As previously mentioned by this author, South Africa will have a very tough time meeting its commitment to the UNFCCC process. The IRP2 process has brought together industry, government, the academe, civil society and industry – including independent power producers (IPPs) – as never before. The IRP2 hints at the changing nature of energy security ethics and legal approaches in Africa. While the IRP2 does not fully embrace this new brand of energy ethics, it will start South Africa on the road towards a reduced reliance on coal-fired electricity production. There is still hope for critics of the plan. Energy Minister Dipuo Peters has promised that the IRP2 was written with enough “flexibility” to, for example, embrace more renewable energy in the future should it be desired.[1]

In brief, South Africa suffers from an energy paradox. The country has a long tradition of electrification. Indeed, the city of Kimberley had streetlamps before London, England![2] For most of South Africa’s history, those with access to the grid enjoyed a very stable stream of supply from Eskom, the state-owned electricity producer, distributor and grid operator. Of course, the parastatal, as with all government services during the Apartheid era, had racially motivated aims and deliberately withheld services from black and coloured South Africans.[3] There are still serious ongoing disputes about equity in service provision.[4] Nearly a quarter of South African homes lack access to the grid. Over 55% of rural dwellers lack electricity. As no small aside, coal is king in South Africa. Eskom reported that during fiscal year 2009/2010, 232,812GW/h of electricity were sent out on the grid – 92.8% of this was derived from coal-fire power plants, 5.5% from nuclear power, 1.5% from pumped storage, .5% from renewables and .02% from gas.

Since 1994, a build-out program has aimed to increase equity in service delivery to the general population, but power shortages  plagued the country in 2008 and are threatening to challenge the grid again during the coming decade. While it has been acknowledged that powerful industry players cut back-room deals for cheaper and more secure supply contracts with Eskom, the government has had to ram through a “medium term risk mitigation plan” (MTRMP) – fittingly entitled “Keeping the Lights On” – to provide a basic level of energy security for the general population over the coming decade. The plan for power generation over the medium-term is carbon intensive, although programs for demand-side management and energy conversation are being funded.

The IRP2 is the crucial link for long-term electricity planning in South Africa. Elements of sustainable development theory are present in the strategy, as criteria such as water usage, climate change effects (environmental), localisation benefits, regional development goals (social), and financial costs and portfolio risks (economic) are all accounted for.[5] The government has even extended the consultation period for the IRP2 process to harness more input and support from civil society members and sub-national levels of government.[6] The plan would see licensed capacity on the grid expand from 44,535MW in 2010 to 85,241MW in 2030, with a reserve margin of 15%. The bulk of new generation would come from renewables (11,500MW), nuclear power (9600MW), coal-fired power (5,000MW), open-cycle gas turbine generation (4830MW), and imported hydro-power (3,349MW).[7] While these numbers look promising, it must be mentioned that over the medium-term all regular plans to commission major coal-fired facilities at Medupi, Kusile, and Ingula are going ahead – despite protests from local South Africans to World Bank officials.

To a large degree, the assumptions underlying the IRP2 reflect an out-dated model of energy ethics. Predictions of demand and supply are underpinned by assumptions of gross domestic product (GDP) forecasting, even though this indicator is increasingly under fire and decreasingly touted by developed nations. Additionally, while public buy-in is being sought, the entire energy plan seems to hinge on large-scale, capital intensive energy planning. Very little room is carved out for grassroots involvement. Indeed, recent efforts by the Energy Minister to promote initiatives such as community wind projects do not seem to fit into this policy in any real fashion. Also, the report lacks detail as to how demand-side management will improve. Mandating Eskom to actively reduce consumption patterns in South Africa defies the very ethos of the parastatal. A third-party organization should be tasked with this responsibility, and plans to create an independent system operator need to be sped up to drive innovation and enhance the competitiveness of IPPs.

As noted above, the IRP2 has a lot of problems. However, the principles of sustainable development and climate law have started to seep into the domestic energy policy process of South Africa. Only time will tell if South Africa will truly embark upon a new path or stay chained to the energy paradox.

[2] G.Z. Ben-Yaacov, “Power Generation in South Africa to the Year 2000” (1979) 4 Energy 47 at 47.

[3] Leonard Gentle, “Escom to Eskom: From racial Keynesian capitalism to neo-liberalism” in David A. MacDonald (ed.) Electric Capitalism: Recolonising Africa on the Power Grid (Cape Town: HSRC Press, 2009) at 50ff.

[4] Jackie Dugard, “Power to the People? A Rights Based Analysis of South Africa’s Electricity Services” in David A. MacDonald (ed.) Electric Capitalism: Recolonising Africa on the Power Grid (Cape Town: HSRC Press, 2009) at 264ff.

[5] Department of Energy, Integrated Resource Plan (2010 Rev. 2) at 13.

[6] Terrence Creamer, “Urgent Engagement: Provincial roadshows planned to broaden energy-plan consultation” (29 October 2010) Engineering News at 11.

[7] Ibid at 17.

This study explored these tensions, drawing on in-depth, semi-structured interviews conducted with twelve voting-age women of color^[3] in Cradock,^[4] Eastern Cape, South Africa, during the month of July 2009.[5]  

Knowledge of, and Ability to Engage with, Rights

The research design began with a traditional definition – that citizenship rests on both the knowledge of and ability to claim rights. As expected, gender, geographic marginality, and the continuing challenges of post-apartheid transformation do combine to alienate women in Cradock – differentially along ‘race’, ‘class’, and age lines – from both aspects of their democratic rights.  Findings also, as we shall below, showed this approach is insufficient for a full understanding of women’s lived experiences of the transition to a new, democratic South Africa.  Particularly in the post-apartheid state, where individuals have such intense associations with the idea of “South Africa”, it is imperative to consider peoples’ shared emotional histories.

Knowledge

From struggle heroines to schoolgirls, research informants stated that they had no knowledge of the content of the Constitution of the New South Africa.  Most notably, they had not been educated – as new citizens in their adult years, or as emerging ones in the school system – about the Bill of Rights. This lack of emphasis from either community or state structures means that some do not perceive rights as relevant to their lives:

Interviewer: So do you know your rights under the Bill of Rights of the Constitution?

