One area in which the Human Rights Commission has an vital role to play, in terms of the National Human Rights Action Plan, is that of training the judiciary. This cannot be done easily by another branch of government, since it would not do for the executive to trespass on the independence of the judiciary. At the same time it is important that the judiciary observes high level norms in its operations, with regard both to its professional decisions as well as the administrative rules it sets for itself.
Foremost amongst these is the need to establish a mechanism to ensure that justice is swift. The number of dates given to lawyers is positively outrageous now, but one can see why magistrates and even judges give in to pleas. In a context in which indulgence is the norm, to stand out against this is difficult. The result is endless delays in settling cases and mounting expenses for litigants, including the state.
The answer is not easy, but the judiciary, with guidance from the HRC in terms of the Action Plan, should set itself benchmarks with reporting requirements from judges and magistrates. There should be performance indicators which should be examined and upon which promotions should be granted. Fortunately the present Chair of the HRC had tried to institute something of the sort when he chaired the Judicial Services Commission, and is therefore in a good position to encourage compliance with whatever regulations can be developed.
It would also be good if the legislature made it crystal clear that limits it imposes are mandatory. Too often the practice has arisen of courts deciding on their own that principles are directive. I believe what the legislature lays down must be treated seriously, though given that legislators are fallible, there should be provision for judicial review of legislation, and also for recommendations for change that could also correct any injustices.
This for instance should have been the way in which the problem about mandatory sentences for statutory rape was dealt with. The law is perfectly acceptable in most cases I would suggest, but I can see the problem one magistrate had with a harsh sentence in a case which involved consensual sex, and marriage, the only problem being that the girl in question was under age and therefore consensual sex had to be treated as statutory rape.
I can therefore understand that the sentence given was suspended, but surely the matter could have been referred to the Supreme Court, which could have advised amendment to the legislation. I believe the Law Commission has indeed prepared a suitable amendment, but that has been forgotten, and many other judges now give suspended sentences in cases in which there are no such mitigating circumstances.
Judges must acknowledge that the laws of the land must be upheld. Simultaneously, legislators must recognize that they make mistakes, and must accept advice from the judiciary, in terms both of the constitution and of fundamental human rights, and principles of equity. To promote such attitudes, the Human Rights Commission can do a great deal through awareness programmes, and seminars, in which the different branches of government are brought together to understand the problems that might arise, and how best to resolve them in the interests of the citizenry.
Such awareness programmes must also extend to local officials, both elected and appointed. At present there are far too few training programmes for them, and indeed the HRC should also assist in training that encourages a rights based approach to their work, as the Plan suggests, so that they will promote Economic and Social and Cultural Rights as laid down in the Plan.
At present the planning process for many social services is not thorough and cohesive, and it would certainly help if elected and appointed officials are taught about setting themselves goals with clearly assessable outcomes. The HRC could be assisted in this by a streamlined Ministry of Policy Planning and Implementation that would be able to train officials in how policy can be developed and implemented to take rights also into account.
For this purpose the HRC should not only have more and better staff, but it should also divest itself of work that does not relate to its core purpose as the apex body for Rights promotion. I was horrified to find, when I first began working with them, that much of their time was spent on dealing with complaints about admissions to schools. That should be dealt with through mediation, assuming the present confusion about schools admission continues, though I also hope that we can develop a less contentious education system that will obviate the frenzied struggle for admissions. Ensuring transparency based on a clear system that is readily understood may help us avoid the conviction amongst many that their rights have been violated.
It will also help if the HRC moves swiftly on the recommendation in the Action Plan that it appoints Regional Advisory Committees to assist its regional offices. The members of such committees should not be paid, since that will encourage rent-seeking, but should include professionals as well as officials for whom attendance should be seen as part of their duties. I have found excellent advice from the membership of the District and Divisional Reconciliation Committees that have been set up by local officials, including on rights issues.
This type of partnership should be developed to look into these on a regular basis, with feedback to relevant officials in other agencies as well as to the Human Rights Commission.