The Devil is in the Detail: The Importance of Careful Drafting

Since political willingness to implement human rights and political willingness to promote peace often coexist, but are not identical, it is best that when peacebuilders draft human rights legislation, they connect its provisions to the specific objectives of security, justice or reconciliation they are trying to achieve. This strategy of ensuring that human rights contribute to the building of peace by explicitly linking the two is so obvious that is almost tautological, yet it has often been ignored by peacebuilders, with detrimental effects for the post-violence society. Two examples, one from BiH and the other from SA, serve to illustrate this point. In the first example, the drafters of the BiH legislation did not articulate its objectives clearly, which sent confused messages to intended beneficiaries about the promotion of justice.

Conversely, the objectives of the SA law were well-defined, but the specific legislative provisions intended to give effect to them, were such that they could not achieve the intended goals, even if these were perfectly implemented. Both examples contrast to Section 75 of the NI Act 1998, which is more likely to contribute to conflict resolution, since it both clearly articulates its intended peacebuilding objectives, and creates specific duties on public authorities that can make them a reality. These examples suggest that for a human-rights inspired law to become an effective peacebuilding tool, it cannot only consist of vague

808 There is no well-accepted definition of war victims in BiH. They include, inter alia, victims of international crimes and their families, relatives of missing persons and victims of sexual violence, with their numbers calculated to be in the tens of thousands. (Kate Clark, War Reparations and Litigations: The Case of Bosnia, International Litigation Series No 1 (Amsterdam, Nuhanovic Foundation Center for War Reparations, 2014), 11.)

809 Law on Missing Persons (Official Gazette of Bosnia and Herzegovina Law No. 50/2004), Art. 15.

810 Law on Principles of Social Protection, Protection of Civil Victims of War and Protection of Families with Children (Official Gazette of Bosnia and Herzegovina Law No. 36/1999), Art. 54.

811 Clark, War Reparations and Litigations, 53.

812 Mujkanović et al v Bosnia and Herzegovina App. no 47063/08 (ECtHR, 3 June 2014), [41]. Notably in this case the ECtHR refused to find a violation because although the state authorities had delayed setting up the relevant institutions, they had not been completely inactive.

813 Peter Van der Auweraert, Reparations for Wartime Victims in the Former Yugoslavia: In Search of the Way Forward (Geneva, International Organization for Migration, 2013), 13.

standards and principles; rather, its provisions should be precise and tailored to achieve the peacebuilding goals that shaped it in the first place.⁸¹⁴

Reference has already been made to the BiH legislature’s attempts to remedy war victims through the establishment of the Missing Persons Fund. The previous section argued that the Fund has not contributed to peacebuilding efforts because of delays in its establishment. Yet, even if the Fund had been set up on time, it might still have been ineffective in promoting a sense of justice because of the legal requirements that war victims would have to satisfy in order to benefit from it. For instance, the 1999 Law on Principles of Social Protection that makes war victims entitled to social benefits, applies not only to them, but also to other categories of recipients, such as the elderly, the unemployed, orphans and disabled people who are unable to work.⁸¹⁵ In addition to applying to a wide range of beneficiaries, a series of provisions limit the right of war victims to claim compensation by making its payment conditional on factors that are not related to their victim status per se. So, the compensation received by the spouse of a person who died as a result of the war is conditional on her not marrying again,⁸¹⁶ and the payment made to a family member caring for someone who was made disabled by the war is stopped whenever the person is temporarily placed in institutional care.⁸¹⁷

These provisions send the message that the objective of the 1999 Law is not really to remedy war victims and therefore, undo as much as possible the injustices of the past. Rather, its objective seems to be the establishment of a social safety net for all categories of vulnerable people in the country, irrespective of whether their vulnerability is causally linked to the war.