Langa (‘black,’ 27): Honestly, I’m not that deep on this, so I can’t lie.

No!

[Laughing] Not really. I can’t lie, so, no…

The way I have survived I think – it’s not important for me, because it doesn’t work for me…

Because, what I think, if

I should have [known] that if it is important at least – by now I should have known – something about it.

Ability to Engage

Nomfundo (‘black,’ 27) explains how the intersections between female gender, socio-economic marginalization, small town location, and ‘race’ compound challenges in implementing rights and democratic citizenship:

As for women, there’s still a big gap…

You know, Emily, we have got very powerful offices about human rights. Whenever someone talks to you like that you should go there, but it does not happen! I mean, we are living in Cradock, miles away from Johannesburg, then where are you going to go so that your voice could be heard? …

Where are you going to – go and say, ‘This is the problem that I have’? And human rights need to be regimented [implemented.]

Then if you ever go to a farm and this – white man owns the land, he owns that people, not that he does, but – ‘I own you’!

And you, you – you have to kneel down whether you like it or not, so politics won’t help you. If you come with your clever mind, you are out of a job…

We are still living in that. There are those who say, ‘receive the fruits of democracy,’ but there are those who still say, ‘I don’t even know what democracy is!’

(Nomfundo, ‘black’, 27)

Accessible tools and systems are key, given persistent racialized inequalities in the continuing transition to democracy.  A citizen can enact her rights through formal complaints processes, which requires knowing both her rights and how to access these processes.  Less formally, she can use media to publicize her problem.  These require time, resources, and the cultural capital to engage with these structures.  In addition, citizens who live in small towns may not have full services available in their town or area. Given that many households in the Eastern Cape province are female-headed and rural, women simply cannot afford to travel to get their rights implemented.

Thus, if we assess citizenship using a purely rights-based framework, these women are not full citizens: they lack knowledge about their rights and access to formal engagement systems. However, these women do not seem to define their citizenship as knowing their Constitutional rights; they do not consider themselves disenfranchised.  There are other factors to consider.

An Enacted Process: Claiming Social Citizenship

Collective organization and civil society engagement are other forms of claiming rights, often called processes of “social citizenship”.^[6] South Africa boasts a vibrant culture of collective organizing.  Many women are or have been active in community organizations of some kind, particularly women who had been adults during the struggle years.^[7] Younger and more elderly women who were not involved in the struggle did not report the same levels of community engagement, and demonstrated a degree of political hopelessness or disempowerment.  However, though generation and political positionality impact how these women engage with their communities, civil society and community organizing are overall more prominent in their lives than formal rights education and access to systems.[8]

Conflicted Feelings: What’s in a Vote?

While conceptions of social citizenship focus on ordinary people working together to make their lives better, the dominant metaphor of democracy – casting a ballot – is individualist. Women of all ages revealed conflicted emotions when talking about the vote.

All of the ‘black’ women reported feelings of joy and happiness, gratitude to Mandela, and excitement about voting. MaDaisy (60) said:

But in ninety-four, I was there [in queue to vote] when another white man who came to me and said sorry. ‘I’m sorry,’ Mr. [B.], it was Mr. [B.], ‘I’m sorry for the way we treated you, but we couldn’t do otherwise. It was – the way of living, it was our way of living. It was our work.’ I said, ‘No, I was not surprised.’ Because I know

Why I was

For what I was voting for.

Today we are voting, I’m going to do my X for the first time.

I told him, I told him, ‘No, don’t mind, I am not cross.  You were working for your children, I was struggling for my children.’

‘Coloured’ informants did not, however, echo this sense of the vote as validation:

I said, ‘I’m not going to go vote.’ And a lot of people said, ‘But you must go!’ You know, I’ve got my own will. I don’t want to go vote, I won’t.

And then they said to me, ‘But yeah, then you’re [not] going to be part of when everything is fine” …

I said, ‘So?’ I’ve got a right to be in South Africa, nobody can tell me that ‘you’re not a South African because you don’t want to go vote.’…

I had to work it out with myself as a person, and I had to go sit and see – like what’s going to be the best for me…

But I must, I must make my own choices. Nobody can force me to do something. But eventually I went [to vote].

(Audrey, ‘coloured’, 53)

Younger ‘black’ women revealed problems with formal politics. Nomfundo and Langa (both 27) stated that suspected COPE^[9] members face personal harassment or loss of employment; further, one of them was harassed by election officials to reveal who she voted for as she exited the poll in the 2009 election.  This demonstrates a widespread perception in Cradock that to be free of harassment, one must exercise one’s democratic right to vote in a particular way.  This negatively impacts democratic freedom and citizenship.

Beyond Rights: The Affective Dimension of Citizenship

These stories demonstrate how rights-based citizenship fails to capture the nuanced realities of small town citizens in South Africa.  The mainstream liberal democratic vision of equal subjectivity and citizenship assumes a homogenous society which does not resemble contemporary South Africa.  It is nevertheless based on a fundamentally sound ideal – that of true equality between persons (Mouffe, 1989).  The trouble is that the Enlightenment definition of who counted as an equal person was flawed, and subsequent democratic struggles have achieved only partial corrections (Mouffe, 1989, see pp. 35-36).

Informants’ discourses were often underpinned by an ideal (of) public life, which is only partially described by either formal or substantive rights-based citizenship. Feminist thought has thoroughly discredited the binary division between private and public, or personal and political.  So too is the division between the individual and the environment under examination.

In this spirit, the notion of “public life” is not attached to a spatial division arbitrarily demarcated as “public” or “private” by the walls of a home.  It draws on Irigaray’s (2000) argument that civil co-existence is the basis for full democracy, including substantive citizenship; egalitarian domestic relations thus are the foundation – and a necessary precondition – for democratic life.

However, in the communal cultural groups which constitute South African society, a focus on the domestic partnership or the nuclear family – while crucial for women’s citizenship in the face of the gender-based and sexual violence epidemic in South Africa (du Toit, 2005; Moffett, 2009) – is too limited. Informants clearly indicated that, for example, how people are treated in public spaces like the municipal offices and clinics is important to their ideal public life.  They stated that whether vulnerable groups such as children, farm workers and the elderly have access to “true,” not merely “political,” freedom is a measure of how substantiated citizenship is, for every member of South African society.

