South African Human Rights Commission filling of vacancies: discussion on process

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Justice and Correctional Services

12 August 2009
Chairperson: Mr N Ramatlodi (ANC)
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Meeting Summary

The Portfolio Committee discussed what procedure should be followed in electing Commissioners to the South African Human Rights Commission, and followed up on the legal opinion sought as to how many Commissioners could be elected. The advertisement calling for nominations of Commissioners had mentioned only five Commissioners, although the Act made allowance for more, and concerns had previously been expressed about the budgetary implications of appointing more than five. In addition, the Committee wished to consider whether the advertisement was legally correct in having been placed by the Portfolio Committee, and not the Deputy Minister. The Parliamentary Legal Adviser noted that he was of the view that the process of the advertisement having been placed by the previous Portfolio Committee was legally competent, and that there was no prejudice, although he did note that some other National Assembly Table staff did not share his view. He also confirmed that the legal framework for the appointment process only provided a minimum number of Commissioners, not a maximum number, and if there were more than five suitable candidates, they could legally be appointed, and this process could not be seen as discriminatory or problematic. The subcommittee should also be able, if it felt this was appropriate, to nominate part-time Commissioners. If there were budgetary issues, the person responsible for liaison with National Treasury should take the issue up with the Treasury.

Members discussed whether the shortlisting process should be held in closed session, but agreed that it should not, since the public was encouraged to participate in the selection process, but that the media would be asked to show sensitivity, as it had done in the past, about issues of confidentiality, so that the subcommittee would not feel constrained in its discussions.

Another issue was raised by a Member querying whether the Speaker of Parliament had the right to call upon the South African Human Rights Commission to furnish a report on complaints procedures, but this was not debated further.

Meeting report

South African Human Rights Commission (SAHRC): appointment of Commissioners to fill vacancies
The Chairperson explained that this meeting would continue the discussions on the call for nominations to the South African Human Rights Commission (SAHRC or the Commission), placed by the previous Parliament.

The Chairperson explained that he had been alerted to the fact that there might be legal problems around this advertisement, because it was authored by the Committee on Justice and Constitutional Development rather than the Deputy Minister of Justice and Constitutional Development. He had raised and discussed this matter with the Parliamentary Legal Advisers, who seemed to feel that there was nothing legally objectionable to this procedure.

Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, reported that he had discussed the matter with the Table Staff of the National Assembly, some of who had shared his opinion that the previous Portfolio Committee was within its rights to make that decision. Others differed in their views, and further clarification on this could be provided by the Table Staff themselves, if necessary.

 Ms D Smuts (DA) said that this linked to an article she had read in the Mail and Guardian, which had said that the Deputy Speaker had written a letter to the Chief Executive Officer of the SAHRC, calling for an investigation into the efficacy of the Commission’s complaints system. She felt that this was an incorrect channel of decision making, and that it was not appropriate that the Speaker’s office should make decisions that should, in her view, be made by Members of Parliament.

The Chairperson replied that what was required was a simple clarification of roles according to the Constitution.

The Chairperson returned to the issue of the advertisement calling for nominations of SAHRC Commissioners, saying that even though there might be perceived to be some irregularity in the origins of the advertisement, it had not prejudiced anybody, and therefore should be accepted by this Committee.

Mr J Jeffery (ANC) stated that he thought that Chapter 9 institutions were accountable to the National Assembly. It was up to the NA, and the Speaker, to decide who should deal with the issue of appointments. He said it was not important who had authored the advertisement. It was not guaranteed that the Committee would have the opportunity to nominate names. The Constitution required that a Committee of the National Assembly would make a nomination of its suggested Commissioners to the National Assembly (NA), who would then approve them. The most important part of this process was that the public was informed. He said that he could not see any prejudice in the process whereby the advertisement was issued by the previous Parliament, since it was not Parliament who would finalise the appointments.

Mr Jeffery noted that Ms Smuts’s issue was entirely different.

Mr M Oriani-Ambrosini (IFP) said that the issue was simple – the process was either legal or it was not. He suggested that the Committee should proceed on the assumption that it was legally permissible, and if any issues arose at a later stage these could be dealt with at the next meeting. He also expressed concern that the legal opinion of the legal advisor was not shared by all Members of the Committee, since he felt that a Committee, before acting on legal advice, should be unanimous in its view.

Mr Vanara replied that this was not an attempt to withhold information, but that other people did hold other opinions, which he did not share, and he had suggested that these opinions should be presented by the people who held them.

The Chairperson concluded that the Committee would proceed upon the assumption that the advertisements were considered legally correct by the Committee. The issue of information sharing would be dealt with at a later stage in the meeting.

The Chairperson noted that all nominations should by now have been received by the Committee, but that if there were any further nominations not in the possession of the Committee, they should be made before the short listing. The short listing process was already late, and should have been completed by 12 August.

Mr M Gungubele (ANC) agreed, and said that Members should commence with short listing as soon as possible.

Ms Smuts expressed confusion about the Chairperson’s reference to further nominations. She said that since the closing date for nominations had been stated as 8 May, all nominations should have been received by this stage, and that it was problematic to consider any CVs submitted after this date.