However, while both are valuable causes, the two should not be conflated. If post-violence justice is to be promoted, the response of the state must directly connect to, and address, those injustices that were caused by the violence itself, and not consider the victim’s circumstances since then.⁸¹⁸ A widow, whose husband was killed during the war, and who remarried at a later stage, is no less of a victim than someone who has decided not to do so. Likewise, a war victim should be entitled to a remedy for the harm s/he has suffered, regardless of whether that person has prospered financially since the said injustices took place. It might be the case that a poor war victim, or a single parent, is in need of greater assistance from the state, and this should indeed be provided, but not by stripping a more affluent beneficiary from his or her victim status. A remedy, in the form of compensation or otherwise, is not just a way of providing material assistance from the state, but has symbolic significance since it acknowledges the harm suffered by the recipient.⁸¹⁹ Precisely because that harm is distinct from the difficulties faced by other vulnerable groups in the society, if the objective of the state is to promote post-violence justice, the provisions of the law should reflect this.⁸²⁰ Thus, by merging its different responsibilities – remedying war victims on the one hand, and protecting members of vulnerable groups, on the other – the state failed to send a clear message that the necessary

814 Urban Jonsson, ‘A Human Rights-Based Approach to Programming’ in Paul Gready and Jonathan Ensor (eds), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice (London, Zed Books, 2005), 52.

815 Clark, War Reparations and Litigations, 27.

816 Law No. 36/1999, Art. 76.

817 Ibid, Art. 74.

818 Linda Popić and Belma Panjeta, Compensation, Transitional Justice and Conditional Credit in Bosnia and Herzegovina: Attempts to Reform Government Payments to Victims and Veterans of the 1992-1995 War (Amsterdam, Nuhanovic Foundation, 2010).

819 Brandon Hamber and Richard A. Wilson, ‘Symbolic Closure through Memory, Reparation and Revenge in Post-Conflict Societies’ (2002) 1 Journal of Human Rights 35, 44.

820 Clark, War Reparations and Litigations, 29.

steps have been taken to promote post-violence justice, rather than social justice in a more general sense.

Equally important to being clear about the peacebuilding objectives of human rights legislation, is ensuring that the content of specific legislative provisions is such that their implementation will lead to the achievement of these goals. It is necessary in other words, that the aims of the Act that are often expressed in its preamble or policy papers that preceded it, accurately translate into, and are reflected by, the nitty-gritty of the law itself. If this does not happen, even the perfect implementation of the law will not contribute to the resolution of the conflict, which it claims to address. This has been the case with the Broad-Based Black Economic Empowerment (B-BBEE) programme in SA, whose stated objective is to empower those whose race had prevented them from accessing the country’s productive resources and developing their skills during apartheid.⁸²¹ The scheme was implemented ‘in order to promote the achievement of the constitutional right to equality’,⁸²² an objective which was expected to contribute to the development of all three elements of peace. Such a programme was necessary for the promotion of security, the Department of Trade and Industry argued when launching B-BBEE, because wealth disparities, especially when coupled with a history of racism, resulted in socially and politically unstable societies and could pose a threat to democracy.⁸²³ B-BBEE was also associated with the promotion of justice, since its adoption was a direct response to the injustices stemming from apartheid policies,⁸²⁴ and reconciliation, which would be enhanced by empowering those who had been marginalised in the past.⁸²⁵

B-BBEE was first introduced with the passing of the B-BBEE Act [53 of 2003], which requires that all public bodies comply with Codes of Good Practice issued by the Minister of Trade and Industry.⁸²⁶ The Codes have to be followed when public bodies issue licenses, are involved in the sale of state-owned enterprises or enter into partnerships with the private sector,⁸²⁷ and essentially provide that ‘black enterprises’ and ‘black empowered enterprises’ are given preferential treatment.⁸²⁸ ‘Black enterprises’ are those that are 50,1 per cent owned by black individuals, while ‘black-empowered enterprises’ are 25,1 per cent-owned by blacks.⁸²⁹ A

‘black person’, according to the Act, ‘is a generic term which means Africans, Coloureds and Indians.’⁸³⁰ The objective of these provisions is to create government-supported incentives for the empowerment of black individuals in a country, where all positions of power had

821 President Mbeki declared that the B-BBEE Act would ‘promote the interests of the disadvantaged black community through job creation and skills development.’ (Quoted in Roger Tangri and Roger Southall, ‘The Politics of Black Economic Empowerment in South Africa’ (2008) 34 Journal of Southern African Studies 699, 713-4.)

822 B-BBEE Act [53 of 2003], Preamble.

823 Department of Trade and Industry, South Africa’s Economic Transformation: A Strategy for Broad-Based Black Economic Empowerment (Pretoria, Department of Trade and Industry, 2003), [1.6]-[1.7].

824 Department of Trade and Industry, The National Broad-Based Black Economic Empowerment Summit: A Decade of Economic Empowerment, 2003-2013 Summit Report (Pretoria, Department of Trade and Industry, 2013), 7.