Mainstream democratic theory does not capture the real needs and conditions of peoples’ lives. Citizenship means more than rights.  Rights are the vehicles for implementing recognition of peoples’ inherent dignity and humanity, the ultimate purpose of which is to make us all feel included in the national community.  Citizenship, therefore, can no longer be understood primarily as a rights-mediated relationship to the state, especially in today’s South Africa.

^[2] Following critical race scholars in South Africa (notably Erasmus: 2000, 2001, 2008), I use quotation marks around racial group technology in order to highlight the contested and socially constructed nature of ‘race’.

^[3] For those unfamiliar with sociological research, the case study is a qualitative methodology aiming for depth rather than breadth of results.  Case studies – like many qualitative sociological methodologies – rely on small samples to explore the richness and texture of the data.

^[4] Cradock is best known for the high-profile apartheid government murder of four leaders, called the Cradock Four, in June 1985, a case heard by the Truth and Reconciliation Commission in 1999.

[5] The broader case study is part of the Small Towns and Rural Transformation Project (STRTP) of the Intercultural and Diversity Studies Research Unit of Southern Africa (iNCUDISA).

^[6] This shift occurred during the struggle years, when resistance was framed as social citizenship (Britton and Fish, 2009: 12).

^[7] In Cradock, these were especially the early-to-mid 1980s.

[8] There is a perception that ‘coloured’ people have weaker community structures, probably due to the national fiction that the ‘coloured’ community was not involved in the struggle. While the extent of involvement differed, this is not historically accurate.

^[9] COPE is a relatively new national party in South Africa, formed in 2008 from a splinter of the ruling African National Congress (ANC).

“Our history has been a bitter one dominated by colonialism, racism, apartheid, sexism and repressive labour policies. The result is that poverty and degradation exist side by side with modern cities and a developed mining, industrial and commercial infrastructure. Our income distribution is racially distorted and ranks as one of the most unequal in the world – lavish wealth and abject poverty characterise our society.”[1]

Since 1994 the African National Congress (ANC) has tried to ‘have its cake and eat it, too.’ The ANC has led a broad-based coalition that governs, more or less, from the centre of the South African political scene, but its current domestic economic policies do not seem to withstand the strong pull of its international commitments. Economically, ‘revolution’ in South Africa has been a tricky subject for policymakers within the ANC. The government has since 1994 been part of a tri-partite alliance with the Coalition of South African Trade Unions (COSATU) and the South African Communist Party (SACP) – these two parties giving a strong leftist tinge to the government’s composition and policymaking ability.

The country is outwardly open to investment, and President Jacob Zuma has boldly courted corporations to assure them his coalition will not create an “anti-business” atmosphere. However, committing to a neo-liberal trade agenda has not been easy for Zuma politically, and has been very tough on the nation. Economic stimulus packages have been described as a process of “picking winners” in South Africa, mostly because the ANC has had to balance its political standing with larger ambitions, which include becoming a member of the BRIC economic bloc.

Following the 1994 regime changeover, social development imperatives weighed heavily upon former President Nelson Mandela. The Reconstruction and Development Programme (RDP) has been a key policy fixture for the ANC since that time, yet much work remains to be done before the party can claim to have succeeded in implementing the strategy. Over time, the external economic outlook of the ANC has shifted dramatically “from the radical social democracy … in the 1980s to the neo-liberalism of GEAR [Growth, Employment and Redistribution action plan] in the 1990s.”[2] As Harald Winkler points out, “the imperatives of reconstruction and development have been in tension with a macroeconomic framework that emphasises economic growth as the driver of development….”[3] South Africa is currently attempting to widen free trade agreements in order to boost foreign direct investment to drive its internal development strategies. Yet, this strategy fails to heed the above-recognized inherent tensions of this pathway.

The social strains of an expedited free trade process might prove unbearable for South Africa. The nation’s poor increasingly resent treaty involvement with the Southern African Development Community, which allows for relaxed tariff barriers and immigration controls with member nations. South Africa is flooded with refugees and economic migrants, lacks adequate national infrastructure, and labour grievances are vast. A nationwide strike led by COSATU nearly crippled the country following the 2010 FIFA World Cup. A recent New York Times article drew attention to the effects of the bipolar nature of South African economic planning upon the population at large. More than half of blacks aged 15-34 are without work. There are fears that a deeper cultural problem may be to blame, as “economic modernisation has undermined traditional local identities.” This can cause widespread social insecurity and a breakdown of the social structures that buoy the state.

A heavily regulated commercial environment confronts companies that wish to do business in South Africa, putting the breaks on the full-blown trade liberalization that the ANC is aiming for. Policymakers should be balancing the imperatives of the RDP with the widening of international trade, but politics are inhibiting this process. Influential observers have wondered if this might be the end of the tri-partite coalition. Since the ANC wants to liberalize trade, why does it not liberalize politics and release itself from a political bind with the SACP and COSATU? Regardless of one’s political stripes the respective parties seem worlds apart in terms of economic outlook. The present political situation hampers a larger debate over the steering of the nation’s economy. Innovation in industry and trade should be accompanied by innovation and the free flow of ideas and policy debate in politics, something that simply does not happen under the ANC’s supermajority in parliament.

[2] Leonard Gentle, “Escom to Eskom: From racial Keynesian capitalism to neo-liberalism” in David A. MacDonald (ed.) Electric Capitalism: Recolonising Africa on the Power Grid (Cape Town: HSRC Press, 2009) 50 at 68.

[3] Harald Winkler, Cleaner Energy, Cooler Planet (Cape Town: HSRC Press, 2009) at 31.

Internationally, the world was awakened to the relative instability of the global energy market by the 1973 OPEC oil crisis.[2] Since then, the West’s focus has been on maintaining security of supply, and increasing overall capacity across the energy sector in a state-centred, top-down fashion. Matters such as energy efficiency have largely fallen by the wayside, as the decreasingly regulated energy marketplace is centred on the production and consumption – but not saving – of energy.

