Non Governmental Organisations' input

Meeting report

AD HOC COMMITTEE ON REVIEW OF STATE INSTITUTIONS THAT SUPPORT CONSTITUTIONAL DEMOCRACY
7 March 2007
NON GOVERNMENTAL ORGANISATIONS INPUT

Chairperson: Prof K Asmal (ANC)

Documents handed out:
Tutumike Submission
State of the National Gender Machinery: Structural Problems & Personalised Politics [Chapter 6 of State of the Nation]
Foundation for Human Rights submission
Human Sciences Research Council submission

Audio Recording of the Meeting

SUMMARY
The Committee received presentations from the refugee rights organisation Tutumike, Prof Amanda Gouws of the University of Stellenbosch, the Foundation for Human Rights as well as the Human Sciences Research Council. The organisations had been requested to make submissions on the Commission on Gender Equality specifically. Issues such as the merger of the gender equality and human rights commissions, the rights of refugees, the national gender machinery and the relationship between gender activism and feminism were discussed. Although the form of the cooperation between civil society and the Chapter Nine bodies could not be agreed upon, everyone agreed that such cooperation was needed.

MINUTES
Prof Asmal’s opening remarks
Prof Asmal informed the Committee that it had received a very long submission from the Minister in the Presidency, Minister Essop Pahad, about arrangements about the National Youth Commission (NYC) which he would circulate.

He also pointed out that the NYC had recently had a three-day lekgotla where with reference to the NYC meeting with the Committee, they had said that that youth development was a serious matter which "should not any stage be reduced to theatrical gestures to excite spectators." Prof Asmal said that he had not been aware that the Committee was in the Coliseum and was trying to excite anyone. He also noted that the phrase ‘theatrical gestures’ was borrowed from someone else who had spoken in Parliament the previous week, and said that he could therefore not even accuse the NYC of originality in their assessment of the Committee’s work.

He assured the non government organizations (NGOs) present that there would be no theatrical gestures in that day’s interactions. Although the Constitution allowed all kinds of responses to the human condition, excitability was not one of the aspects that governed the Committee’s work. The Committee would discuss both the letter from the Minister and the comments by the NYC in their deliberations after the meeting with the SAHRC.

The purpose of the second session with NGOs was, according to the terms of reference, to consider the submission made by the Commission on Gender Equality (CGE). The Committee would that day try to determine what happened on the ground, based on the NGOs’ submissions.

Tutumike Submission
Ms Tyl Schreier, a refugee lawyer at the University of Cape Town Law Clinic’s Refugee Rights Project and Ms Vicky Igglesden, an independent researcher focusing on refugee issues within South Africa, and an advocacy worker for Tutumike made the submission. Ms Schreier explained that Tutumike was a network of refugee service providers within the Western Cape that was committed to the protection, promotion and realisation of the rights of refugees and asylum seekers. The submission focused on the South African Human Rights Commission (SAHRC), which was the institution that it had a primary relationship with because of their joint concern – the protection of vulnerable groups in South Africa.

Ms Igglesden summarised the submission, which addressed matters on the constitutional and legal mandates of the SAHRC, the SAHRC’s contribution to democracy, the negative impact the rationalisation of the Commission’s functions would have, the cooperation between the Commission, government and civil society as well as why a more structured oversight role by Parliament was not advisable.

Ms Schreier explained that the UCT Law Centre had been running the refugee programme for almost ten years. It gave free legal advice to refugees and asylum seekers and aimed to assist them as they navigate through the refugee and asylum process. The programme also had a mandate to educate and to promote refugee rights. It was a United Nations High Commissioner for Refugees (UNHCR) implementing partner and was one of the founding members of the National Consortium for Refugee Affairs (NCRA) and Tutumike.

Ms Schreier explained that the programme at times referred clients to the SAHRC, and vice versa. Coinciding with the increased violence against Somalian refugees in the past year, the SAHRC held a series of workshops on rights based issues and invited the UCT Law Clinic to present a workshop on refugees, xenophobia and violations of refugee rights. Following last year’s attacks on Somali refugees at Masiphumelele, the SAHRC set up a task team to investigate the issues. The task team had comprised various stakeholders including the South African Police Service (SAPS), the Department of Home Affairs (DHA), service providers, local government and various entities from refugee communities. In her opinion the SAHRC could play a relevant role in facilitating discussions on these issues.

The Law Clinic had recently been invited to another stakeholder meeting and had been excited to learn that the SAHRC would be having hearings on crime and human rights and that these hearings would feature xenophobia too. The Law Clinic was also involved in a workshop aimed at redrafting the Refugees Act (1998). The SAHRC took part in that workshop as well. Because of their limited resources and capacity, the programme had the "idealistic" desire that an entity like the SAHRC should take the lead in the area of xenophobia instead of the playing an ad hoc role as had largely been the case up until now.