825 B-BBEE Commission, Strategy of the Broad-Based Black Economic Empowerment Commission, 2017-2021 (Pretoria, Department of Trade and Industry, 2017).

826 B-BBEE Act, Section 10. (The 2003 Act has since then been amended by the B-BBEE Amendement Act [46 of 2013], which has retained the basic provisions and processes of its predecessor.)

827 Broad-Based Black Economic Empowerment Act [53 of 2003], Section 10.

828 Elizabeth A. Hoffman, ‘A Wolf in Sheep’s Clothing: Discrimination against the Majority Undermines Equality, While Continuing to Benefit Few under the Guise of Black Economic Empowerment’ (2008-2009) 36 Syracuse Journal of International Law and Commerce 87, 94.

829 Department of Trade and Industry, South Africa’s Economic Transformation, Appendix B – Definitions of Black Empowerment Entities, para. 1 and 2 respectively.

830 B-BBEE Act, Section 1.

historically been held by whites. Thus, the B-BBEE Act theoretically promotes equality among racial groups and contributes to each of the elements of peace by ensuring that a sizable proportion of managerial positions in companies that comply with the scheme is held by blacks.⁸³¹ In turn, this racialised understanding of trickle-down economics, is expected to accommodate ‘the needs of the masses’ by involving blacks in the wealth generation process.⁸³² This scheme has, by and large, been a failure. While in principle, its objective is to promote equality, which, in turn, will help build peace in the country, more than 15 years since the passing of the B-BBEE Act, and despite the country’s considerable wealth, SA has a gini coefficient of 0,69, one of the highest in the world.⁸³³ This failure is not because the Act has not been properly implemented; rather, it is because despite pronouncements to the contrary, its legislative provisions are not, in fact, concerned with the promotion of security, justice or reconciliation. The rhetoric of B-BBEE might claim that all SA are equal, but the detail of the law suggests that those select few who have the skills and connections to be appointed to the management boards of large corporations, are more equal than others. In a country with more than 27 per cent unemployment,⁸³⁴ what would have empowered the masses and allowed them to overcome the economic injustices of apartheid, is the creation of new jobs and the provision of proper training to the unemployed.⁸³⁵ Yet, B-BBEE did not create – and was not designed to create – any new jobs. Instead, it produced a tiny group of ‘black diamonds’, mega-rich black people sitting as directors or holding shares in multiple black or black-empowered companies, while doing nothing to address the injustices faced by the general public.⁸³⁶ As Tangri and Southall put it, it is difficult to see ‘how deals involving extremely wealthy and well-connected persons can possibly be called empowerment deals.’⁸³⁷ No matter how successfully the provisions of the Act are implemented therefore, their content will always make them unable to promote any of the elements of peace.

The BiH and SA statutes contrast with the equality legislation in NI, which both clearly articulates its peacebuilding objectives and includes provisions that when implemented, can successfully promote these. This is partly because the relevant provisions of the NI Act are the development of previous equality laws, the rationale and drafting of which, politicians have revisited over the years, in order to make more effective. The first attempt to promote equality was the passing of the NI Constitution Act 1973, which made it unlawful for public authorities to discriminate, or aid someone to discriminate, against another person on the grounds of religious belief or political opinion.⁸³⁸ This Act had done little to enhance security, justice or reconciliation among the population, as evidenced by the continuation of the violence until the

831 The scheme is not legally binding and as a result, companies that are not relying on government contracts, such as those in the tourism and retail industries, have not complied with it. (Tangri and Southall, ‘The Politics of Black Economic Empowerment’, 707.) Moreover, the Act’s provisions do not apply to smaller companies that are excluded from these obligations by automatically labelled as ‘Level Four Contributors’ with a B-BBEE recognition of 100% in order to allow their owners to focus on making them profitable (Department of Trade and Industry, Code of Good Practice 2013, Issued under Section 9 of the Broad-Based Black Economic Empowerment Act of 2003, No 36928 (Pretoria, Department of Trade and Industry, 2013), [4.1] and [4.2]).

832 African National Congress leader Saki Macozoma, quoted in Tangri and Southall, ‘The Politics of Black Economic Empowerment’, 714.

833 B-BBEE Commission, Strategy of the Broad-Based Black Economic Empowerment Commission, 2017-2021, 5. A gini-coefficient is an indicator of inequality within countries, with the lowest value being 0 and the highest 1.