A state-centred focus on ‘sustainable development’ has started to pervade some facets of international law since the release of the 1987 Brundtland Commission Report. Bosselmann asserts that sustainable development “has become the concept which must guide both individual and collective action at every level and national and international policies.”[3] The Brundtland Commission Report states:

Sustainability requires the enforcement of wider responsibilities for the impacts of decisions. This requires changes in the legal and institutional frameworks that will enforce the common interest. Some necessary changes in the legal framework start from the proposition that an environment adequate for health and well-being is essential for all human beings including future generations. Such a view places the right to use public and private resources in its proper social context and provides a goal for more specific measures.[4]

USAID launched its African Infrastructure Program (AIP)[5] to try and assist large energy producers in launching renewable energy generation and transmission projects. The mandate of the AIP is to provide targeted financial advising in a project’s initial phases, helping to bring a project to financial close by offering “independent advice in a non-partisan spirit.” However, it can be argued that the AIP operates under a strong bias, as all generation projects under its portfolio must be no smaller than 20MW, and valued at no less than $50 million USD. They specifically do not deal with independent power producers (IPPs); rather they assist governments in dealing with and regulating IPPs. Of course there is a need for this, but it is interesting that this development strategy is not balanced out by providing analogous programs for citizens of the nations where USAID operates. For instance, the government may be able to manage IPPs but if there are no grassroots efforts at strengthening labour pools, increasing public understanding of energy efficiency matters, and helping communities develop their own energy strategies, then the renewables sector will not become truly competitive. It certainly will not decentralize energy production, which is a core goal of sustainable development energy policy.[6]

Bosselmann sees three key ethical challenges that confront modern energy policymakers: 1) a broadening of our ethical concerns for energy taking into account matters of social, environmental and future equity, 2) increasing concern for the well-being of all, not just human inhabitants of the planet, and 3) that the guidance of sustainable development is now seen as a must, not a mere consideration in policymaking.[7] Moving to the African context, Omorogbe highlights the social tensions behind the energy security situation on that continent quite aptly:

Within the context of Africa, it should be understood that norms emanating from sources other than those of the states play a major role in regulating the personal lives and day-to-day transactions of the ordinary citizen, as distinct from the roles of formal laws or customary law. Whilst the enacted laws of the state totally regulate all of criminal and administrative law, and a great proportion of contract, customary law features significantly in land law, inheritance, and succession. For day-to-day living and for processes that aid the smooth functioning of life’s activities, order and regulation emanate from other sources that have been created or evolved to fill the vacuum arising from the failure of states to fulfil basic functions of governance such as the administration of justice, revenue collection, the provision of utilities, and other measures to enhance the quality of life, and provide for the security of citizens. In many states the governments at all levels have failed to look after their citizens and play little or no part in their lives and development. The resulting vacuums in these countries have been filled by various community-based mechanisms that centre around the traditional extended family, ethnic, and community systems [emphasis added].[8]

This notion of energy security jives with other notions of security that have been previously discussed by this author on this blog. The state, and by extension the large power producers which are often state-owned in Africa, are only apt to decrease in importance over time, especially due to their poor collective track record at providing energy security in Africa.[9] Renewable energy technology allows the citizenry to make this transition to provide their own energy security at the local level, and will help African nations meet their overall social development goals at the same time, in addition to lowering CO₂ emissions.

The USAID AIP diverts the scarce amount of funding that exists for energy development projects to the very same actors who have been so reluctant to establish a more progressive brand of energy security in Africa. Why would Eskom for instance, the South Africa state-owned electric utility, be any better at providing renewable energy than it has been in producing conventional energy? By choosing to focus solely on state-centred renewable energy USAID seems to misinterpret the opportunity costs involved. As Richard Worthington points out:

Decentralisation of electricity generation offers a range of benefits, including system stability, reduced transmission losses and compatibility with renewable energy technologies and community-based projects, whereby communities are participants in accessing or producing energy, rather than simply clients. Democratising the energy sector, or just the provision of household energy services – i.e. increasing popular participation and public benefits – is a concept that is not well developed in mainstream planning. Failure to diversify our electricity industry [in South Africa] is increasingly recognized as a threat to energy security, but the increasing burden being transferred, as we seek to avoid political capital expenditure in the present, is not quantified.[10]

Many African nations believe strongly in the UNFCC and want the process to be strengthened. Any true implementation of the Kyoto Protocol must include a proliferation of grassroots renewable energy technologies, grid decentralization as described above, and the realization that communities need to begin to take control of their own energy destiny. USAID should not be in the business of helping save state-owned “strategic industries” from the realities of a changing energy security landscape. Rather, they should focus their efforts on micro-lending, technology transfer issues, and stirring up consumer demand for cleaner energy sources in Africa.

[2] Ibid at 7.

[3] Klaus Bosselmann, “Ethical Implications” in Bradbrook, Adrian; Lyster, Rosemary; Ottinger, Richard L & Xi, Wang (eds.). The Law of Energy of Sustainable Development (Cambridge: Cambridge University Press, 2005) at 74.

[4] Our Common Future, World Commission on Environment and Development, UN WCEDOR [Bruntland Commission] 1987, UN Doc. A/42/427, at para. 3 & 76.

[5] The PDF presentation linked above was presented by Alain Rosier at the Wind Power Africa Conference and Exhibition in Cape Town South Africa, 14 May 2010. For more information on the conference please visit: www.windenergyafrica.com. Disclosure, the author has been an adviser to the African Wind Energy Association, which hosted the conference, and chaired the panel in question.

[6] Ottinger writes about the roaring success seen in Denmark, where some 100,000 families own shares in wind turbine cooperatives. Richard L Ottinger, “Legal Frameworks for Energy for Sustainable Development” in Bradbrook, Adrian; Lyster, Rosemary; Ottinger, Richard L & Xi, Wang (eds.). The Law of Energy of Sustainable Development (Cambridge: Cambridge University Press, 2005) at 103 at 106.

[7] Bosselmann, supra note 3 at 74.

[8] Yinka Omorogbe, “Alternative Regulation and Governance Reform in Resource-Rich Developing Countries of Africa” in Barton, Barry; Barrera-Hernández, Lila K.; Lucas & Alastair R. (eds.), Regulating Energy and Natural Resources (London: Oxford University Press, 2006) at 42.