Ms Schreier put great emphasis on the fact that the criticism of the SAHRC was public knowledge. The SAHRC itself was the first to admit that due to their own institutional problems and lack of capacity, they had been less than effective in following through on their own recommendations.

She added that they had been pleased to learn that the SAHRC had recently appointed four new programme coordinators at national level. The national programme coordinator on non-nationals was the former head of the NCRA and they had a good relationship with her.

They had come to the conclusion that the SAHRC had operated in a manner that could be described as ad hoc, but felt that with the appointment of the new CEO and coordinators, the institution’s work would be more focused. The real challenge was how the SAHRC could be strengthened. In the programme’s interactions with the SAHRC, they had learnt that it valued and placed emphasis on civil society’s role. Civil society organisations also knew that "government was still somewhat wary" in dealing with them. She felt that the SAHRC could thus play a role in bridging the gap and "helping civil society to have a voice."

Ms Igglesden said that she was part of Premier Rasool’s initiative to respond to Masiphumelele. Given that the Premier had set up the initiative the SAHRC had decided not to pursue it. While the programme applauded the Premier’s initiative, they felt that it had suffered because it was not rooted in a human rights institution.

The SAHRC should undertake a comprehensive enquiry into xenophobia at all levels of society, with particular focus at institutional level, national and provincial departments, local government functions as well as health and education facilities where the persistence of xenophobia gave credibility to inter-group prejudice at the grassroots level. They urged that a body with the authority the SAHRC undoubtedly had, be mandated to increase its focus on vital issue of prejudice and abuse of foreigners, particular those from elsewhere on the continent.

Discussion
Prof Asmal was surprised that, in the light of the terms of reference requirement that there be coordination between Chapter 9 and associated bodies, the submission had totally excluded bodies such as the NYC and the CGE. Women were the most vulnerable people amongst economic or political refugees - many of whom, in his experience, were very young.

Ms Igglesden responded that Tutumike had considered including the other organisations but felt that since their interaction had overwhelmingly been with the SAHRC they should focus on them. She added that it was very difficult to get strong engagement with other bodies. Government institutions were not open to including refugee-related issues. Institutions often said that they dealt with nationals only.

Prof Asmal wondered whether the organisations took such responses lying down. He pointed out that apart from voting, the Constitution was accessible to every person.

Ms Igglesden responded that the organisation did not have the time, money, personnel or expertise to challenge such responses. The organisation was struggling just putting in place practical provisions. Advocacy in these areas was also spread very thin.

Prof Asmal realised that civil society organisations were impatient with parliamentary oversight. The terms of reference required the Committee to consider how effectively Parliament was performing its oversight function. He felt that the submission had misunderstood what was meant by parliamentary oversight, which he explained referred to accountability in broad terms. The Constitution was very clear - Parliament had to uphold the dignity of the organisations and had to support them. Commenting on the fact that there had been almost no mention of the killing of more than 20 Somali refugees in the last six months, he said that he would have thought that greater debate on these matters by Parliament would have been helpful. He also noted that almost none of the submissions had made mention of the Equality legislation.

Ms Igglesden accepted that they had misunderstood Parliament’s oversight role and agreed that more informed debate, also outside of Parliament, was needed.

Prof Asmal said that the extent to which an issue was debated was related to the opportunity people had to debate it. He could not recall that there had ever been a debate on the refugee legislation or on the general state of affairs for refugees. There had been an abstract discussion on xenophobia.

Ms D Smuts (DA) wondered how South Africa’s notoriously porous borders impacted on the organisation’s work. She said that many of the people that crossed these borders were economic refugees or "job seekers", and that one could not put a number on the figure of such refugees because they were illegal immigrants. She wondered to what degree the work for genuine refugees was "bedevilled" by the prevalence of these illegal refugees.

Mr J van der Merwe (IFP) requested that the presenters take some time to comment on the obligations South Africa had to accommodate asylum seekers and refugees. He wondered what South Africa’s duty was in this regard: should it simply accept these large numbers of people who come to South Africa and take work from South Africans.

Ms C Johnson (ANC) said that there had been a court judgment, which held that social assistance was not limited to citizens only, but also benefited other residents. She wondered whether the organisation reported violations of this legal requirement to the SAHRC.

Prof Asmal pointed out that the provision applied to permanent residents regardless of their status.

Ms Smuts said that the expression "every person" was expressly used in the Bill of Rights and wondered whether that was interpreted as meaning "permanent resident".

Ms Schreier reminded the Committee that South Africa had in 1995 and 1996, signed international conventions to uphold the rights or refugees and asylum seekers in the Republic. They were also signatories to the 1951 United Nations Convention on the rights of refugees and the 1969 Organisation for African Unity (OAU) Convention Governing Specific Aspects of Refugee Problems in Africa. South Africa’s legal obligations thus stem from these international treaties, the Refugees Act, which was passed in 1998, and the Constitution, which provided for the protection of every person to a certain extent. While some of the provisions applied to citizens only, others applied to all persons within the country. Non-recognised refugees or illegal foreigners had the same right to be free of human rights abuses such as in the deportation process.

