A South African Commission's Mandate To Protect Cultural Rights
Human Rights Dialogue: "Cultural Rights" (Spring 2005)
April 22, 2005
On July 22, 2004, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) was officially launched in South Africa—the last of the “State Institutions Supporting Constitutional Democracy” to be set up under Chapter 9 of the 1996 Constitution. South Africa has had a complex, contested history, marked by bitter racial and class divisions in which cultural identity has been the very object of manipulation. For many years white South Africans, themselves divided into Afrikaans and English-speakers, presided over a society where people of colour—Africans, coloureds, and Indians, to use South African racial terminology—worked in the farms, mines, and factories. The cultures of South Africa grew on this foundation of race and class, never hermetically sealed from one another, often interacting and intermingling in surprising ways, from the Afrikaans-based tsotsitaal (gangster language) of black and coloured township youth, to the vibrant church-based tradition of choral singing among black communities, to the pap en vleis (maize porridge and grilled meat) beloved of all South Africans.
Successive white governments, however, particularly that of the National Party (1948 -1994), emphasized difference and incompatibility rather than dialogue and commonality. This policy reached its ultimate expression in the establishment of ‘homelands’ for black ethnic groups and racial separation as a government principle at all social levels. Opposition to such policies gave rise to the African nationalist movement, which was supported by others on the Left. The main opposition movement, the African National Congress (ANC), was emphatically non-racial. The apartheid government tried to politicise racial and ethnic differences, using them to isolate and balkanise communities. In reaction, most in the extra-parliamentary opposition tended to affirm a unity that may have understated cultural diversity and the rights pertaining to it. In negotiations that began in 1990 and lead to inclusive democracy, the ANC argued for a unitary South Africa, even giving ground reluctantly when it came to the creation of the current provinces and provincial legislatures. Nevertheless, at the settlement’s core was accommodation between an African nationalism dedicated to unity and the rights of the country’s varied communities.
The specific background to the CRL Commission was the demand of a section of the Afrikaner community for their own volkstaat, separate from the rest of South Africa, where they could pursue their cultural and linguistic agenda. This demand, which would have compromised the state’s territorial integrity, was unacceptable to the ANC. Nonetheless, in an attempt to acknowledge it, while subsuming the issue in the wider question of the rights of all cultural, religious, and linguistic minorities, the CRL Commission was written into the constitution as part of the ‘historic compromise’ that averted racial civil war. Thus, with other Chapter 9 institutions, including the Human Rights Commission and the Commission on Gender Equality, the CRL Commission was intended to be an intrinsic part of the new democracy, emanating from the immediate political conjuncture, but also based on a broader aspiration to incorporate the whole population in a diverse but united nation.
Though the principles underlying the CRL Commission were outlined in clauses 185 and 186 of the 1996 Constitution, the process of implementation was still to be worked out. In August 1998 debates took place in the national and provincial legislatures, representatives of major interest groups were interviewed, and submissions were solicited from stakeholders. At the first National Consultative Conference on 24 September of that year, some saw the future Commission as a means of strengthening reconciliation and further building the South African nation, while others saw it as a venue for minorities to focus on issues of common concern. These differences aptly reflected the tensions at the heart of the South African experiment.
On one level the CRL Commission is the product of particular power-relations at a time of transition in South Africa when it was unclear who would be the winners and who the losers. That it was set up so late indicates that these tensions rapidly abated, and it no longer seemed urgent to mollify the Afrikaner Right, which had seemed so menacing in the early and mid 1990s. Thus, legislation to bring the Commission into existence was not passed until mid-2002, after the other Chapter 9 institutions were already in operation. The appointment of its eighteen commissioners was announced in September 2003.
Previously, emphasis on identity might have been taken as tacit support for the old regime, which had attempted to divide and rule by manipulating culture, race, and ethnicity. But the end of apartheid has enabled a range of identities to flourish in South Africa, creating an important arena for the CRL Commission. For example, assertively Christian and Islamic education is growing; there is renewed emphasis on traditional African leadership, as with the move to declare Zulu King Goodwill Zwelithini monarch of all KwaZulu-Natal; and there is increasing assertion of the role of South Africa’s many other languages. The Commission embodies the vital constitutional principle of protection of the marginalized or potentially marginalized, and indeed perceives diversity as intrinsically beneficial. In the Constitution’s words, it is to operate “on the basis of equality, non-discrimination and free association,” shunning both collective oppression and the erosion of individual freedom.
The CRL Commission aims to be inclusive, as is apparent in its makeup. The commissioners represent a range of South African identities—even some that are debatable in the sense that they were heretofore local and without leadership. There are representatives of all world religions as well as indigenous African religion; of various language groups, including Afrikaans; and of various ethnic groups. Women, too, are well-represented. Debates about being ‘coloured’ are reflected in the Commission with the emergence, or re-emergence, of Khoisan, Griqua, and other identities that were less stressed, and indeed looked on with some suspicion, in the context of the common struggle against apartheid.
The Commission aims to be proactive rather than reactive, and it is currently dealing with a growing number of complaints, most of them about the actual or perceived marginalisation of language. To many, language epitomises cultural identity: Its importance is shown by the role it plays not only in the work of the CRL Commission, but also in that of the Pan South African Language Board (PanSALB), another constitutionally mandated organisation, which deals with the technicalities of language and translation. However, as Deputy Chairperson Marlene Benjamin pointed out in an interview with this author in September 2004, she would be “devastated if in five years time the Commission had only dealt with complaints.” Its key role, she feels, is “nation-building,” contributing to the forging of a common “South Africanism” from the country’s diversity.
The Constitution stipulates that the Commission can “recommend the establishment or recognition … of a cultural or other council or councils for a community or communities in South Africa.” Although the September 1999 Consultative Conference affirmed that the councils would be a crucial element of the Commission, by early 2005 their specific role had not yet been determined and no existing organisations have been recognised as the definitive representatives of particular cultural or other communities. It appears the councils will be dedicated exclusively to issues of culture, language, and religion that are marginal to the mandates of other newly created institutions under democratic reform, except for PanSALB.
At this early stage it is striking to see Afrikaner separatists, such as representatives of Orania in Northern Cape, who aim to live in an all-white community, meeting with representatives of the full range of South African racial, religious, and cultural organisations, or to see representatives of the Jewish and Islamic communities collaborating. At least in this context, the restrictive South African racial discourse may be beginning to loosen into a wider, less limiting acceptance of and even delight in heterogeneity of many kinds.
So far, then, the Commission appears to be successfully promoting tolerance while, more ambiguously, encouraging the multiplication and elaboration of reified differences that might otherwise simply remain part of the social texture. It remains to be seen if it can avoid becoming an arena for culture-brokers to manoeuvre for leadership positions, and if it can play a real role in giving a voice to the many ordinary people whose culture, religion, and language make up the varied fabric of society. However, the pride of South Africans in their constitutional settlement, of which the CRL Commission is a part, is profound. It seems likely that this will sustain the organisation in deepening respect for cultural rights as part of the extension and elaboration of democracy in South Africa.