[9] Abeeku Brew-Hammond & Francis Kemausuor. “Energy for all in Africa – to be or not to be?” (2009) 1 Current Opinion in Environmental Sustainability 83-88.

[10] Richard Worthington, “Cheap at half cost: Coal and electricity in South Africa” in David A. MacDonald (ed.) Electric Capitalism: Recolonising Africa on the Power Grid (Cape Town: HSRC Press, 2009) at 132. A free ‘e-copy’ of this book can be downloaded, online:  Human Sciences Research Council <http://www.hsrcpress.ac.za/product.php?productid=2243>.

South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this nation closer to full implementation of the Constitution and the Convention. While the Deputy Minister of Foreign Affairs commented upon the coming into force of the Convention in 2008, that South Africa “has committed itself to removing all barriers faced by persons with disabilities,” this bill is easily assailable for not living up to this statement.

On its face, it is not evident that the new bill will meet its own objectives. Its stated aims are to more sharply define what a disability is, and speed up the appeals process. A parliamentary watch-dog group also noted that ministers were concerned with reducing the amount of persons who could receive government social assistance grants and wanted to combat fraud. The new bill defines a disabled applicant as a person with “a moderate to severe limitation to his or her ability to function as a result of a physical, sensory, communication, intellectual or mental disability rendering him or her unable to — (a) obtain the means needed to enable him or her to provide for his or her own maintenance; or (b) be gainfully employed.” Besides the fact that this bill uses the word disability to define disability, the definition still conveys a medical model approach as it only looks as to what the person lacks (means of self-maintenance or ability to be employed), and not how the person can be connected to society. The government has established that the largest problems in South African society for disabled persons are the threats posed by social exclusion, yet the bill does not address this fact. Also, the bill is adding another layer of appeal, and as it does not sharply define disability it does not seemed poised to dramatically lessen the amount of appeals. So how can South Africa take pragmatic steps towards achieving the goals laid out in this bill?

Professor Meryl du Plessis of the University of Cape Town, Faculty of Law, says that the government could start by beginning to look at disability as a “status” rather than viewing the definition through a needs-based lens.[1] While most South Africans are used to the acronym BEE (black economic empowerment), no similar widespread dedicated program or philosophy seems in place to empower disabled South Africans. As the UN Convention calls for “measures which are necessary to accelerate or achieve de facto equality of persons with disabilities,” the government could start from there.[2] For instance, it has been noted that the government has a very poor record of hiring persons with disabilities in the public sector. It could also move towards implementing the 2001 White Paper on Special Needs Education, which until now seems to be collecting dust. The government can curb the amount of disability social assistance grant-seekers in the future if it begins to educate and integrate them now. It is telling that the training of persons with disabilities called for in the Skills Development Act of 1998 fell significantly short of its target.

It is also telling that the whole of the debate around this bill focuses on diminishing the amount of persons on social grants (i.e. saving money), and not on progressing towards a social model of disability rights. It is indeed very hard in a country like South Africa to roll out the types of services such a model requires, as the country is overrun with refugees, faces poverty and unemployment, and its energy grid is plagued by a host of problems. However, the legislative framework is in place here to tackle the disability problem. Strong court challenges could prompt the government to get more serious about meeting its own targets and objectives. What is needed here is strong leadership. After all, South Africa is a country with functioning social institutions, nationwide schooling systems, a strong and independent media and reliable communications systems. It could tackle this issue by spending a fraction of the money it has invested in hosting the FIFA World Cup.

If the bill passes as is, it will not provide the clarity that campaigners are seeking. It is not evident how it will reduce the number of persons seeking or receiving grants because the definition is not clear. It also does not move South Africa towards a more progressive form of social inclusion in its approach to disability law. Disabled South Africans have equality on paper, but programs to educate and integrate them have fallen short of the mark. It is perhaps time that the government think of creating dedicated legislation to protect the rights of an estimated 6% of their population. By doing so they will create legislative cohesion and can more efficiently strive to reach the goals set by the Constitution and the Convention.

[Legal Frontiers Comment: Legal Frontiers thanks the Rathlyn Foundation for its support of blogs relating to Disability & the Law]

[2] Convention on the Rights of Persons with Disabilities, 30 March 2007, UNGA A/RES/61/106, Article 5(4).

The term ‘policing’ here is used in a broad sense. While most people associate the term with the state police (that is, publicly funded policing bodies) the reality is that our day to day lives are made secure in a variety of different fashions: through urban architecture, private security firms, technological methods and neighbourhood watch groups, among other forms of security governance. Clifford Shearing of the University of Cape Town has written extensively on this phenomenon. He recognizes the fact that “the new players in policing are not part of formal government. As a result, governments, especially governments of nation-states, have lost their monopoly on policing.”[1] Shearing and his colleagues note that this is not necessarily a bad thing. Rather, governments should be aware of this phenomenon when drafting security regulation.

However, many dangers lurk when wading into this subject. Do international security firms subvert state security by threatening the development of state structures that can more adequately take into account overall economic and social development goals? Furthermore, does the state lose legitimacy when it delegates security matters to private hands, or leaves certain elements of security to the whims of the marketplace? Lastly, through public or private channels, is the exportation of policing models across national boundaries and cultural divides an effective way of building secure societies?

Private military contracting firms have come under scrutiny lately, especially after the invasions of Iraq and Afghanistan. The core difference between these firms and most security companies is that they specialize in conducting operations in international conflict zones, which ideally are governed according to the Geneva Conventions. However, these security personnel – or “private warriors” as one Public Broadcasting Service documentary dubbed them – operate in a virtually unregulated manner. They have been known to perpetrate grave human rights abuses, as was the case in Iraq when private military contractors killed innocent civilians. US prosecutors laid charges against five guards. However, they had a very difficult time making their case and the charges were eventually thrown out because of a Fifth Amendment violation of the guards’ rights under the US Constitution.