She acknowledged the impact of porous borders and admitted that it was a challenge for refugee advocates to discern which cases were genuine and which were not. It was also a challenge for the DHA to deal with the large numbers of people applying for asylum seeker status. There were provisions within the asylum process that were aimed at fast tracking those people that did not qualify for refugee status out of the system. She reiterated that by virtue of the Constitution, all individuals who applied for asylum, as well as the ones who did not, had certain rights.

Prof Asmal said that South Africa deported hundreds of thousands of people every year.

Ms Schreier responded that there were only about 35 000 recognised refugees in South Africa.

Prof Asmal thought it very important that the organisations worked with the SAHRC and asked for greater clarity around the referrals the SAHRC made to them.

Ms Schreier responded that the referrals were around basic issues. There was very little information for the refugees in the public domain. If a refugee felt aggrieved by service at the DHA for instance they might lodge a complaint with the SAHRC who might refer clients to the law clinic should they need legal assistance.

Prof Asmal wondered whether they had ever approached the Office of the Public Protector (OPP) in cases where there was an inordinate delay in the getting refugee status.

Ms Schreier responded that the UCT Law Clinic had not engaged with the OPP on the issue. The clinic tended to resort to litigation to hold the Government to task. If a court decision allowed a recognised refugee to get social security and the Government did not amend their legislation in order to grant these services, they litigated.

Dr D Delport (DA) noted that submission was critical of the situation in South Africa, of the government’s as well as institutions’ roles and spoke of community conflicts. It constantly referred to asylum seekers and refugees. He said that communities felt that they there was a vast number of foreigners who were in the country illegally; the 35 000 recognised refugees were not the problem. He felt that the submission, with its focus on the legal refugees, and its silence on the vast numbers of illegal immigrants and the challenges they posed created the wrong impression. The 35 000 recognised refugees were not the problem.

Ms Schreier responded that since 1994 there had been about 240 000 asylum seekers who had made applications to the DHA Refugee Affairs section. About 80 000 of applications were rejected and the rest were "sitting in a massive backlog." She said that there were many different estimates for the numbers of foreigners in the country.

Ms Igglesdon added that all the Somalis were genuine asylum seekers or refugees, and the attacks on them posed a serious problem.

Mr S Dithebe (ANC) noted that the submission indicated that there was lack of political will to address the concerns about refugees. He wondered how, considering South Africa’s activities on the rest of the continent, this opinion could be justified.

Ms Schreier had difficulty understanding the question. Prof Asmal explained that the question was complex and philosophical. The South Africa government was involved in peace keeping and peace making efforts across the continent. Mr Dithebe’s question was related to how one could then criticise them for being indifferent to people who came from these regions.

Ms Schreier felt it important to also consider the rights abuses that were visited upon refugees, asylum seekers and even undocumented migrants within the borders of South Africa. She added that the whole system of refugee protection was still at a very nascent stage in the country. Borders only opened in 1993 when South Africa signed the United Nations agreement to accept refugees. The system protecting these "special migrants with special rights" was still very new.

Ms J Matsomela (ANC) wondered how many of the cases the organisation dealt with, were not genuine.

Ms Schreier responded that, because it was a free legal service provider that gave free advice to all refugees and asylum seekers, it was very difficult for the law project to determine which cases were genuine and which were not. They were concerned about procedural rights and wanted to make sure that anyone who applied for asylum had access to the system. The statistics on the number of false cases could probably be sourced from the DHA.

Mr van der Merwe said that senior SAPS officials had informed him that there were literally millions and millions of foreigners, mainly from Africa within South Africa’s borders. These illegals posed a serious challenge to South Africa in terms of job security and way of life.

Ms Schreier responded that her organisation acknowledged that there was a mixed flow of people coming through South Africa’s porous borders. They realised that it posed a challenge to the DHA as well. She conceded that there might also be those who abused the system. She emphasised that every person within the borders of South Africa had rights. The clinic did not want to encourage the swift deportation of individuals who might have genuine refugee claims and might not be able to return to their countries for fear of their lives or freedom. There were certain human rights and basic procedures that needed to be observed and respected.

Prof Asmal said that the SAHRC dealt with xenophobia as well. He had a personal interest in the matter. In 1998 he had succeeded in putting a stop to the deportation of children from Northern KwaZulu Natal. The Constitution said that every child had a right to education. In addition it was illegal to deport people without a court order. The Constitution protected everyone within South Africa. He said that South Africa would either be a rules based society that was constitutionally ordained or, or it would not be, though he did not feel that there was a choice to be made. Former President Nelson Mandela had also had great difficulty in convincing the DHA to grant illegal aliens amnesty. In 1994 SAPS had spoken of there being about 12 million refugees, illegal or not, within the country.

