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Monday, November 29, 2004

COmmission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities-SEMINAR


SEMINAR 22nd July 2004

Dr Chris Landman
Commissioner- Seminar Co-ordinator CRL Commission

The element of protection is written in the name of the Commission. Protection, within the context of the constitution of South Africa (1996) is to protect rights according to the dictates of the Constitution. The Constitution of SA is the supreme law of the country and everyone - both public organs of state (Sec 239) as well as organs of civil society (Sec 31(1)b) - are bound by the constitution (and specifically by Chapter 2 on Human Rights).

In the spirit of the Constitution, when the launch took place, a day seminar was held on the question of the promotion and protection of the rights of religious associations. In doing so a wide variety of speakers were invited to put their particular perspectives and to balance those perspectives with the constitution of SA.

Since the Constitution of SA provides that international law (and foreign law to a limited extent) be considered, in the application of the constitution, the seminar commenced with an exposition of the international scene by Professor MK Hansangule. He is professor of human rights law at the University of Pretoria. Commissioner (Dr) Chris Landman explained the constitutional context from the perspective of the Constitution of South Africa, Commissioner (Dr) Dockrat looked at the situation from an Islamic perspective. Dr. J Hellig explained the situation of Judaism. Dr. Dr Moodley reflected on the theme from the angle of the Hindu religion. Commissioner (Dr) L Mndende surprised the guests with her in-depth knowledge of the African Religion of which not sufficient knowledge is known in Western circles. Dr. N Niemand from the Dutch Reformed Church participated from a Christian point of view.

What is important is that a particular religion discovered the perspectives of others and had to define how national unity and national co-operation and co-existence could be achieved in spite of the existence of many a religion in one country.

As an introduction to the seminar attention was also given to the question of language rights, by Prof Cynthia Marivate. She explained in an eloquent manner how the Commission would differ in its workings from Language Commission (PANSALP).

It is anticipated that the Commission will decentralized seminars by organizing such seminars, to begin with, at all university campuses.

Dr. Chis Landman

The seminar programme was as follows:

Seminar Programme: 22nd July 2004

10:00 - 11:00 Registration

Dr M D Guma
Word of welcome - and introduction to the Commission.

Mr Tseliso Thipanyane
Community rights within the context of law with reference to culture, religion and language: the challenges for harmony in diversity”

Prof M K Hansungule
Community rights within the context of international law, with reference to Culture, Language and Religion.


13:00 Lunch

Prof Cynthia Marivate
Language rights within the context of the South African Constitution 1996.

Panel discussion on religious rights from different perspectives chaired by Dr Chris Landman

Panel participants (5 minutes each)

Dr A Dockrat (Islam)
Dr J Hellig (Judaism)
Dr D Moodley (Hindu)
Dr L Mndende (African Religion)
Dr N Niemandt (Christian)

Words of thanks and closure: Ms Marlene Bethlehem (Deputy Chair)

Language rights within the context of the South African Constitution 1996.
Prof Cynthia Marivate (CEO of the Pan South African Language Board-PANSALB)

1. Introduction
I thank you for inviting me to this prestigious occasion and I became more scared listening to all the questions - but when I received the invitation to speak on “Language rights within the context of the Constitution” I said, this Commission does not know where to begin. They want me to give them their job description. They know I cannot avoid differentiating between the Pan South African Language Board and the Commission. So in my talk, I will try to differentiate between the two bodies and give some food for thought, also some tools that the Commission can use to implement legislation. I hope that this talk will help convert the Constitution mandate to a reality.

2. The Constitution
I will indicate a few clauses which have to do with language rights. Obviously, Section 6.1-5, which includes the creation of PANSALB. The mention of PANSALB in Chapter 1 “Founding provisions” of the Constitution, was a message from the founders and politicians to this country, that South Africa respects multi-culturalism and multi-lingualism. Then come all the clauses under the Bill of Rights which includes language rights and we will touch on a few.