This case proves how blurry the lines of public and private law can get when dealing with private security firms. If these security personnel were soldiers their conduct would have been reviewed in a much more thorough and procedurally clear manner. Simply put, most states do not have legal mechanisms through which they can put such security personnel on trial. In South Africa, the Private Security Industry Regulatory Authority is tasked with regulating such security activities, but it is drastically under-funded and incapable of monitoring the activities of security personnel, who frequently perpetrate human rights abuses and other crimes.[2]

According to the Congressional Research Service of the United States Government, 53% of the Department of Defense’s deployed personnel in Iraq and Afghanistan are private security/military contractors. European scholars have made attempts to link private military company conduct and international law. Yet, these attempts seem to be futile, as public international law is not applicable to corporations who benefit from private, individual juridical personality. Francesco Francioni notes that it is widely held that “private military ‘contractors’ are by definition only in a contractual relation with the hiring state.”[3] While in-depth studies are called for, it is not immediately evident that the presence of private security contractors in Iraq and Afghanistan have led to a more secure environment on the ground.

Nation states and international law thinkers have been much slower in conceptualizing links between international law and the private security sector (that is, security personnel deployed in non-conflict zones). At first glance, this might seem like an area of law that is solely domestic, for national governments can regulate any industry they wish within their own borders. Yet international security firms are now protecting vessels on the high seas, handling security at airports, monitoring communications for large multinational corporations, and otherwise influencing cross-border activities. They also wield a tremendous amount of power in the countries where they do business. This is especially true in South Africa where there is much support from the upper class, powerful (white) clients of these household and commercial security firms.

International security companies perform a variety of policing tasks in South Africa, such as patrolling neighbourhoods and commercial districts, transporting prisoners, operating prisons, guarding mining and energy installations, and performing armoured truck delivery, among other activities. In many communities in South Africa, particularly amongst the wealthy elite, calling the South African Police Force in emergency situations is simply out of the question. There is a heavy reliance upon private security companies, such as ADT and CHUBB Group, for home and office protection. In 2005, there were over 288,000 private security officers in South Africa, many of whom work for international security conglomerates.[4]

Let us look at one such conglomerate to feel out some of the ethical issues involved.Group4Securicor has over 585,000 employees in 110 nations. It is a publicly traded company, earning billions of dollars of revenue every year for its shareholders, to whom it is ultimately responsible. Group4Securicor could be involved in the arrest, transport, and detention of a suspected criminal offender. It performs a wide variety of tasks, and security experts from this company often shift policing models across national boundaries with little thought paid to local social or cultural conditions. For instance, there is widespread resentment in South Africa that ex-Apartheid police officers, many of whom perpetrated crimes in the lead-up to the 1994 elections, are now patrolling neighbourhoods as private security officers, virtually replacing the publicly funded state police. Yet the company’s directors in England might have very little comprehension of this reality.

It is often noted that reactive or repressive policing tactics, whether imported publicly or privately, can be counterproductive and undermine international development efforts.[5]Eleven UN agencies are active in South Africa, yet there is evidence that private security companies hamper social development, especially freedom of movement for lower class (black) persons. Private security models have become increasingly militaristic and repressive.[6] They do not serve the public, rather they serve their clients. This obviously affects the collective psyche of a developing nation like South Africa. So should the UN address this issue, especially in light of its role in bolstering public policing efforts in developing nations?

Private policing models, whether delivered in a militaristic or more subdued ‘security guard’ form, whether publicly funded by states or privately by commercial entities, comprise one small part of an evolving trend of privatization in our global society. We live in a mercenary age. Public agencies give huge contracts to private consulting firms. In the US, charter schools flourish in the midst of deteriorating public schools. In many countries where there are national healthcare systems, private hospitals catering to the rich deliver better results to patients and draw staff away from the public system.

If the international legal community decides to regulate this rapidly expanding industry, a new type of legal mechanism would be needed. Efforts by the International Committee of the Red Cross[7] to inform private security contractors of their responsibilities under International Humanitarian Law are a good example of the type of proactive measures the UN could take to help its member states countervail the negative outcomes of private security. Clearly, more information gathering and dissemination systems are needed. No current treaty system has the type of monitoring mechanisms necessary to keep large security firms in check, and balance the need for private security and public social and economic development.

[The research for this piece was conducted under Professor Julie Berg, convener of a seminar at the University of Cape Town entitled, "Police and Policing: Explorations in Security Governance".]

[2] L. Zedner, “Liquid Security: Managing the Market for Crime Control” (2006) 6:3Criminology and Criminal Justice 267 at 272.

[3] Francesco Francioni, “Private Military Contractors and International Law: An Introduction” (2008) 19:5 The European Journal of International Law 961 at 962.

[4] Julie Berg, The Accountability of South Africa’s Private Security Industry (Cape Town: Criminal Justice Initiative of the Open Society Foundation for South Africa, 2007) at 5.

[5] Susanne Karstedt, “Creating Institutions: Linking the ‘Local’ and the ‘Global’ in the Travel of Crime Policies” (2007) 8:2 Police Policy and Research 145 at 148. Mike Brogden, “Commentary: Community Policing: A Panacea from the West” (2004) 103:413African Affairs 635 at 635. Simon Coldham, “Criminal Justice Policies in Commonwealth Africa: Trends and Prospects” (2000) 44 Journal of African Law 218 at 226.

[6] A. Singh and M. Kempa, “Reflections on the Study of Private Policing Cultures: Early Leads and Key Themes” in M. O’Neil, M. Marks and A. Singh (eds.) Police Occupational Culture: New Debates and Directions (Oxford: Elsevier, 2007) at 305.

[7] Benjamin Perrin, “Promoting security of private security and military companies with international humanitarian law” (2006) 88:863 International Review of the Red Cross 613 at 635.

Professor Fatima Khan is a refugee lawyer and the Executive Director of the University of Cape Town Refugee Law Clinic. The clinic is funded by United Nations High Commission for Refugees (UNHCR), the University of Cape Town, the Atlantic Philanthropies and the Sigrid Rausing Trust. The clinic houses a centre for applied research, and has provided legal assistance to refugees and asylum seekers since 1998.  Ms. Khan lectures on Refugee Law to undergraduate and graduate students at the University of Cape Town, and is currently editing and co-authoring a bound volume that will analyze refugee legislation in various global jurisdictions.