State of the National Gender Machinery: Structural Problems and Personalised Politics
Prof Amanda Gouws, a political scientist from the Stellenbosch University and trained in gender studies presented her submission which was a chapter from the HSRC’s State of the Nation: South Africa 2005-2006 publication entitled, The State of the National Gender Machinery: Structural Problems and Personalised Politics. Her research had been in the area of women and citizenship, and formed part of a research project on the National Gender Machinery (NGM) in South Africa. She was also one of the people who had made submissions right in 1994/5 when the decision on how the NGM would look like was made and had also favoured the broad integrated set of structures. Her knowledge of the NGM and the CGE had been garnered over a long period of time with them as a consultant. The submission she would make to the Committee came from the State of the Nation that was published by the HSRC on an annual basis. The research drew on interviews but also on the work of other researchers. They had separately come to similar conclusions about the NGM and the CGE.

Discussion
Prof Asmal asked whether all political parties had now accepted that there should be 50/50 representation of women and men on their lists.

Prof Gouws explained that in the last local government elections the ANC had had 50/50 representation of women on their list.

Prof Asmal wondered if she could give the figures for how many complaints the CGE had dealt with in 2005/6.

Prof Gouws responded that the CGE received 2 137 complaints in 2003/4 and for the most part had dealt with these quite successfully. At the time of her research those had been the latest figures. She had not looked at the most recent figures. The CGE generally dealt with about 1 800 to 2 000 complaints per year.

Prof Asmal said that she would not have been able to have access to the latest figures in any case because there were none. The CGE had published the figures per province and these averaged at about 40 per year per province. In 2005/6 there had been no general report.
Prof Asmal thought it necessary to make a few corrections to the submission. On page 144 Prof Gouws had referred to the Joint Monitoring Committee on the Improvement of the Quality of Life and the Status of Women as a government standing committee. He pointed out that that committee was in fact a parliamentary committee, which was quite different from a government committee.

On page 151 the submission spoke of the CGE having 12 commissioners. He pointed out that by 2004, 4 of the commissioners had resigned and since May 2006 there had effectively been no commission.

Prof Gouws responded that by June/July of 2006, commissioners had been nominated.

Prof Asmal said that the submission made a list of the successes the CGE had, but it surprisingly made no evaluation of those successes. Parliament needed to know what the deliverables, by reference to the programme of action, there had been.

Prof Gouws referred the Committee to work of Janet Cherry who had done that specific kind of evaluation for the HSRC. She looked at their activity over five years and evaluated them quite positively. She had also found the same areas of concern that Prof Gouws had found.

Prof Asmal noted that there was much activity happening within the NGM. He did not think that ‘machinery’ was the "most pleasant word to use". In 2000/1 there was a division within the CGE between the feminist view of dealing with patriarchy and that of addressing the triple oppression of black women. This was a fundamental divergence. He asked why there had been a disruption if people were genuinely focussed on the task at hand.

Prof Gouws explained that the phrase "national gender machinery" was an internationally recognised phrase, created by the United Nations and appeared in all such literature. She agreed that it was a very masculine word. She felt that one should consider the significance of why certain commissioners had either resigned or asked that their contracts not be renewed. In her opinion this spoke directly to the issue of what the focus of the CGE’s work was. It was very difficult to determine what the focus of the CGE’s work was.

She explained that those commissioners who had considered themselves feminists did not necessarily pit themselves against those who wanted to address the triple oppression. One could not just have a western feminist import drawing on the theories developed in Europe and northern America but had to consider the relevance of feminism in a developing country. Triple oppression only referred to the fact that women had different identities and that one had to develop feminist theories around the intersections of these different identities. She said that for those commissioners who had tried to do that and who had the long-term strategic vision, it became problematic because they felt themselves in a minority and felt that they were being sidelined and that their voices were not being heard.

She said that the notion that feminism and gender issues were divorced from each other was fallacious. Feminism encompassed gender issues with specific focus on women. Part of the problem had been that it was felt that masculinity programmes took the focus away from women, while the positions and conditions of women had not improved that much.

Prof Asmal wondered whether the two positions were incompatible. Most of the black women he knew fought against patriarchy, which was a central issue in the feminist movement. The relationship between the traditional law and Constitution and the Bill of Rights, which he thought had not been dealt with very well, was posited on the opposition to patriarchy. The debate on who should own and be allocated land in the amendment to the Constitution was about patriarchy. He wondered why the submission then gave the impression that the two positions were mutually exclusive and that people resigned over it when they could have stayed on and helped each other.

Prof Gouws responded that the situation became untenable in the CGE between those who saw patriarchy and the transformation of the society as the goal and those who had short-term projects focussed on the alleviation of short-term conditions. She reiterated that gender and feminism were not mutually exclusive and pointed out that in practice feminism was sometimes perceived as a philosophy that could not be implemented in a developing country. She did not agree with the reasoning.