* Clause 93 which has to do with equality: Before the law no discrimination on the basis of language.
* Section 29 and 2 which deal with education: The right to receive education in the official language of choice

Both these sections together with Section 6 have what we call an ‘Escapist Clause’ - as the word ‘practical’ is included, meaning as far as resources make it possible. This is an escape for the state of whoever implements this.

* Section 30 on language and culture where it talks about the: Use and participation in cultural activities of one’s choice
* Section 31 where one: has a right to practice culture and religion.

There are also indirect clauses within the Bill of Rights which have to do with access - access that is under-pinned by language. Whether access to information or access to get information together to buy a house, or have facilities, so indirectly it links to language rights:

* Section 35 refers to the fact that the person arrested, accused or detained has the right to an interpreter and to be tried in his/her own language.
* Chapter 9, section 181 and 185 deal with state institutions which strengthen constitutional democracy (including the CRL Commission).

I am delighted this Commission now has a name and a face; and I think we should applaud the Commission for that. The challenge of all these Constitutional clauses in terms of linguistic rights is going to fall on the shoulders of both this Commission and PANSALB. Although the ‘human rights’ issue is also dealt with by Commissions, when it comes to linguistic rights we are going to ensure that we translate all those nice clauses into reality. It is not a once-off thing, it is not overnight, and it is a process which is a learning curve. I am glad that at PANSALB we have learnt and have moved thus far and will now be joining hands with the CRL Commission to learn further. What I will be doing is to juxtapose the two bodies and then look at the issues which face us.

3. Defining our tasks
The first issue is the context under which PANSALB operates and looks after linguistic rights. Next is the context under which the Commission operates and is supposed to look after linguistic rights. Looking at PANSALB, its Act and the way the Constitution describes why it is formed in Chapter 1, our context is a developmental one. This is unlike the Commission mentioned under Chapter 9, Section 185 of the Constitution. PANSALB has to develop languages and set up conditions to help develop them. We have to ensure that languages are used and create conditions for their use. We then have to promote. It is under ‘promotion’ and ‘ensuring respect’ of languages that we are going to link directly with this Commission. When you look however at the context under which this Commission is going to operate, it is not developmental. It is to promote: promote respect; promote peace; promote and recommend the establishment of cultural councils. It is then clear that the two contexts are not the same, although they complement and support each other. There had initially been concerns that the constitution was creating two similar structures to do the same thing.

Issues expected of PANSALB are not expected from the Commission but we will always support the Commission. The question may then be asked: To whom does PANSALB direct its programmes and to whom is it that the Commission targets its activities? Our key targets as a language board are in terms of use, development and promotion and we target Government itself, including Parliament, Provincial Governments, Local Government and all key domains in society, i.e. the educational sphere, the judiciary, health and culture. These are also the spheres we direct our promotion towards). How do we approach all these spheres?

Firstly, we approach Government bodies and institutions in terms of how they use language. Use of language means ‘language policing’. This would mean monitoring which languages are used where and for which particular purpose. That is why we are behind assisting the Minister of Arts & Culture to develop a workable language policy for the country. TThis would include working with the Minister of Education to implement a ‘Language in Education Policy’ which they have recently developed and adopted. These include tertiary level policies.

Secondly, the use of language in the judiciary. We ensure that there are interpreters and translators and that there are terminologies and dictionaries. These are the practical, technical, developmental contexts. It does not however mean that PANSALB is a purely technical mechanism instigated by Government to do purely technical work. We have been given the responsibility of the technicalities because it would be difficult to remove those technical aspects from society, from the speakers of the respective languages.

The key target for the Commission includes communities, families and individuals. Individuals constitute families which are in turn the building blocks of communities. The Commission has to within this framework realize the key objectives: ensuring stability, peace and nation-building. They must ensure that individuals are responsible citizens within communities and are able to exercise their rights in responsible ways which will ensure that South Africa is stable. There’s is therefore a highly politically charged mandate and the context under which the CRL Commission is unique in this respect. For the CRL Commission it is not important that there are no dictionaries for isiZulu. Should this in fact be the case then it would be the question that the CRL Commission would need to ask PANSALB- why are there no isiZulu dictionaries. The fact that there may be no dictionary in a certain language is for us a key issue since it would contribute to the fact that children can nether be taught in their own language nor can books be written in that language. These are the two differences between PANSALB and the CRL Commission.