[You may stream or podcast a 20 minute interview with Ms. Khan here]

Philip Duguay: You are a scholar who studies interpretation of international refugee law across various national jurisdictions. Where does South Africa lie on the spectrum in terms of its acceptance and implementation of the 1951 UN Convention on the Status of Refugees? In other words, how much weight does the Convention carry in South African case law?

Fatima Khan: The Convention carries a lot of weight in terms of South African law. The entire Convention has been accepted into South African law. However, I must say that South African refugee law is far more progressive and advanced than the Convention, which is in my view a ‘Euro-centric’ document. The definition of the refugee in South African law, for example, is far more extensive than the definition of the refugee in the UN Convention. The UN Convention only accounts for refugee status on an individual basis, whereas that’s not the case in South African law where you can be granted refugee status on the basis of a serious disruption in the country of origin. In that case, you do not need to prove as an individual that you have suffered persecution. It is enough for you to claim status on the basis of the failed state that you have come from, or the fact that the state you have come from has been occupied. Unlike the UN Convention, that’s completely stuck on the fact that you should feel persecution as an individual, South African law is a complete breakaway from that. It is completely in line with the OAU [Organization of African Unity, now the African Union] definition.

PD: Isn’t Zimbabwe a failed state? Why don’t economic migrants from that country have the ability to seek asylum status here?

FK: Well, it would be very difficult to say that Zimbabwe is a failed state. Zimbabwe has a central government. There may be issues within the Zimbabwean government at the moment, but they clearly are a functioning government.  Zimbabwe is not your typical state where there is a ‘serious disruption of public order,’ – this is the basis on which you would be granted refugee status in South African law and also under the OAU Convention. Another ground would be that the country has been occupied, and clearly this has not happened in Zimbabwe.

PD: Right now there are 3.5 million Zimbabweans living in South Africa, the majority of whom live here because they would probably starve to death in Zimbabwe.

FK: In terms of the OAU definition and as it has been interpreted in case law, when you analyze a serious disturbance of the public order, it should be synonymous with a civil war, where it should be impossible for someone to live a normal life. Now, that clearly is not the case in Zimbabwe. People may be very, very poor there because of the failed economy, but that does not mean that there is a violent disruption and that people are unable to walk the streets and that bombs are falling, as you would have today in Mogadishu [Somalia], or Goma in the eastern DRC [Democratic Republic of Congo], for example. Those would be your typical cases where the definition would be extended to include groups rather than individuals.

PD: What are some major differences between the OAU definition of a refugee and the 1951 UN Convention definition?

FK: The group versus individual component of the OAU definition would be the major difference. South African law has extended it further. It also includes, what we call, ‘derivative’ status. If you are a ‘dependent’ of the principal applicant, you may be granted status as well. The manner in which that is extended is because a dependant is widely interpreted, or widely defined, in South Africa. In most western states, dependents would be just the nuclear family, whereas in South Africa, the term has already been interpreted far more widely. It could be your brother’s children. It could be an elderly infirm member of the family. In that way the definition is further extended.

PD: And that’s based upon community norms in South Africa?

FK: Yes. It is based upon the definition of family and dependents in South African law and norms within South Africa.

PD: Who are your clients? Where are they coming from?

FK: I think I can quite safely say that most of our clients are from other African countries. In particular at the moment that would be Zimbabwe, the DRC, Somalia, Rwanda, Burundi, the Ivory Coast, and Ghana. These are the typical nations, but we do have people from the sub-continent as well: we have people from Bangladesh, India, Pakistan, and Sri Lanka.

PD: What are the grounds on which they are making asylum claims?

FK: I would find it hard to generalize. I must say we have had a range of grounds. If we look particularly at Africa you would think it is mostly because of civil war but that clearly is not the case. We have had, for example, many African men seeking status on the basis of their sexual orientation. We have had women on the basis of gender issues such as female genital mutilation or family issues such as forced marriages. So that would give you an idea of the range, but this is in addition to the more typical cases made on the grounds of political opinion, discrimination against religious groups, ethnicity – a lot of cases are made on the basis of ethnicity.

PD: You have told me before there are some immense institutional challenges in this country – an overburdening of the system. I wonder how that affects your clients’ chances of success, assuming they have a valid case, of course.

FK: Despite the fact that we have such progressive law, we are struggling to have that progressive law implemented, for various reasons, and the major reason at this point in time, in my opinion, is lack of resources. The government just cannot cope with the number of refugees seeking asylum. They absolutely cannot cope. In 2008 and 2009, and these are recorded figures, South Africa was the country that received the highest number of asylum seekers in the world. In both years, the figures were close to a quarter million applicants. These are documented people. These are people who managed to get documented at our now seven refugee reception offices in the country. There could be as many who failed to get documented. This could be because they are disregarding the system in the country, or the Department of Home Affairs, who are responsible for the issuing of status, cannot process that many per day or per week or for the year for that matter. I know that in the Cape Town office, for example, they are processing between 350 and 400 asylum seekers per day. This is five days a week and you can do your sums! The Cape Town office might receive close to 100,000 applicants per year, and the Cape Town office and the Johannesburg office are receiving the most applications per year. A few years ago, in early 2007, the Cape Town office was processing no more than between 20 and 30 applications per day, so we know there has been a massive increase.

PD: What has changed since then?

FK: Well that changed because of litigation. Human rights activists litigated against the Department for failing to allow asylum seekers access. A structural interdict was issued by the court at the time. The Department of Home Affairs was forced to extend their services. They used to only have seven staff members in their office, and two refugee reception officers. Now we know that they have, at the first instance, 35 refugee reception officers, in addition to other staff members.

PD: What are some of the other institutional challenges?

FK: Just looking at receiving 300 to 400 people per day, you know that officials are completely over-burdened, and your status determination officers absolutely cannot, under the circumstances, conduct proper interviews. We have seen rejection letters and we know that they have just not managed to extract the relevant facts, either because of time constraints or just because they are xenophobic and not interested. The large numbers of those seeking asylum has strongly affected the officers in the course of their work. Once you are rejected by the status determination officer the matter has to go to the Refugee Appeal Board, and currently there are only four [refugee appeals] judges in the entire country. We are looking at a massive, massive backlog.