Ms Smuts felt that if one did not understand the theology of the thinking, they would not understand each other’s terminology. She noted that the submission reflected that many of the structures were typical of western European social democracies and wondered whether it would be accurate to say that they were typically social democratic in their outlook. A liberal set-up would enable people to claim and enforce their rights. She felt that that was the function of the CGE. It appeared as though it could not be an independent body as long as it "clanked around" with the NGM. She wondered whether what Prof Gouws described as an ad hoc approach was not simply, the idea that one enforced ones rights and that the CGE would assist people in doing that. She pointed out that the SAHRC already did that and wondered why the CGE should then pursue "some greater and evermore theoretical vision" when its job was similar to that of the SAHRC.

Prof Gouws explained that the NGM was not that European or American. South Africa probably had one of the most integrated set of structures. Most countries had either a commission or an Office on the Status of Women (OSW). At the time of the NGM’s inception, they had believed that if one had structures at the different levels of the state, one would be able to facilitate gender mainstreaming which was the discourse within Government, and was the policy designed by the OSW. The National gender policy said that gender would be mainstreamed in legislation and policies. To do that one needed different oversight bodies in different places. The CGE was supposed to be an independent body, and should therefore have had a better oversight and monitoring capacity.

She tried to explain why the CGE sometimes played an ad hoc role. Very often it was presented with a complaint or a problem that it dealt with on the spot. It gave relief or justice to the complainant, but the expectation was that even if its actions were ad hoc, it would have a view that would in the long run make a contribution to the transformation of conditions for women. She agreed with Prof Asmal that one could do both. Very often the Commission failed to take a stand in cases where there was a very clear violation of rights, or abuse, which of course created a specific impression.

Ms Matsomela noted that in the concluding remarks, Prof Gouws indicated that the CGE, while exercising its mandate was undermined by the dual burden of representing and mobilising women. She wondered whether everyone who was in the process of democratising South Africa did not carry this burden.

Prof Gouws agreed that that might be a challenge that most organisations were faced with. Ironically that had not been a challenge for the National Women’s Coalition who mobilised women on a very large scale in 1992-4. It was a spontaneous mobilisation that came from the women’s sector and culminated in the drafting of the Women’s Charter. The demobilisation and fragmentation followed.

The mandate of the CGE and the entire NGM was to develop policies and projects aimed at addressing and alleviating gender inequality, and not to mobilise women. Mobilisation was the role of women’s organisations etc. One could not expect the government to mobilise, and develop policies at the same time. It was too much of a burden.

Ms Johnson said that some of the submissions received argued that because human rights were indivisible and interrelated, the CGE and the SAHRC should merge. It was felt that because the SAHRC had a bigger budget, had wider powers and dealt with human rights, sent the message that gender equality was not as important is human rights.

Prof Gouws responded that she was opposed to the merger of the CGE with the SAHRC. She felt that such a merger would dilute the focus on gender equality. While she agreed that human rights were indivisible, she pointed out that the two commissions had different foci. In other countries where there was no specific commission to deal with gender equality, it became dispersed and was dealt with in a much broader way, not really addressing the power relations within structures and institutions.

She recommended that the CGE should address some of its problems, become more streamlined and that it should perhaps function with fewer commissioners. It should perhaps then have better focus and better strategies with regard to addressing issues related to gender equality.

Mr Dithebe asked whether given the challenges the CGE had been confronted with, it had not been strong enough to ensure the implementation of the National Gender Policy framework (NGPF).

Prof Gouws said that the CGE had never been mandated to implement the NGPF. The OWS was mandated to do so. It was supposed to disperse the policy to gender focal points or gender desks across provincial and national departments. The appointment of very junior people who had no experience of gender analysis to the desks and the lumping together of the desks with other portfolios hampered gender mainstreaming. She felt that although on paper the document was very thorough, it was not being implemented. The OSW was too small and thus could not effectively do oversight over the desks, which were expected to implement the policy.

Prof Asmal said that the Committee would engage with the OSW. The Committee had not been able to discuss the Women’s Empowerment Unit or the Gender Focal Points. It looked at academic research for some of the information it needed. He added that there was a huge difference between merging bodies and locating one in the other. The Committee would approach the matters raised with open minds. The Committee had invited the JMC. The women’s caucus in Parliament became visible only sporadically. The first of the Committee’s terms of reference was to consider assessing the current legal mandates of the institutions. The Equality legislation was a core element of the CGE and increased their powers, yet the submissions did not really mention it.

The Budget for the CGE had increased considerably. The Committee would discuss that since Commissioners were paid very well, there should be an open exit interview. One would then be able to evaluate whether reappointing them would be feasible, as well as doing some of the "fire brigade work".

Prof Gouws said that for the researchers involved in the type of research she did, access to the structures was very difficult. They did not want to grant access, did not return phone calls, and did not want to engage within academic researchers. Those who were critical, got into much trouble.

