• 優惠性差別待遇

          優惠性差別待遇是一種政府為了達到實質平等、保障弱勢所實施的政策，而這些弱勢往往是在過去的政策之下，被排除在正常教育管道、政治參與之外，甚至往往是被歧視的一群人。而優惠性差別待遇的目的就在於解決那些過去造成的不平等，達成現代民主憲法所保障的真實平等。但優惠性差別待遇畢竟是對於某些族群給予優惠，對於其他群體而言，必然有相對剝奪感，因此優惠性差別待遇的範圍究竟該如何、何時該結束？甚至是否有存在的必要，往往造成爭議。

 

 

 廣義黑人經濟振興法案 (Broad-based Black Economic Empowerment) (B-BBEE)

　　在結束種族隔離時代後，政治參與的權利全面的歸還給南非公民。雖然在政治上的權利已經平等，但種族隔離時期留下的疤痕依然深深影響著南非社會。最明顯的就是社經地位的問題。南非並不會因為廢除了種族隔離制度或是政權更迭，就讓社會大眾的經濟地位瞬間平等，或是讓貧富差距瞬間消失，為了解決這個問題，因而有了相關的法案。

　　在白人政府主政末期，白人政府提出了黑人經濟振興法案(Black Econmic Empowerment)(BEE)，以評定BEE點數的方式強制規定公司給予黑人持有股份比例的方式，力求讓黑人在企業中的影響力擴大，進而解決黑白族群的社經地位問題。然而僅僅規定黑人持股比例，真正受惠的僅有少數的中產階級黑人，甚至於符合BEE要求的企業可以利用轉包的方式移轉利益給其他外國或白人公司，真正需要被幫助的一群依然躺在社會底層無法實質獲得幫助。

　　南非政府在發現這樣的問題之後，以BEE法案為基礎，訂立了廣義黑人經濟振興法案(Broad-based Black Economic Empowerment)(B-BBEE)將原先BEE點數的評定方式大幅擴張至股權、管理控制、平等就業、技術發展、定向採購、企業發展、企業的社會責任七大面向，力求實質解決社會黑白族群貧富差距和社經地位差異的問題。同時B-BBEE也將「黑人」的定義擴張到非洲裔、印度裔、有色人種；並且擴張保障範圍至婦女、工人、青年、殘障人士與居住在農村地區的人群。

　　但B-BBEE在南非社會亦造成了巨大的反對聲浪，其主因就如多數的優惠性差別待遇一樣，其他族群(尤其是白人)認為這樣的法案是一種變相歧視，因為公司或是政府部門為了符合B-BBEE的規定，通常會優先以「膚色」做為選用標準，而非以能力判定。換言之，就如同在剝奪白人的就業或其他權利。除此之外，由於黑人的教育水準與專業能力普遍不足，在必須優先選用黑人的前提下，部分的黑人無法勝任他所擁有的職位，進而影響政府或企業的效能。為了解決這個問題，南非政府在政府採購或相關案件中，以市價的1.5倍向企業簽約，其中多出來的50%即是提供給企業做為員工訓練之用；但專業能力的訓練並非一蹴可幾，因此這個問題依然是政府與企業必須努力的方向之一。

　　對於B-BBEE，前南非憲法法庭大法官Albie sachs曾說，「優惠性差別待遇、反歧視法案和和解在南非並非一個選項，而是必然的過程。」而南非憲法亦明文授權這樣的法案規定，如第9條的1至3項即明文規定國家必須給予人民平等保障；為了追求實質平等國家可以給予一定程度的優惠性差別待遇，並且禁止一切的歧視行為。

 

 

 

 

 

• 轉型正義：真相與和解調查委員會 (Truth and Reconciliation Commission)(TRC)

　　轉型正義是指，一個國家在歷經民主轉型的過程後，對於過去獨裁政府嚴重侵犯人權的惡行予以追訴和究責，

 