PD: You indicated to me before that 90% of cases at first instance are rejected. How many of those 90% go on to appeal?

FK: They have an automatic right of appeal…. My assumption is that most refugees know this and make an effort to get to the Appeal Board.

PD: So you’re telling me that potentially four judges are dealing with hundreds of thousands of cases per year.

FK: If you look at 2009 you have a quarter of a million people seeking asylum, so we have 225,000 cases that must be heard by the review board. That’s an impossible task.

PD: And so currently that board is hiring new judges?

FK: The board is currently in the process of hiring new judges, and they aim to have an Appeal Board of 32 judges, which is a fair number. In most jurisdictions that’s a fair number. You have a similar number in Canada and Australia.

PD: I know that South Africa exerts full jurisdiction over refugee questions via the Refugee Act of this country, but is there any overview or review conducted by UNHCR? Is there any interaction between UNHCR and the South African government?

FK: Our Act clearly states that our Department of Home Affairs, and even the Refugee Appeal Board may consult with UNHCR on matters, in particular regarding conditions in the country of origins of refugees. So there is interaction.… This is only to inform Home Affairs about those conditions. The other aspect where UNHCR can assist, and where it has vast experience, is with status determination. UNHCR is often brought in to train Home Affairs staff on status determination issues. We have participated in those training sessions with UNHCR already, so we know this has been done and is being done extensively. They intend to do this on an annual basis. On the other hand, UNHCR are assisting refugees through the status determination process in a very big way by funding people like us to help refugees through the asylum process.

PD: What practical advances in international law could make the lives of your clients better, or improve the capacity of the South African government in assisting genuine asylum seekers?

FK: Internationally speaking, what is missing in the UN Convention and the [1966] Protocol is firstly, the right to family unity. You can look at this issue in two ways: as family unity or family reunification, where certain members have already been granted status and others can come and join them. That is something that is missing in the Protocol. What is also absent, and is specifically missing in the UN Convention, is a system for assisting unaccompanied minors. This is something that can be extended in terms of international law. Furthermore, the principle of refoulement in the UN Convention is not regarded as absolute. It is restricted – section 33 restricts section 32. I think in international law we have made so many advances in that area, especially with the adoption of the Convention on Torture. That is something that should be acknowledged in a further protocol. It should be an absolute right that should not be restricted. Would you return somebody to Rwanda where you know that person will be executed? Or, should you return the Rwandan genocidaire to ICTR [International Criminal Tribunal for Rwanda], where he will be punished, but he will be served a punishment that is not cruel or inhumane. No one should be returned to a place where they will face cruel or unusual punishment.

One of the greatest problems in South Africa is that outside of major urban centres the population has only limited access to reliable energy sources. This flies in the face of South Africa’s international energy commitments because ESKOM, which nearly holds a complete monopoly in South African energy production, also provides 45% of the entire continent’s electricity. Of course, this is ‘the dark continent’[1], but South Africans are feeling a power pinch as export demands have been met at the expense of domestic power shortages.

After hosting the World Summit on Sustainable Development in 2002, South Africa made strong legal commitments to reduce its carbon footprint via the United Nations Framework Convention on Climate Change (UNFCCC). The Kyoto Protocol entered into force here in 2005. Despite a rocky start, the South African government recently announced major plans to reduce emissions.

Interestingly, Article 24 of the South African Constitution seems to give strong support to this policy direction:

24. Everyone has the right -

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development

The Energy Problem

The International Energy Agency (IEA) holds that South Africa is the world’s thirteenth largest carbon emitter. Ninety-four percent of the country’s electricity is derived from coal-power plants. Rural dwellers living off the grid can actually consume more energy than urban dwellers because they use large quantities of biomass for their energy needs (using coal, paraffin and wood for heating and cooking).[2] Demand for electricity is only rising as the national energy grid is strengthened and household incomes increase, bringing more consumer electronics and appliances to the masses. President Zuma announced in last week’s address that ESKOM will lose its place as the sole distributor of energy to commercial and residential purchasers. It will recess into the role of an energy supplier to a future distribution agency. But how level will the new playing field be for other power generating consortiums? And what types of power generating operations will be competitive?

The proposed solutions

Windfarm in Darling, South Africa

The South African Department of Mines and Energy held a renewable energy summit in 2009, and it aims to produce 10,000GWh of new electricity capacity by 2013. It also wishes to create universal grid access by 2014. Their ambitious integrated energy plan seems to hit all the standard points. The Western Cape Province in particular has a strong potential for wind energy development. Regional natural gas pipeline projects will take on an increasing importance in the coming decade. According to the plan, energy efficiency programs will be mainstreamed throughout the economy. South Africa has two nuclear power plants and there is speculation that the growing energy relationship between France and South Africa means some form of assistance will come in developing more modern nuclear power facilities.

This high level policymaking is all very important, and South Africa is on track – at least on paper – to make major cuts in its greenhouse gas emissions. It will miss the targets it set under the Kyoto Protocol, but outside of Europe this is a nearly ubiquitous trend. South Africa could help socialize green energy policy via an implementation of a targeted rural energy policy. While one does not yet exist, South Africans (although not necessarily through government intervention) have made great strides in getting energy efficient stoves, wind-water pumps and small-scale wind generators into rural areas.[3]

A Foreign Policy article from earlier this month noted that the recent climate talks in Copenhagen were not a complete failure, because clearer and more uniform monitoring mechanisms had been agreed to by the delegations – even though they could agree on little else. Author David Roberts noted that the Copenhagen Accord could expose “countries’ efforts to public scrutiny and motivat[e] them to follow through.” Despite South Africa’s various handicaps, it has brought its domestic legislation and energy policy in line with the lowest common denominator of international dialogue. The private sector seems to be keying into the commercial opportunities. There currently seems to be a plethora of companies working on green energy and energy efficiency projects in South Africa. Two major energy conferences and trade shows are coming shortly.

[Disclosure: The author will be a research intern at the African Wind Energy Association in Darling, South Africa through July 2010.]

[2] Mapako, Maxwell & Abel Mbewe, (eds.). Renewables and Energy for Rural Development in sub-Saharan Africa (New York: Zed Books, 2004) at 17-25.

[3] Ibid at 27 and 41.