Prof Asmal said that the freedom of information legalisation would also feature in the discussion to be had with the SAHRC that Friday.

Mr van der Merwe felt that Prof Gouws' point should be noted for further discussion.

Prof Asmal felt that research should be a joint rather than a unilateral activity. The HSRC was paid an enormous amount of money, when they could be doing research with academics. Doing research with the latter, while one might not always agree with their views, might be more creative.

Foundation for Human Rights
Mr Hanif Vally and Mr Andile Mngxitama represented the organisation, which funded human rights projects in all the provinces. The submission addressed issues related to the OPP, the SAHRC and the CGE because the organisation interacted mainly with these bodies. The presentation considered the legislative frameworks, structures, independence, mandates, and power of these three bodies. It also went into great detail around the relationships these bodies had with civil society and Parliament. The FHR’s recommendations included:
- that all bodies adopted a rights based approach,
- that a national consultative conference at which civil society was present was held three times a year,
- that civil society play a role in the appointment of commissioners and
- that the CGE should not be merged with the SAHRC.

Discussion
Prof Asmal said that it was broadly accepted that Parliament should be in charge of the budget allocation. The Committee would like recommendations as to how Parliament should go about performing this task.

Mr Vally responded that although the modalities were not spelt out in great detail in the submission, the FHR felt that a similar modality to the one followed in the case of the Independent Electoral Commission (IEC), which Parliament funded, should be adopted.

Prof Asmal pointed out that the IEC negotiated its budget with the National Treasury. The Department of Home Affairs had nothing to do with the process. The DHA micro managed the Electoral Commission. He added there was no institution such as the IEC in the Constitution or in the law. The correct title was the Electoral Commission. He added that if the FHR had any suggestions as far as the modalities for Parliament’s role in the budgetary process was concerned, they could send it in writing.

Responding to the submission’s claim that government departments failed to submit reports to organisations such as the SAHRC, despite this being a constitutional responsibility, Prof Asmal wondered whether this statement applied to all or some departments.

Mr Vally responded that some did not respond because many of them were overwhelmed by the amount of paperwork they had to get through. Their report made reference to the SAHRC Socio Economic Reports which indicated the departments that failed to respond.

Prof Asmal said that he had thought it necessary that since the interaction was being tape recorded, any statements should be specific: saying that government departments did not respond was quite different from saying that the report indicated which government departments failed to respond to institutions.

Referring to the statement that some civil organisations doubted the bodies’ independence, Prof Asmal again warned against sweeping statements. The Committee was evaluating eleven out of 29 bodies. The Committee wanted some sort of empirical research that would assist them. He said that often a perception was nothing more than a prejudice.

Mr Mngxitama replied that he was referring to the OPP, the SAHRC as well as the CGE.

Prof Asmal said that the bodies were independent and all state organs had to support their independence. Parliament could thus not micro manage them and tell them to engage with civil society. The FHR had said that they felt that the constitutional provision could remain intact. If they raised questions around the oversight, then the provisions might have to be reconsidered.

The submission stated that the institutions did not exercise the power to litigate. Prof Asmal felt that credit should be given to the CGE who had been amicus curae in a whole range of cases. He said that generalisations were not very helpful to the Committee.

Prof Asmal said that the submission’s suggestion that the bodies be proactive had limitations. The OPP for instance could not be proactive because it received complaints. The presentation only looked at three bodies, while the Committee was reviewing eleven bodies that varied a great deal. The Committee would consider the submission carefully.

Mr Vally said that the Public Protector had asked the FHR the same question at a seminar. He explained that there was no reason why, if certain issues were raised in the media, the OPP could not take them up, despite complaints not having been made.

Prof Asmal said that there had to be a proper exchange with NGOs. The submission was written in December 2006 when there was no commission, and yet it made reference to the commissioners etc. If Parliament was to have a better relationship with civil society there should be a greater degree of "exactitude" in their interactions.

He continued saying that the claim that the public spat between the first CEO and the Commission led to the eventual resignation after a succession of court cases was incorrect. The court cases came afterwards. The first CEO left to take up the post of assistant secretary general of the ANC. Prof Asmal said that while he had not had the time to go through the document, he felt that inaccurate statements should not be made in a document that appeared before the Committee.

Mr Vally apologised for the misrepresentation and said that there was considerable confusion around the CGE and its commissioners. He said that a report commissioned by the CGE itself, gave an extensive outline of the future role the CGE could play.

He commented that much of the submission depended upon research other people had done. There was no clear indication of the extent of interaction with civil society.

Mr van der Merwe noted that while the document was very extensive, it said very little about the organisation and its work. He advised that when government departments refused to respond to requests for information, they should be reported to the OPP as he had done.

Mr Vally said that the SAHRC itself in its report had complained about particular departments not responding to their requests. It would be uncomfortable for them to complain to the OPP.

Prof Asmal pointed out that they had powers of subpoena.