834 South Africa Statistics Official Website, available at www.statssa.gov.za/?page_id=735&id=1.

835 Hoffman, ‘A Wolf in Sheep’s Clothing’, 103.

836 Ibid, 101.

837 Tangri and Southall, ‘The Politics of Black Economic Empowerment’, 709.

838 NI Constitution Act 1973, Art. 19(1).

end of the 1990s. Among its deficiencies was the fact that it was largely confined to direct discrimination in the religio-political context and therefore, only applied to a very limited number of cases.⁸³⁹

Since then, there has been a growing appreciation that what is needed to build peace in NI is the adoption of broader policies of equality.⁸⁴⁰ Thus, although the provisions of the 1973 Act have been included, almost unchanged, in the NI Act 1998,⁸⁴¹ they have also been substantially reinforced through the addition of legal duties that seek to mainstream equality. In particular, Section 75 of the 1998 Act has two broad objectives, both of which are clearly articulated and directly connect to peacebuilding efforts. Section 75(1) seeks to promote justice by creating an obligation on public authorities ‘to have due regard to the need to promote equality of opportunity’, and Section 75(2) enhances reconciliation through the duty to promote ‘good relations between persons of different religious belief, political opinion or racial group’. It is encouraging that over the years, there has been an increasingly nuanced understanding of how these duties connect to each other and to peacebuilding efforts more generally. While originally there existed an assumption that the promotion of equality of opportunity was almost synonymous to the promotion of good relations,⁸⁴² it has now been appreciated that the two might also contradict with each other.⁸⁴³ This insight, which suggests that sometimes, distinct measures will have to be adopted for the promotion of each objective, directly mirrors the mechanics of the proposed definition of peace.

Also important is the fact that the law has been drafted in such a way that, when implemented, its provisions can indeed contribute to these articulated objectives. Schedule 9, which includes detailed guidelines for the enforcement of Section 75, requires that all public bodies adopt equality schemes that explain, using timelines and numerical goals, how they will promote equality through their operations.⁸⁴⁴ The consultation procedure that should precede the drafting of each equality scheme, requires input from non-governmental organisations, such as community groups, pressure groups, and unions.⁸⁴⁵ It is, of course, not the case that the mere existence of the objectives under Section 75 and the clearly drafted procedure in Schedule 9, will in themselves help build peace. As the following section suggests, for that to happen, it is also necessary that the Equality Commission for Northern Ireland (ECNI or Commission), that has been tasked with reviewing the public bodies’ actions under Section 75, has, among others, the power to properly respond to cases of non-compliance with the Act.⁸⁴⁶ In this respect, the drafting of the 1998 Act can be improved further, since although Schedule 9 creates an obligation on public authorities to review their equality schemes within five years of their first

839 Christopher McCrudden, ‘Mainstreaming Equality in the Governance of Northern Ireland’ (1998-1999) 22 Fordham International Law Journal 1696, 1705.

840 Colin Harvey, ‘Contextualised Equality and the Politics of Legal Mobilisation: Affirmative Action in Northern Ireland’ (2012) 21 Social & Legal Studies 23, 27.

841 NI Act 1998, Section 76.

842 The inter-dependence of equality and good relations was articulated in the NI Programme of Government, quoted in Joanne Hughes and Caitlin Donnelly, ‘Community Relations in Northern Ireland: A Shift in Attitudes?’

(2003) 29 Journal of Ethnic and Migration Studies 643, 659, which states that ‘[t]he protection of human rights and the provision of equality are central to the Agreement. These policies are prerequisites for improving community relations and building community capacity, particularly in areas of greatest need.’

843 Roz Goldie, ‘Law and the Politics of Promoting Equality and Good Relations in the Northern Ireland Peace Process’ (ISSN 1750-9696) (Quest Proceedings of the Queen’s University Belfast AHSS Conference June 2008), 233.

844 NI Act, Schedule 9, Section 2.

845 Ibid, Schedule 9, Section 9(2); McCrudden, ‘Mainstreaming Equality’, 1771.

846 NI Act, Schedule 9, Section 1(a).

submission and inform ECNI of the outcome of this review,⁸⁴⁷ it is not clear what, if anything, the Commission must do with this information.⁸⁴⁸ By and large however, Section 75 has been drafted in such a way that when enforced, its peacebuilding contribution is likely to be a positive one.

IV. Looking Beyond the Wording of the Statute: Human Rights Bodies and their