EADI ISS Conference 2021 | For the redistribution of water, framing matters!

EADI ISS Conference 2021 | For the redistribution of water, framing matters!

In the face of increasing pressure on global water resources, a degree of inventiveness in finding just and sustainable ways to ensure access to water is required. The redistribution of ...

COVID-19 | New modalities of online activism: using WhatsApp to mobilize for change by Lize Swartz

COVID-19 | New modalities of online activism: using WhatsApp to mobilize for change by Lize Swartz

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As the COVID-19 pandemic progresses, we are slowly settling in to a ‘new normal’. For many of us, having lived our lives online the last few weeks has made us ...

Death and torture in the Life Esidimeni cases in South Africa: avenues for accountability by Meryl du Plessis

In 2015 the lack of attention to mental health care in South Africa made news headlines when 1,711 mental health care users dependent on assistance were forced out of state-sponsored private mental health care facilities. In what has been called the worst human rights violation since the end of apartheid, 144 of these transferred patients died due to neglect. A number of national and international legal mechanisms exist to hold the perpetrators accountable, but victims and their relatives may need assistance to be able to do so.

In 2015, the South African government decided to move 1,711 mental health care users dependent on assistance for their daily functioning from a state-sponsored private hospital group called Life Esidimeni into the care of other actors, including NGOs and hospitals not specialized in the care of patients, many of whom were suffering from severe mental illness that affected their ability to lead normal lives. Following the death of 144 mental health care users due to inadequate care and neglect, the South African government stated that this decision had been made in order to implement a policy of deinstitutionalisation, to satisfy financial auditing requirements not to use one service provider for lengthy, uninterrupted periods, and to save costs.

A remaining 1,418 persons survived, experiencing conditions that former Deputy Chief Justice Moseneke, the arbitrator in proceedings between the South African government and the families of the mental health care users, described as torture (paras 58 to 141). At the time of the arbitration award in March 2018, 44 of the mental health care users had gone missing in the absence of care, lack of food, water and sanitation and systems to keep track of where users were housed. News reports in March 2019 indicated that some users were still unaccounted for, although many had been traced with the help of police and the Department of Social Development.

Investigations point to rash decision-making and a lack of care

A report by the Office of the Health Ombud has described the provincial health department’s project in terms of which the transfers occurred as “done in a ‘hurry/rush’, with ‘chaotic’ execution, in an environment with no developed, no tradition, no culture of primary mental health care community-based services framework and infrastructure”.

According to the Arbitration Award, the South African government accepted liability and acknowledged that the actions of its officials and its agents contravened South Africa’s obligations under international law, the South African Constitution, 1996, the National Health Act 61 of 2003, the Mental Health Care Act 17 of 2002, and the government’s own National Mental Health Policy Framework and Strategic Plan.

The survivors and the families in the Life Esidimeni arbitration were awarded compensation of approximately R1.2 million (approximately €73,000) each in terms of the common law and in the form of damages for breaches of constitutional rights. Justice Moseneke also ordered the government to construct a monument to commemorate the suffering and loss caused by the government’s actions and to remind future generations of the “human dignity and vulnerability” of mental health care users. He furthermore ordered that government report to the Office of the Health Ombud and to survivors and their families on the contents, as well as the implementation of its recovery plan, which seeks to “achieve systemic change and improvement in the provision and delivery of mental health care by the Department of Health in the Province of Gauteng” (para 7a). Furthermore, Justice Moseneke ordered that the health care professionals involved in the killing and the torture of the mental health care users be reported to their respective professional bodies. Steps taken in this regard should be reported on to the Health Ombud and the claimants.

Pursuing accountability: two possible avenues

The steps taken by government above are arguably insufficient to ensure accountability. Apart from measures that the South African government can choose to implement at its discretion, which accountability mechanisms can be used by social justice organizations representing the victims and their relatives to address the crass disregard for mental health care users’ rights by government officials, health care professionals, and managers of NGOs involved in the Life Esidimeni case?