Mr Vally proceeded to quote paragraph 88 of the submission that gave details of the departments and parastatals, which failed to respond to requests by the SAHRC.

Prof Asmal said that many of the bodies were not aware of the powers they had. He reiterated that the institutions, like portfolio committees, had powers of subpoena.

Mr Vally believed that in some instances a person could be subpoenaed, but whether they would produce the report, as per the constitutional requirement was a different matter. He felt that one could not disregard the State Liability Act which made it difficult to censure government departments or ministers. The State Liability Act undermined a leg of the democracy, the enforcement leg.

Prof Asmal said that he could attest that government departments received an enormous amount of requests, which before 1994 had not been the case. Writing a letter was thus not enough. If one were to subpoena a national director general, for instance, amidst full media coverage, one would get a particular message across. The publicity that accompanied a Scorpion raid for example was "the most intimidating thing of all". He advised that one could not only seek recourse through the law. Conceptually it was very difficult to give bodies the power to give directions. They had already been given political power through the power to subpoena.

Mr Vally did not think that one could equate requests for information from a government department with the constitutional imperative. The Constitution mandated the SAHRC to report on the state of socio economic rights in various departments, and the departments should subscribe to it.

Prof Asmal said that one of the purposes of the Committee was to raise consciousness around the constitutional imperative. Such awareness was not self-evident. Requests were seen as simply that, requests for information. He was merely pointing out how things worked because he was sure that civil society wanted to know what happened in practice too.

Mr Vally responded that South Africans had agreed that they wanted to be governed by the Constitution. Parliamentarians and Ministers also had to obey the Constitution.

Prof Asmal said that Section 184(3) provided that the SAHRC each year require relevant organs of state to provide it with information on the measures they had taken as far as the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. The imperative was on the Commission. The problem was that the provision made no mention of the organs’ necessity to reply. It was important to find out how many directors general knew about these provisions.

Ms Smuts recalled that the SAHRC had issued subpoenas once because certain departments had failed to respond.

Mr Vally said that while the SAHRC was a bit hesitant about "getting into barn fights" with state departments, they did complain about the failure to respond.

Ms Matsomela noted that while the FHR had identified quite a number of shortcomings in the relationship the bodies had with Parliament, it failed to make any specific recommendations in that regard.

Mr Vally said that the FHR liked Prof Corder’s suggestion of a Standing Committee on Constitutional Institutions (SCOCI). Prof Corder made an important distinction between accountability and oversight. Parliament had an oversight responsibility over the Executive as well as organs of state. Chapter 9 institutions could assist Parliament in performing that oversight responsibility. SCOCI would then serve as an oversight and accountability mechanism over the constitutional institutions, and getting Chapter 9 institutions to exercise that oversight function over the Executive.

Mr Dithebe said that according to the submission, Chapter 9 institutions should be given additional power and authority to compel government departments to respond to their recommendations and requests. He sought clarity on this statement. Some of the bodies that appeared before the Committee were "blissfully ignorant" of the extent of the powers they had.

Mr Vally replied that paragraph 93.7 referred to the Human Rights Commission of India. It was substantively different from the SAHRC. Their legislation made it obligatory for government authorities to respond to reports within a specific period of time.

Prof Asmal pointed out that one did however not know whether that legal obligation was met in India.

Mr Vally replied that the big advantage of the Indian HRC was that the retiring Chief Justice became the chairperson of the national human rights institutions. While the provincial human rights institutions in India did not function as well as the national one, the national one had international respect.

Ms Smuts thought that there was merit in the proposal to have it be obligatory for departments to respond in writing to requests and recommendations.

Prof Asmal said that the suggestion would be noted.

Ms Smuts noted that the FHR felt that civil society should play a greater role in the appointment of commissioners. She was sympathetic to the idea of adding "an extra layer to the appointment process". The appointment process of the IEC was a good example to follow. She wondered whether the FHR could make a concrete proposal for an improved appointment process.

Mr Vally responded that the Constitution in Section 193(6) made provision for the possible involvement of civil society. The World Conference on Human Rights of 1993 had said that individual countries should decide what the practical legislation should be. The South African National Aids Council’s (SANAC) process, which he had been told was now working better, could perhaps be looked at as an example. Human Rights NGOs could even be asked to make a contribution in the appointment process.

Prof Asmal thanked the FHR for referring to the equality legislation.

Mr Vally quoted Jürgen Habermas who said that society moved forward through social communication. One of the problems of modern liberal democracies was that there was not enough such communication. The more bridges one built to facilitate such communication, the more society would move forward - the more civil society involvement, the better.

Prof Asmal responded that it was more complex than that – one needed to also consider who ran the organisations. He also pointed out that Parliament did not sit the entire year. The more complex the scrutiny, canvassing and appointment process, the less likely one would make any appointments. The SAHRC had written a letter to the Speaker suggesting that if a term of office ended in January, the appointment process should commence six months before. The Committee had not worked out how to address the matter. The same applied to the suggestion of a super committee overseeing the 11 bodies – Parliament already had too many committees. That too would be complicated. The Committee was still in the process of determining how it would go about it.

