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Does gang violence constitute a violation of our human rights?

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As we celebrate Human Rights Day, South Africans are reminded of the struggles of the past, particularly the 1960 Sharpeville massacre that resulted in the murder of 69 individuals, and pay homage to the heroes who bravely fought for the dismantlement of Apartheid. Human rights are defined as universal values that are integrated in every human being and grants each individual their dignity and enables their development. In 1948, the United Nations (UN) defined within the United Nations Declaration of Human Rights (UDHR) 30 Articles that outline the fundamental human rights of each individual; ironically, the same year in which Apartheid was born. South Africa supports the UDHR and has included many aspects of the declaration in the Bill of Rights – the cornerstone of South African democracy.

Fundamental rights and freedoms, according to the UN, comprise all civil and political rights, including; the right to personal security, the right to freely assemble, the right of association, the right to life, and the right to movement. In 1993, the UN declared that all human rights are indivisible, interrelated and interdependent.

How has South Africa fared in terms of international human rights standards?

South Africa, as a country, is party to numerous human rights bodies and conventions that were developed by the African Union (AU) and the UN, which speaks to the notion that human rights are acknowledged to be instrumental to the life of each South African. South Africa is also party to the AU Charter on the Rights and Welfare of a Child (ACRWC) and the UN Convention on the Rights of the Child (UNCRC), both of which were adopted in 1990. These instruments guarantee the right to life, association, movement, and assembly to the South African child.

Professor in international human rights law at the Centre for Human Rights at the University of Pretoria, Michelo Hansungule explained that since the dismantling of the apartheid system, South Africa is considered to be abiding by the basic human rights in comparison to other African countries. However, there remain serious areas of concern, specifically in the area of security.

Closer to home, Cape Town battles it’s most serious challenge – gang violence – which violates the maximum right – the right to life.

The right to life, as stipulated in the International Convention on Civil and Political Rights (ICCPR), is considered a non-derogable right and may, therefore, not be violated even under a state of emergency.

Though the right to life is declared protected in the constitution of South Africa and international law that is applicable to South Africa, however in practice, individuals residing within gang infested areas are not guaranteed their right to an adequate quality of life as their rights to free movement and to freely associate are consistently violated.

“Many of the fundamental rights and freedoms, especially within the category of civil and political rights, are completely wiped out by gun violence,” Hansungule asserted.

Hansungule explained that the state is the main duty bearer of these rights, whilst society is the secondary duty bearer. Both the state and society is, therefore, duty bound to ensure that human rights of community members are not violated.

How can South Africans access the basic human right of safety and security?

With regard to the repercussions that states face, if they are found to be in violation of ratified conventions, the state can be questioned by treaty bodies. One such body is the treaty body of the African Charter; the Committee of Experts on the Rights and Welfare of the Child (ACERWC). A similar committee has been established under the UNCRC.

Every four years, in the case of the UNCRC and every two years, in the case of the ACERWC, South Africa is required to submit reports of the government, as well as all stakeholders in the area of children rights.  These reports need to define the steps that have been taken to protect children and the mechanisms developed to improve and ensure a secure environment.

If South Africa is found to not have made adequate steps the state can be questioned by the expert bodies. Under the African Charter, South African children or children organizations may submit state party complaints to the ACERWC.

“A child facing gun violence could forward their complaints and South Africa could be questioned; like instituting a legal suit against South Africa,” Hansungule explained.

This action will result in South Africa being discussed publicly as a country in which the rights of children are violated. In addition, South Africa may face condemnation by the international community through those bodies for failing to take adequate measures to protect the child. South Africa can also be found to be in breach of the rights of the child. The state will, therefore, subsequently be called upon to provide remedies.

“Even though children and other segments of society face violations of their human rights, they do not usually utilize these mechanisms to ensure the protection of their rights are guaranteed.”

Hansungule explained that individuals, due to a lack of awareness, do not make use of the complaints mechanisms.

In addition, individuals do not lay complaints against their governments since it may appear unpatriotic.

A third factor is the provision that individuals first exhaust local remedies before laying formal complaints. Local remedies imply having money, resources and legal counsel, which many individuals on the Cape Flats do not have access to.

With regard to remedies for the current gang upsurge, Hansungule asserts that the reinstatement of the death penalty is not a solution for ensuring security.

“Those criminals who perpetrate grievance crimes do not think of the consequences in countries where the death penalty is hanging.”

South Africa, therefore, needs to continue to abolish the death penalty whilst strengthening the legal mechanisms and the institutions which are mandated to protect society in order to restore a sense a security.

The reality of gang violence and crime 

As the community of Manenberg comes to terms with the recent murder of a mother of five who died as a consequence of gang violence, it is becoming extremely difficult to sustain the sentiment that South Africa has improved in terms of crime prevention since the country is synonymous with criminal activity. Executive director of the Trauma Centre for Survivors of Violent Crimes and Torture, Valdy van Reenen-Le Roux, explained that community members are not sure if they can expect a violent-free human rights day or Easter weekend.

The reality on the ground, both in Manenberg and the greater Cape Flats area, is that community members are finding it increasingly difficult to report gang violence as they fear for their safety.

MEC for Community Safety Dan Plato recently had a ‘walk-about’ in Manenberg and encouraged residents to utilize the Prevention of Organized Crime Act. Le Roux, however, explained that community members do not have faith in a witness protection programme neither in the justice system. Individuals who reside in gang infested areas have normalised the presence of gang violence, and instead of remaining indoors when gang violence is taking place opt to remain outside.

“Where you would expect people to cry, people may have a different reaction and laugh,” Le Roux noted.

This reaction to violence indicates that community members though subconsciously choosing to view gang violence as a normal aspect of life, have learnt to cope with their surroundings.

Le Roux explained that the use of substance abuse on the Cape Flats in many ways has a direct correlation to the presence of gang violence.

“It’s easier to forget for a few hours that people, some of whom are very close to you, are dying on a daily basis.”

She further asserts that the resilience and hope that community members display is a valuable asset in their plight to combat gang violence.

“It is stories like the man from the community who qualified as a doctor and Wayde Van Niekerk who broke the world 100-metre record that give them honour and inspiration.”

Ground up intervention

In addition to these inspiring stories, a new generation of human rights defenders has been born out of the Cape Flats area, such as the Rock Girls movement in Manenberg, who are spreading their story of not wanting to give up despite their circumstances.

“I have seen more interventions come from community members who have taken out of their own pockets,” Le Roux explained.

Le Roux asserts that the Department of Community Safety and more importantly, the Ministry of Police, needs to implement a revised policy on gang violence prevention.

“If we continue to concentrate purely on security response to gang violence we are not going to get far. Operation Fiela, [though] it has been phenomenal, is implemented in isolation of the other departments – we are looking for a long-term solution.”

She, therefore, urges an interdepartmental mechanism, inclusive of the Department of Safety and Security, the Department of Education, and the Department of Health, that is directed toward preventing gang activity and gang violence.

“I think that we have been denied our human right in terms of safety and security, people do not believe that government can resolve the problem of gang violence,” Le Roux asserted.

It is, therefore, evident that government has not ensured the personal security of citizens, and that females and children have become the most vulnerable in terms of the protection of their rights and freedoms. Children need to be educated about the consequences of gang violence and be granted access to resources that will enable them to be contributing members of society. In addition, Government needs to implement mechanisms that will ensure access to the basic human rights of; safety and security, housing, food security, education, and psychological support, as means to prevent a generation of violent youth.


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