It is essential to bear in mind that PANSALB is linked directly to national development needs. For example, the fact that poverty is high on the national agenda links PANSALB directly to the issues of poverty. Could it be that because people do not speak the language of power i.e. English, they do not have access to the job market or to housing.

Use, development and promotion form the three sides of a triangle and form the context under which PANSALB operates. For the CRL Commission, its not only the question of language rights as rights. It would be the challenge of the Commission that they have to move beyond the question of language rights to language as a resource. Once the Commission moves to that strategic position it will then address its core function of peace, stability and nation-building. This would necessitate that the CRL Commission kindles the interest in and amongst various communities through individuals and whatever manner it can so that they can know one another. Communities should feel protected and free to promote their linguistic heritage. Respect and protection will lead to national peace and stability if managed correctly.

4. Threats
Both our bodies are faced with threats:

1. The threats to PANSALB go back to the key issue of their developmental mandate mentioned above. If there is a threat that a language will become extinct it is because it neither has any translators, interpreters, literature, correct standards nor spelling rules thus making it difficult to use on a day-to-day basis. If it does not have the infrastructure, then it cannot be used and any Government department can refuse to use it since they perhaps cannot translate documents. If the people don’t have pride in their languages then all these are threats to PANSALB. It would be our mandate to ensure that we kindle their interest and promote the value of their particular language. We are tasked with the responsibility to make sure that people’s rights are linked to the use of language which by necessity must legally ensure has the capacity to be used exists by supporting it technically.

2. Possible threats to the Commission are that the context under which it operates must address the past imbalances so as not to threaten peace in the country. Where threat can include impediments to freedom of association, freedom to develop or practice one’s culture or religion and where values of individuals and families leads to such exclusivity that people tend not to concentrate on building a united South Africa. Equally of importance is the issue of peace, reconciliation and respect which should be key to building communities and supporting one another as South Africans so that we co-exist.

Therefore the Commission’s rights’ orientated perspective should be linked to peacefully and respectfully breaking down linguistic barriers for the sake of nation-building. Whereas from PANSALB the use of language in all key domains and spheres of Government should be linked to practically implementable language policy and supported by all the developmental activities of the Language Board. It is for this reason that the Language Board has developed 33 structures, three of which include:

a) National Lexicography Units: there is a Unit for each official language (writing dictionaries, etc)
b) National language bodies: the authorities of the languages, they ensure that literature is produced, published and printed. Standards and terminologies are developed and generated to meet the new technological advances, etc.
c) Provincial language committees: ensure language use at Provincial and local level.

These structures contribute by supporting PANSALB to operate in a developmental context.

What is driving the motivational imperatives behind these two bodies? PANSALB is driven from a developmental, technical-oriented brief in terms of projects that does not exclude the role of language in society. Whilst, the Commission on the other hand is driven from a community-oriented perspective in terms of projects, and the recognition and establishment of cultural councils. For example a complaint you receive may end up linked to technical problems and that’s when you will need PANSALB!

5. Cooperation between PANSALB and the CRL Commission
I sat down to think of how we are going to handle overlaps and referrals between our two bodies. Let me sketch a possible scenario: Suppose PANSALB receives a complaint on a violation of language rights linked to religion and culture, e.g. lobola or a threat to a community value. Due to the nature of this complaint we would immediately refer it to the CRL Commission.

If the CRL Commission receives a language rights violation complaint relating to access to Government information, e.g. an application form, HIV/AIDS news, something on TV; you would immediately send it to us since this matter is linked to language use and practicality.

Another example: If we receive a request from a community to practice their own language and religion so that they can have pride in their heritage; we would immediately send it to the CRL Commission to link with the community and the community councils.

If you for example, receive requests from a particular community, from a court of law or a magistrate concerning a case that was held without access to translators and interpreters, it would not be your duty to deal with that and you would resort to sending such a complaint to us. You may then rightly enquire why PANSALB is not ensuring that there are sufficient resources to promote facilitation of this kind of essential service.