Human Sciences Research Council
Mr Mnebisi Ndletyana represented the HSRC and presented the research the FHR had commissioned. It also focused on the OPP, the CGE and the SAHRC. The research had assessed the relationship between these three bodies as well as between each of them and civil society in order to determine whether these relationships enabled Chapter 9s to fulfil their mandate and enabled vulnerable groups to access and realise their rights. It also made recommendations on how to improve the relationship between these two sectors. Recommendations included that civil society needed to formulate strategies around engaging Chapter 9s, who in turn should dedicate focussed attention and resources to building healthy relationships with civil society.

Discussion
Prof Asmal asked whether the HSRC had done any research on the non-availability of resources or whether they were merely accepting a broad generalisation and repeating it again and again. He wondered what the resources were for and how the bodies had pursued the need for resources. Prof Asmal maintained that the evidence before the Committee did not suggest that there was a non-availability of resources. He wondered whether anyone had carried out a study of whether needs had not been met by allocations.

Mr Ndletyana responded that one could not "point at R55 million and say that there was money". The adequacy of the allocation was relative to the need. He said that if resources had not been a challenge, the SAHRC would long ago have opened an office in the North West province where they did not have one.

Prof Asmal interrupted to say that the Committee would question the value of provincial offices. One of the reports suggested that national offices were more efficient than provincial ones. The need to open provincial offices was thus not a real need. It was not self evident that the SAHRC had to open an office in the North West – it could share an office with the OPP in that province and second the staff from Pretoria. This related to the efficiency of how the organisation was run.

Mr Ndletyana replied that the law unit within the SAHRC did not have enough lawyers. This was indicative of a lack of capacity, which could possibly be linked to a lack of resources. Resources had to be considered.

Prof Asmal said that the submission reflected that some civil society organisations were "ideologically" hostile to Chapter 9 institutions. Some NGOs thought that the courts were biased and opted for means of protest such as civil disobedience. The SAHRC had stated that they would not work with these bodies because they did not agree with their modus operandi. He wondered whether the option of not working with them was good or bad. He asked how a body that protected constitutional rights could work with a body that advocated the breaking of the law

Mr Ndletyana responded that the presence of the law did not necessarily presuppose the absence of some chaos. He felt that such actions were merely a way of highlighting the frustrations and constraints that existed within the system. He did not think that such cooperation was a bad thing.

Prof Asmal said that South Africa was a democratic country with a strong civil society. A letter in a newspaper that day had said that anyone who broke the law seriously should have no rights whatsoever. He wondered if Mr Ndletyana, as a representative of the HSRC was serious when he said that a human rights body that recognised that every right had a correlative duty, should work very closely with a body which advocated the breaking if the law.

Mr Ndletyana responded that in some cases, for instance where there was a demand for land and land was being invaded, the SAHRC could not support the action, but could provide assistance.

Prof Asmal referred to the Khutsong matter that was currently underway. One saw the unrest that was prevalent in the area on the news every night. Their grievance was related to the fact that they did not want to be merged with the North West province. They advocated direct action. He wondered whose human rights should be considered in Khutsong. The question would be put to the SAHRC too.

Mr Ndletyana said that while he did not have a profound response to the question, he did feel that violence in some cases was a response to institutional weaknesses. He said that at the start of the cross border demarcation process, the Gauteng legislation had agreed that the people of Khutsong should remain in that province. Parliament "in its wise wisdom" had decided to disregard that public mandate. While he did not support violence, he felt that their protest against the flawed parliamentary process was legitimate.

Prof Asmal said that the SAHRC had been asked to intervene in the area. Mr Ndletyana was an intellectual who belonged to a scientific body. It was quite legitimate for the people of Khutsong to feel betrayed. But the fact remained that for a year now there had been no governance in the area. He wondered how the SAHRC could intervene in the matter. He raised the matter as a "public representative who was sensitive to people’s access to ideas and rights". He wondered whether a human rights body could countenance what was essentially vigilantism.

Prof Asmal wondered what he should make of a document that stated that the function of the NGM was to promote "state feminism", partially through gender mainstreaming. He asked what that statement meant.

Mr Ndletyana responded that the statement in the context of the paragraph meant that the NGM made it possible for women to influence policy. More women in state institutions meant that they would be more likely to influence policy so that it catered for gender issues.

Prof Asmal pointed out that not all people understood jargon. To a layperson state feminism meant something quite different. He again pointed out that the equality legislation, which was one of the pillars of the CGE, was not mentioned in the submissions. He thought that that was probably due to the fact that material that had been read for the preparation of the submissions had not mentioned the equality legislation. He said that if he appeared to be "a bit tough", it was because he wanted to make sure that money was well spent.

The meeting was adjourned.