The Special Investigations Unit, the State’s preferred forensic investigations unit established in terms of legislation, has been successful in claiming back portions of the funds that had been improperly allocated to some NGOs. This was done after a presidential decree to investigate whether NGOs benefited improperly from the Life Esidimeni processes. However, no accountability has followed for government officials and health care professionals who were involved in taking reckless decisions and implementing such decisions. What are the options in this regard?

Firstly, accountability in the form of criminal prosecutions is possible, although the National Prosecuting Authority (NPA) has stated that there is insufficient evidence for criminal prosecutions. However, evidence can be gathered through inquests into the deaths by courts, which have been ordered by the Arbitrator.

Moreover, if the NPA maintains its refusal to prosecute those involved in the deaths and torture, there is the possibility of private citizens instituting prosecution proceedings in terms of the Criminal Procedure Act, although the costs involved make this a prohibitive process for most persons. Funding options for private prosecutions include NGOs and private donors. Without funding and legal assistance, it is highly unlikely that it is an avenue that families would be able to pursue.

Secondly, if domestic remedies are unsuccessful, there is the possibility of laying a complaint with the United Nations Committee on the Rights of Persons with Disabilities in terms of, inter alia, articles 3, 15 and 16 of the Convention on the Rights of Persons with Disabilities.  South Africa ratified the Convention, together with its Optional Protocol, in 2007. However, the Committee may only make “suggestions and recommendations” after considering a complaint (art 5 of the Optional Protocol). Unless there are political or economic repercussions that flow from adverse findings by the committee, it is my view that it is likely to be a weak accountability measure.

These are two possible avenues in the continuing struggle to ensure accountability for the deaths, pain, and suffering caused by the South African government’s, health care professionals’ and non-governmental organizations’ actions in the Life Esidimeni cases. While the report of the Health Ombud and the arbitration award have suggested repercussions for some of the health care professionals and state officials who neglected their duties, it remains to be seen whether the individuals whose actions caused the deaths, torture, and trauma of mental health care users and their loved ones will be held accountable.

Du Plessis photo for blog.jpgAbout the author:

Meryl du Plessis is a senior lecturer in the School of Law at the University of the Witwatersrand. In 2019, she participated in an Erasmus+ sponsored fellowship programme at the International Institute of Social Studies.

Land and property rights in South Africa: questions of justice by Sanele Sibanda

Land and property rights in South Africa: questions of justice by Sanele Sibanda

How we approach contestations over land and property rights in South Africa says a lot about what we believe a just post-colonial constitutional order to be. While politicians and political ...

Confronting Apartheid Through Critical Discussion by Ana María Arbeláez Trujillo and Jeff Handmaker

Confronting Apartheid Through Critical Discussion by Ana María Arbeláez Trujillo and Jeff Handmaker

The history of apartheid in South Africa is generally well-known. Yet, apartheid is not exclusive to that country. According to international law, and on various social grounds, Israel too may ...

Enacting transitional justice in Colombia and South Africa by Fabio Andres Diaz Pabon

Debates on the provision of justice in countries transitioning from armed violence to peace often fail to reflect on how the objective of justice must be linked with its practice. A recently published volume explores this through reflecting on the challenges facing the implementation of the transitional justice framework established in the recently signed peace agreements in Colombia.

Considering the practice of development and justice is as important as reflecting on what development is and what its relation is to justice. However, when we write about justice and development, we often assert what should be done, leaving aside questions on how to do it. This is commonly the case with initiatives related to the implementation of peace agreements, and in particular transitional justice frameworks. Justice and development are intertwined concepts, as discussed by Sen and De Greiff.