Mr Vhonani Ramaano (Committee Secretary) replied that in some cases, people would try to submit their CVs late in the afternoon of the final date, which caused computer server problems. Some of the CVs, although submitted in theory, had not been received properly, and these were the ones to which the Chairperson was referring. He was also waiting for confirmation that the Committee did have all CVs from the person to whom those CVs were directed in terms of the advertisement.

 Ms Smuts expressed concern that this process was not clear. She commented that in the pack of CVs that she had received, there was some documentation missing, some duplicates, and some documentation without the necessary covering letters. She asked for clarification whether Members were still waiting for further CVs.

Mr Ramaano repeated that he would be checking this with the person tasked with receiving CVs, and would confirm this as soon as possible. He was aware of some CVs outstanding, and some documents that were missing their covering letters.

The Chairperson concluded that all CVs for consideration should be received by Friday 14 August, and the short listing should take place on Tuesday 18 August.

Mr Jeffery said that he thought that the cut-off date need not be rigid, but he felt that it was crucial that all CVs sent through were considered, and that none were lost when compiling the application list. He suggested that the subcommittee should then go through all applications, and create a shortlist. He suggested that the subcommittee should meet in a closed session to ensure the privacy of the applicants. This would also ensure that the subcommittee members felt able to make recommendations about each application without worrying about how this would be portrayed by the Parliamentary Monitoring Group (PMG) or the media.

Ms Smuts opposed the suggestion that the short listing process be closed, stating that it was not necessary and would be regrettable. She said her experience of similar procedures had shown that application numbers, and not names, were used, precisely to avoid any publicity issues, and that the PMG had never abused this process.

Mr Gungubele expressed concern that making the shortlisting process public would hinder the subcommittee’s ability to assess each application. He said that he would prefer a situation where the subcommittee should deal with the issue privately, in order to make it more manageable for the final selection committee.

Ms Smuts said that the Committee should not forget that the Constitution dealt with the issue of public participation, and the Constitution’s section relevant to this process said that public participation was encouraged in the appointment of these bodies. Nominations were taken from the public, and it would seem contradictory to conduct any stage of the process behind closed doors.

Mr Oriani-Ambrosini said that if there was doubt surrounding the issue then the best plan was to go for transparency.

Mr Jeffery agreed that transparency was important. In light of the points raised, he revised his previous suggestion, but proposed that the person chairing the subcommittee should ask for sensitivity from the media, to allow for proper and substantial consideration of candidates. He also suggested that there should not be a verbatim transcript of the process. He thought it was necessary to achieve a balance between transparency and the needed to openly discuss candidates without restriction.

The Chairperson agreed.

Mr Oriani-Ambrosini requested that when parties received a shortlist, they be allowed to make party nominations for additional names to the shortlist.

The Chairperson replied that before the shortlist was finally compiled, the Committee would be flexible with the nomination of names. However, after compilation of the shortlist, the nomination of yet more names would take the procedure backwards. He agreed that the process should be inclusive, and should produce a Commission that represented the Committee and South Africans.

Mr Gungubele agreed. He said that all nominations should be brought forward before the short listing to ensure that the issue was managed well. For this reason he felt that all parties should attend the process.

Mr Jeffery agreed with Mr Gungubele, and noted that while the smaller parties like the Inkatha Freedom Party (IFP) were stretched, it was essential for a party member to attend the process of short listing. He agreed that adding any new party nominations after short listing would make the process untenable.

The Chairperson agreed and concluded this issue. He defined that the subcommittee would agree the shortlist, which would then be brought before the full Committee for approval

Members made suggestions as to suitable dates, and Mr Jeffery proposed the shortlisting committee should meet on the next Thursday, which would allow Monday and Tuesday to complete the process and would allow the Committee members to consider the shortlist on Wednesday. He then asked how many people the Committee felt should be short listed.

Mr Vanara explained that he had researched two issues. The first was the legal composition of the SAHRC. The legal framework provided for a minimum number of Commissioners, but not a maximum. If more than five candidates were recommended for appointment, then this would be legal. However, the second issue was whether the Committee was able to select more than five, since only five positions had been advertised. There was nothing in the law prohibiting this, and there could be no claims of prejudice, since the advertisement had been open to all applicants.

Mr S Holomisa (ANC) pointed out that the issue was not whether more candidates could be selected, but rather why more than five candidates needed to be selected, and whether it was financially feasible to select more than five.

Ms Smuts suggested that if there were budgetary concerns, the Committee should interact with National Treasury, and that the person responsible for Treasury discussions should be identified and approach the Treasury if necessary.

The Chairperson said that that issue could be addressed if the shortlisting Committee needed.

Mr Jeffery expressed concern that the advertisement had specified appointment of five full time Commissioners. His reading of the legal opinion was that the Committee could suggest more than five Commissioners. He thought that perhaps there might be candidates who would be good, but were only available part time, or were unwilling to give up their fulltime jobs. He thus recommended that there could be selection of part time Commissioners if the subcommittee found that such candidates were suitable.

Mr Ramaano said that the number of Commissioners had always been open for discussion in the Committee, and that Members had the mandate to adapt this.

The Chairperson concluded that the Committee would consider various aspects that would influence their selection. He said that the Committee may recommend appointment of more than five if the need arose.

The Chairperson then proposed that the Committee hold a workshop on 27 and 28 August to make clear the role and programme of the Committee, and the role of this Committee in relation to other committees.

The meeting was adjourned.

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