6. Conclusion
In conclusion we may summarise that any complaint on language use in any sphere linked to Government practice and policy will be PANSALB’s domain. Whereas on the other hand and issue of language use linked to cultural expressions and religious rights or expressions and where people are discouraged to co-exist and operate in a peaceful manner, will fall squarely within the domain of the CRL Commission.

PANSALB’s linguistic right activities and discourse analyses will always be linked to a developmental approach. The use of language, how enough resources are developed and their promotion are the responsibilities of PANSALB. The CRL Commission’s brief vis a vis linguistic right will always be linked to use of language to foster peace and nation-building. This is a huge challenge since this will have to deal with mindsets, pride and prejudice, fear of the unknown and the habit of labeling what you don’t know as backward or inferior.

The National Lexicography Units are helping to produce mono-lingual and bilingual technical dictionaries which will help the process of the intellectualization of African languages. This is linked to a big project that PANSALB is participating in under the African Union. The project is lead by Mali and has continental dimensions. It is fortunate that we have also moved in that direction continentally. PANSALB works with its other counterparts. That project has a Steering Committee which identified five key projects as follows:

The intellectualization of African languages which will include terminology development, etc.
Skills development of interpreters, translators and related professionals.
Continental MA and Ph.D programmes.
Language policy.
Skills development of translators, interpreters and other professionals.

It is also important that the Commission obtains a copy of the Department of Education’s publication called “Values, Democracy and Education”. This programme works towards instilling the right kind of values within the educational system and curriculum to ensure that our children are taught the right values. This is a project the CRL Commission will have to run with.

Community rights within the context of international law, with reference to Culture, Language and Religion.

Prof M K Hansungule (PhD (Austria) and LLM (London))
Human Rights Centre of the University of Pretoria

1. Introduction
You invited me to say a word about the origin of rights pertaining to communities, to religions, to languages and to cultures, particularly but not only in international law, I will try to be as brief as I can. Most of what I am going to say is included in the paper I am delivering.

I want to start with an anecdote. Recently at the last session of the African Union which was held in Addis Ababa in Ethiopia, President Joachim Chissano of Mozambique, who was the current Chairperson of the African Union surprised the delegates, the assembly of states and governments when he suddenly and without warning, went into his Swahili language which non of them were expecting. A tradition has developed of using the so-called Organisation of African Unity languages. Even though there is the word “African” in that title, none of those languages are actually African. So when Swahili was spoken to an audience of 53 heads of state and government it was such a shock, many delegates were struggling with their earphones to catch what President Chissano was trying to say.

Recently the African Union has adopted a radical decision of expanding the arena for the use of African languages within the Union. The decision was taken at the Lusaka Summit of the OAU in July 2001 in which it was decided that in addition to the traditional languages used ever since the Union was founded in 1963, we should try to identify some indigenous African languages and include them at the OAU. Since that time Swahili, Amharic and Hausa have also been adopted as operating languages for the African Union. Now even though the decision was taken in 2001 this has not yet been followed practically for lack of funding and other resources. This explains why President Chissano decided to start it while the organization was still planning as how it would implement the decision.

You will realize that in the whole of Africa we come from not one ethnic group but from hundreds of thousands of communities, cultures, languages and religions. However, in spite of this, the legacy of Africa is not amusing at all. In terms of the OAU and now the African Union we were divided into three ‘phones’-we were either Franco-phones, Anglo-phones or Russo-phones. Spanish-phones have recently been added in relation to Guinea. When you go to the real people on the ground unfortunately, none of them understand themselves in terms of Anglo-phones, Franco-phones, etc. they are simply people in terms of their indigenous communities, indigenous cultures and indigenous languages. We have remained and maintained this tag. This tag is not necessarily for the convenience of communicating, it is actually more than that. The intention was to try and affect our cultures, affect our dignity as human beings and affect our lifestyle.

I had a personal experience when I went for Grade 1 in Zambia. When I arrived I was taught how to discriminate a man from a woman using the English language. In my tongue and local Zambian language Tonga, there is no distinction between a man or a woman. You simply say “a person is coming” but each time I would say this the teacher would beat me because I was would not say whether the person was a he or a she. So the discrimination on the grounds of gender and grounds of sex was planted when I went to my primary school. This was one of the many problems we face on the grounds of colonialism.