“Transitional justice” initiatives form a central part of the transition processes designed to move countries away from war and violence (recall that around 60% of armed conflicts relapse in under five years following a peace agreement). However, debates remain regarding what kind of justice should be sought through these processes: restorative (a system of justice that aims to heal and restore social relations within communities) or retributive (a system of justice based on the punishment of offenders), and whether local or national justice initiatives work better. Initiatives for justice and transitional justice face the challenge of bringing about development in different contexts and of integrating different, even competing, stories. This must be achieved in the face of the risk of overgeneralisation regarding what works and what does not work.

The truth is that we still lack an understanding of what really works in bringing about justice; we have opinions and beliefs on what form of justice is better, but no assessment of this has been done on a long-term basis across territories in transitional contexts—at most we have evidence specific to particular contexts in bounded time frames. However justice and development are endeavours that extend over long time periods. In addition, we must recognise that the study and practice of transitional justice is a fairly recent field; the evidence on what works or does not work is not as clear as we would like.

South Africa’s Truth and Reconciliation Commission—all talk and no action?

The South African case, and especially its Truth and Reconciliation Commission, lauded in the 1990s and early 2000s as a mechanism of transition able to bring justice to victims of atrocities and human rights abuses and to advance reconciliation, is illuminating. The case clearly illustrates the interlinkages between justice and development: marginalised black South Africans were promised empowerment, emancipation and development as an outcome of the transition away from the Apartheid regime, and this was understood as necessary to reconcile the country. However, over time the “ideal” nature of the South African Transitional Justice framework has been critiqued, and gaps in the implementation of the promises of the transition embraced by South Africa have emerged, raising questions regarding failures to realise the vision of justice the country pursued.

From this, it is clear that it is not only important to reflect on what justice is and how it is envisioned, but also on how visions of justice should be implemented. An ideal framework for justice that cannot be materialised is a mirage that erodes the legitimacy of institutions and may create or exacerbate grievances that fuel further conflicts and affect the legitimacy of the state. South Africa did not only face challenges in arriving at its vision of justice; it faced challenges in translating this particular view of justice into practice.

Colombia’s transition: facing similar problems

The transitional justice framework and the promise of justice espoused in general the peace agreements between the Colombian government and the FARC-EP illustrates the complexities of and contestations involved in determining a shared vision of justice, as well as the critical importance of the need to reflect on the challenges of how to affect this justice. Peace agreements are mere pieces of paper—they need to be enacted and realised in order to for countries to achieve peace.

Practitioners, bureaucrats and academics wanting to understand and effectively respond to the implementation challenges of development and justice work must engage the link between theory and practice and focus explicitly on practice. In the case the transitional justice components of the peace agreements in Colombia, this requires consideration of multiple elements. Academics and practitioners in Colombia and elsewhere in the global South have attempted such an exercise over the last two years—captured in the recent publication “Truth, Justice and Reconciliation in Colombia– Transitioning from Violence.

The volume considers how the context of Colombia conditions the possibility of the justice agreements being implemented and the practical implications and requirements of the concepts of justice mobilised in the agreements. The text engages with the challenges ahead for the implementation of the transitional justice agreements, particularly in relation to rural reform, reincorporation and reconciliation, historical memory and symbolic reparation, as well as feminist and intergenerational approaches to justice and reconciliation. The volume also brings together lessons applicable to Colombia from other countries’ experiences with transitional justice—notably from South Africa, Sri Lanka, Peru and Bosnia and Herzegovina.

This kind of analysis will always face the constant tension between theory—the legislative frameworks guaranteeing human rights—and practice—the realisation of these ideas—in complex settings in which generalisations are difficult, evidence is limited, and information is limited. This is the challenging space in which Transitional Justice frameworks will succeed or fail in bringing about development in Colombia, South Africa, and elsewhere.

Picture credit: Camilo Rueda López

UntitledAbout the author: 

Fabio Andres Diaz Pabon is a Colombian political scientist. He is a research associate at the Department of Political and International Studies at Rhodes University in South Africa and a researcher at the ISS. Fabio works at the intersection between theory and practice, and his research interests are related to state strength, civil war, conflict and protests in the midst of globalisation.