          In South African case, the most important step on transitional justice is the Truth and Reconciliation Commission (TRC), which is head by Archbishop Tutu with aim to address abuses committed during the apartheid era. The commission is established under the interim constitution negotiated in 1993, which provided a specific provision for amnesty for all combatants involved in political violence, and one of its functions is to fulfill the constitutional obligation to grant amnesty. Witnesses who were identified as victims of gross human rights violations were invited to give statements about their experiences, and some were selected for public hearings. Perpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution. The mandate of the commission was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as reparation and rehabilitation. Here comes an interesting question that unlike transitional justice in other society where prosecution is more mentioned but rather granting amnesty, why granting amnesty is that focused in the context of South Africa? Constitutional Judge Albie Sachs once commented that the primary responsibility of the state is not for prosecution, but rather for some form of accountability, which is what the TRC pursued through its amnesty hearings. He reasons that “[p]rosecution and sending people to jail is not a principle, it is a mechanism for accountability. In addition to Judge Sachs, Archbishop Tutu’s understanding of the concept of Ubuntu seems also provide a good explanation. Ubuntu is a concept in Bantu languages, which is the essence of being a person, and means that people are people through other people. People are made for interdependence. “[I]ndeed, my humanity is caught up in your humanity, and when your humanity is enhanced mine is enhanced as well. Likewise, when you are dehumanized, inexorably, I am dehumanized as well. As an individual, when you have Ubuntu, you embrace others.”[2] The humanity in Tutu’s understandings on Ubuntu seems to characterize the necessity of political forgiveness in South Africa after the end of Apartheid.

 

• Contemporary Human Rights

            Human Rights, defined by United Nations, are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. These rights are all interrelated, interdependent and indivisible.
            The concept of Contemporary Human Rights was first enlightened in the 18th century as American the Declaration of Independence was announced in 1776, and the French Declaration of the Rights of Man and of the Citizen in 1789. It was the first time that people were not confined by the power of a state, but rather realized that the fundamental rights are naturally gifted.

            After World War II ended, the protection of human rights became a universal common value. As in the preamble of the Charters of the United Nations, 1945, “We, the peoples of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” The Universal Declaration of Human Rights, 1948, emphasized protection of the individual human rights. Moreover, in 1966, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights detailed the protection of human rights. Together, the Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights were called International Bill of Human Rights, and are the important principles of human rights protection in the modern day.

            The followings are the three contemporary human rights issues that we are interested in, especially in the South Africa context:  

 

The Abolishment of Death Penalty

           Albie Sachs said, “When killing the killer we aren't punishing the crime but repeating it.” when visiting Taiwan. (2015)

Rights to Life is protected in International Covenant on Civil and Political Rights, 1966, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Though International Covenant on Civil and Political Rights, United Nations and other international organizations calls for the abolishment of death penalty, it has remained as a controversial issue. Amnesty International criticized death penalty for the following reasons: denial of human rights, not irreversible and mistakes happen, does not deter crime, often used within skewed justice systems, discriminatory, and used as a political tool.
            South Africa plays a leading role of abolish death penalty. In the S v Makwanyane, The Constitutional Court of South Africa invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty. The death penalty has been abolished in South Africa since then.

 

Same-sex Marriage

            Justice Albie Sachs, “The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.” (Minister of Home Affairs v. Fourie, 2005; Paragraph 71 of the judgment)

According to the South Africa Constitutional Law, Section 9, “Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

Depriving homosexuals of the right to legally marry means more than simply with holding legal privilege. They are denied that seal on love, that recognition of equality and inclusion in the mainstream of community and history that heterosexuals automatically enjoy. Relationships are always difficult to maintain over a long periods of time. Prohibiting same-sex marriage deprives a couple of the stability. To deprive same-sex couple of marriage, not only discriminate them, but also affects people, especially children and aging, dependent on them. Discrimination against same-sex marriage is, first and foremost, a violation of their civil rights.[3]     

In the case Minister of Home Affairs v. Fourie (2005), Constitutional Court of South Africa made a decision that the same-sex spouses are included in the definition of marriage in common law based on the Constitutional Law section 9.        

 

HIV/AIDS

           According to the United Nations Office for the High Commission of Human Rights, “More than thirty years after the first clinical evidence of acquired immunodeficiency syndrome was reported, AIDS has become one of the most devastating diseases humankind has ever faced. Since the epidemic began, more than 60 million people have been infected with the virus and nearly 30 million people have died of HIV-related causes. AIDS has become the sixth-largest cause of death worldwide.” [4]

What do AIDs/HIV have to do with the AIDs/ HIV? “Human rights are inextricably linked with the spread and impact of HIV on individuals and communities around the world? A lack of respect for human rights fuels the spread and exacerbates the impact of the disease, while at the same time HIV undermines progress in the realization of human rights.”[5]

            "I would have hoped...that we would invoke the same spirit, the same passion, the same commitment to fight this pandemic as we had when we were fighting against the scourge of apartheid," said Archbishop Tutu, 2002. Furthermore, Archbishop Desmond Tutu has called for homosexuality to be decriminalized to help tackle HIV.