The French philosophy on Africa should not be overlooked. It was essentially to assure the simulation of the indigenous communities and cultures into those of French people. Even though it was not really French who colonized Africa; it was the English and others, the French in particular believed very strongly in the possibility of changing an African into a European through the process of assimilation. This is what you see reflected in the various languages that we have adopted ever since that time. This is also reflected in our national Constitution and more specifically in this international treaty affecting the Organisation of African Unity.

2. The history of community rights in international law
Chairperson, the subject of community rights has a long history in international law; it is certainly not something that I can dare to effectively discuss. A long, long time ago, and long before any of us here were born (probably except myself!), long before the introduction of the current structure of international law, in what used to be called ‘customary international law’, there were a few communities, a few bodies (including some minorities) that were conferred with personally on international law. This is long before the introduction of positive international law. That means therefore that communities belonging to minorities could enjoy certain minimum or limited rights, in international law and enjoy protection as a community. Consequently, after the Second World War, when we started drafting the first International Bill of Rights, it was not a problem to encapsulate the rights of communities in the Universal Declaration of Human Rights.

Specifically Article 26 of the Universal Declaration of Human Rights explicitly provides for the protection of rights of communities. This is in relation to cultural rights; in relation to religious rights and in relation to language rights. These rights are attached to groups and that means members (membership to a group) were entitled to enjoy the group culture, the group language or the group religion as the case might be. Similarly, the Covenant on Economic, Socio and Cultural Rights, Article 15, reiterates the same principle. The principle that in addition to individual human rights of each and every individual, people would be entitled to exercise their group rights as members of particular groupings. This means that as long as you can identify your ethnicity the group as a group would also be entitled to international protection in relation to their cultures, their traditions and languages. Article 27 of the International Covenant on Civil Political Rights which were the instruments international bureau of rights together with universal rights again reiterated this principle and it states specifically that every person has a right to participate in the cultural life of the community. Now by extension that right also belongs to communities.

When we started drafting the African Charter on Human and People’s Rights, the regional instrument on human rights for Africa, we obviously did not forget the importance of, not only providing protection to internationally recognized rights and freedoms, but also to African human rights. This is the main distinction within the African Charter of Human and People’s Rights besides the word “African” before the word “Charter”.

The African Charter is trying to deliver a particular message to the rest of the world. That our concept of human rights would be based on two proxies, namely, individual human rights which are also known as European rights or Eurocentric rights. We need them as well. Side-by-side these individual human rights we also need to use the opportunity of drafting the African Charter for ourselves to provide for the indigenous human rights concept. The indigenous concept of human rights is found in various provisions of the African Charter reflected as group rights. For instance, from Articles 19 to 24 of the African Charter, group rights are protected side-by-side with individual rights. Similarly, Articles 27 to 29 of the African Charter also provides for what are known as duties of the individual. Now it is regading the duties of the individual, that we bring the issues that I find you discussing here. For instance, the duties following the death of one of the spouses. What are the duties of one spouse in relation to the deceased spouse? What are the cultural duties? What are the rituals expected of the community and so forth?

It has been suggested several times by various scholars that if emphasis on duties or collective rights could minimize the importance of individual rights. The challenge, however, that I am presenting you is how we can find a proper balance between individual rights and group rights. There is no doubt, however, in terms of international legal regime that we have accepted to both ensure the rights of an individual to their language, to their culture, to their religion. Alongside this we have also accepted the rights of the group to the same subjects: the language, the culture, the religion.

