t go it alone. Divided, as they say, we fall. We must thus instead follow the path of multilateralism.” 

In her lecture Pillay traversed the diplomatic frontlines where South Africa engages the international community and analysed its record on human rights protection. This included our role in the African Union and the UN Security Council as well as in various UN treaty bodies, including the Human Rights Council.

Sadly, Pillay believes, the instances where South Africa has fallen short far outnumber times when we have set an example for the world. She commended South Africa for ratifying all the major UN human rights treaties and for the one instance in 2011 where we sponsored “the first UN Resolution on sexual orientation and gender identity, which expressed ‘grave concern’ at violence and discrimination against individuals based on their sexual orientation and gender identity”. 

But there is more often a “dark side” to South Africa’s engagements, she said, something she has found “painful”. One of her general fears was “the real, dangerous – and troubling – precedent of a post-Mandela government offering the same excuse as did the apartheid regime to avoid condemning human rights abuses”, a conclusion she set out with a number of examples which she called “symptomatic of a deeper suspicion among South African governments about the place of human rights at the UN”. 

Later in the speech Pillay observed how “South Africa’s votes on a raft of human rights resolutions are inconsistent and not necessarily in conformity with the ethos of our Constitution”.

As one example, Pillay drew particular attention to South Africa’s voting against an October 2018 resolution of the Human Rights Council “on the protection of human rights defenders working to promote economic, social and cultural rights”. In this instance South Africa sided with Russia, China, Egypt, Cuba and Pakistan in objecting “to new obligations on states to provide for long-term supportive funding of civil society organisations, new reporting obligations on states on civil society space, and to facilitate favourable banking terms to allow for cross-border transfer of funds for organisations and to provide tax incentives for donors”.

Given the role of civil society in South Africa, and the fact that this was during the first year of the presidency of Cyril Ramaphosa, an explanation is warranted, especially because, as Pillay said, the resolution noted “the positive contribution of independent, diverse and pluralistic civil society to peace, security, sustainable development and human rights, and highlights reform to safeguard the ability of civil society actors to fully exercise the rights to freedom of expression, opinion, assembly and association. These rights are entrenched in our Bill of Rights. South Africa should have been championing them and committing to the protection of human rights defenders.”

Pillay’s lecture also set out an agenda for reform that hopefully will have been heard by the Minister of International Relations and Cooperation, the President and DIRCO. 

She called, for example, for South Africa to ratify the Optional Protocol to the International Covenant on Economic Social and Cultural Rights and for South Africa to “play a role in increasing the authority of the Security Council in the field of human rights, and curtailing the use of the veto in situations of mass human rights violations”. 

She appealed that “whatever group or regional loyalties South Africa supports, these must not be at the expense of adherence to its stated commitments to constitutional rights and values and promises of their implementation”.

It is a positive sign that in recent days Ramaphosa has been more outspoken on the international stage in defence of human rights. He has condemned Israel’s attacks on Palestine as a violation of international law and criticised “vaccine nationalism” in a speech in France. 

This would seem to affirm Pillay’s assertion that: “The pandemic makes clear that, more than ever, multilateralism, and not unilateralism, is the answer for combating the pandemic and building a better new normal. We need to act globally to stem the rising tide of illiberal trends, of nationalism, populism and authoritarianism that threaten our fundamental freedoms and that collectively frustrate progress on providing human rights protections to those without. 

“We need to act in solidarity to safeguard the planet against climate change, against threats to peace and ensure protection and promotion of the human rights of all persons, leaving no one behind.” 

Endorsing UN Secretary-General Antonio Guterres’s plan to reform the UN to make it fit-for-purpose to confront the modern challenges to humanity, Pillay said there is a “need to return to fundamental principles, we must return to the framework that has kept us together. We must come home to the UN Charter. So too must South Africa.” DM/MC

Judge Pillay’s full lecture is available here.