I would like to take his opportunity to discuss two such cases here. There is the interesting case of a young lady in Canada called Sandra Lovelace, a Red Indian. She married outside her community; she married a non-Red Indian man. The culture of the Red Indian dictated that anyone who married, and especially women (not necessarily men), outside their community, lost their community citizenship. Now in terms of their culture, every member of the Indian community was entitled to land as their birthright. However, as a woman, if you married outside your community you were cut off from your community. So she ceased to have access to the land of the Red Indian community. Sandra Lovelace did not accept the interpretation of the Red Indian culture, so she sued Canadian regime through the courts and lost. This was because the law was very clear, if you married outside the community you are not entitled to land. Eventually she brought the matter to the United Nations Human Rights Committee. This is a Committee provided for by the International Covenant on Civil and Political Rights provides. This would mean that any state which has ratified the Treaty on Civil and Political Rights and the optional rights pertaining to that treaty has in effect opened itself to be sued and to be challenged in terms of the measures and regulations and administrative practices, to the extent that it could be found to be wanting as far as individual rights are concerned. So Lovelace went to the UN Human Rights Committee to complain that she was being discriminated on the grounds of gender and the grounds of her sex by her own culture, to the extent that as soon as she married outside of her community she lost her citizenship as an Indian. The UN Human Rights Committee, unfortunately for most men in the room, decided in her favour. The Canadian state must undertake uniforms in its legislation which will affect its culture and cultural concepts, so as to bring them in line with fundamental human rights. Sandra Lovelace even though a Red Indian is first and foremost a human being. Being a human being she therefore cannot be denied her rights to land on the grounds that she has married someone from outside her community.

The second case is that of Ketokie versus Sweden. When you are in Europe, as a teacher of human rights as an African one is often reminded that there is no problem about human rights in Europe- that these are problems for Africans. Now that is not true! Sweden, Denmark, Finland and Norway all have minorities and communities that have for a long time now been crying for their community rights, cultures and languages, crying out for their identities. Ketokie comes from one of that minority community in the north of Sweden which is also an indigenous community, the Sam people. These people have been discriminated against for a long time on the grounds of their community membership. For instance, they have been trying to carry out their traditional reindeer herding practices. For over 100 years their cultures have revolving around herding reindeer and the collective ownership of oil. But when the motions for this state were established, like the Danish state, it completely overlooked the rights of group minorities-the indigenous people-emphasising mainly the individual rights. So Ketokie and his friends took Sweden to the UN Human Rights Committee that Sandra Lovelace had gone to before. They argued that the Swedish state was in breach of the rights of communities of the Sam people on the grounds that they did not deserve to be protected in relation to their cultural rights and languages as the protection that the Constitution of Sweden gives already to every Swede is adequate. Now there was a problem here because they used Article 27 of the International Covenant on Civil and Political Rights, even though the UN Human Rights Committee was accommodating and very friendly to the minorities, they however found that Sweden was substantially meeting the standards of human rights-including the rights of the minority people, to the extent that they had created a special parliament for them. In the special parliament they were allowed to use their languages and establish their own schools and to teach their children in their local cultures, their local tongues. Also to the extent that any indigenous minority who wanted to own reindeer or do reindeer herding was protected to carry out that practice, as long as they did not indulge in other activities which were indulged by other Swedes, which would show that you were giving up the citizenship of the Sam people. They accepted the fact that there were areas that Sweden must work on. However the Committee also found that Sweden was trying to do their best to ensure the protection of these minorities.

The lesson from this case is very simple: in trying to find a balance between group and individual rights, we should all try and ensure that where we promote individual freedom we at the same time try to promote group rights to the extent, for instance, that where possible indigenous parliaments can be established, where possible literature can be translated into local language and where possible people could be protected in terms of their indigenous worship. This also applies to the ownership of their resources, such as land.

The African Charter
May I repeat what I said: over the years, for centuries, the world has realized that if you do not promote the concept of equality between groups, as you are promoting the concept of individual equality, you are actually creating room for the destruction of society.

When you have time, please check the African Charter. One of the greatest achievements is Article 19 of the African Charter, unlike the international law, Article 19 provides for group equality. So that we have individual equality in terms of individual human rights, but we should also be speaking about group equality. This is where the rest of Africa has failed up to now, that is what led to the destruction of Rwanda. This is so because when you do not achieve that balance; when one has a small group and that group is quantitatively smaller, then there is destruction and genocide. So the issue is to address what has previously caused the First and Second World Wars and then the African War. This is how the articles try to articulate the rights of groups in addition to the rights of individuals. However, the challenge remains-how to achieve that balance especially between groups and between individuals and groups. What we are trying to do is have the problem discussed in a forum like this. For instance, in the case of the young lady in Canada who challenged her own community and stated that the said value is contrary to her individual freedom as an individual, and that she should be able to marry whoever she likes and should not be forced to marry someone within her own community.

Understanding Human Rights
My understanding of human rights is actually that human rights are mutually exclusive. Usually you can find a proper balance within human rights between the individual and the group. Let us by way of example take the case of land. If I am given a piece of land then as long as I do not insist on my individuality (something that is not practical) and I allow another person to use the land at the same time, then it is clear that both individual and group rights would be possible in relation to that land. In the indigenous African system you can actually not have the right of ownership to the land but the rights of use. How is it possible to exercise this right if you insist that the land is mine for the rest of my life? The concept should not be to own land but to borrow and use land when you are alive and then you leave it for the next borrower. This then is the African conception, that you do not own the land solely and exclude everyone else. This ensures that the rest do not become landless. The African concept is that if you take a few things and put them together as individuals, you use these and after you die another generation comes and uses it.

South Africa, new as it is, is making many inroads in trying to develop these new values. By far South Africa is doing more in this regard than the rest of Africa. One of the greatest problems we have in Africa is that most countries are still politically fearful of these rights. When one talks of language, cultural, religious or ethnic rights to some politician, it is music for destruction! Many fear they will lose political power because one is promoting the marginalized. They then wake up from their slumber and start demanding equality of treatment. This may mean that traditional power holders are threatened. Perhaps there is one experience I should share with you: Since independence in the majority of African countries, we have tried to promote these rights not without the fear that there might be disintegration; these communities may even ask for cessation on the basis of their cultural identity, their land identity, their religious identity, and so on. Therefore by establishing the Commission that you have, you have actually scored a first over and above the majority of African countries.

In Zambia, my country, the Constitution says very clearly that English shall be the official language. Legally you cannot speak or write in another language officially. Police and Army officers must only use English. In South Africa you have 11 official languages, in Zambia we have 72 languages and different ethnic groups. When I was teaching at the University of Zambia, before I left, I could not afford to use my mother tongue because the composition of a class was so diverse that I had German, English and French speaking learners in one room. If you used an ethnic language you were not understood at all by anyone. This is perhaps why, if you went back in history and you would recall that President Kaunda, the first Zambian president, in his attempt to build a nation introduced the simplistic formula and saying: “One Zambia, one nation”. He repeatedly said this. The underlying theme is that he was trying to change our underlying psychology and attitudes. He was thinking in terms of 72 rather than in terms of one language. This is why that fear has persisted. While I talk about Zambia from my own studies and experience; I am in fact speaking about the majority of African countries where the situation is no different. As a people we are not ready yet to engage in a discussion about these rights. Perhaps this is why I should congratulate South Africa for embracing them.

It is important to emphasise that South Africa is party to the African Charter on Human and People’s Rights, and since it has ratified the African Charter, groups who feel their rights as members have not been met could invoke Article 19 of the Charter which allows, that a complaint may be referred to them after having exhausted the local remedies such as going through the Commission and going through the South African courts. One may take your complaint to Banjou in Gambia (a tiny African country). One does not have to go there physically and can simply write. Contact me to give you the address. One can write in any of the African Union languages and explain your problem. South Africa can then be judged by the African Commission.

In addition, I would like to mention that, like in the case of the Sam people of Ketokie in Sweden representing the Sam people which dragged the whole of Sweden to the Human Rights Committee in Geneva to complain that their practice of reindeer herding had been destroyed by the new state, you are also entitled to take South Africa to Geneva and complain. South Africa has ratified the Covenant on Civil and Political Rights (in addition to the African Charter) whereby Article 27 guarantees and protects the rights of groups to participate freely in their cultures and languages. This is done expressly to help South African society so that if we are setting values at the local level, and we don’t seem to find the values, we can approach the international community to help us find an appropriate balance.


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