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AD HOC COMMITTEE ON THE REVIEW OF STATE
INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY AND THE PUBLIC SERVICE
10 October 2006
ELECTION OF CHAIRPERSON; TERMS OF REFERENCE: DISCUSSION
Chairperson: Prof K Asmal (ANC)
Documents handed out:
Relevant sections of the Constitution
The meeting was the Committee’s first, and so dealt with mostly administrative issues. Prof A Asmal (ANC) was elected Chair. All Members agreed on the importance of the Committee and said that their purpose was to assist and evaluate Chapter nine bodies and not to embark on a witch-hunt. There was some disagreement about which bodies should be examined by the Committee, but it was agreed that the Public Protector, the Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Independent Electoral Commission, the National Youth Commission, the Pan South African Language Board, the Financial and Fiscal Commission, and the Independent Communication Authority of South Africa would be included.
Election of Chairperson
Mr M Philander (Committee Secretary) said that the first order of the day was to elect the Committee Chair.
Ms C Johnson (ANC) nominated Prof K Asmal.
Ms M Smuts (DA) seconded the nomination.
Mr Philander asked if there were any other nominations. There were none and Prof Asmal was elected as Chair.
Prof Asmal said it was a great honour to Chair the Committee and added that they should try to come up with a shorter title for it. He had agreed to be a Member of the Committee because he believed in the importance of Chapter nine bodies. He had also only agreed to serve on the Committee if it received the highest level of support from parliamentary staff and the Speaker’s Office.
He then read a message from the Speaker, apologising that she could not attend the meeting and conveying how important she thought the Committee’s task was. Her message added that the Committee was about to embark on an expedition to strengthen democracy and they should not feel hindered by anything on their way. The Committee should not hesitate to call on her office for assistance.
The Chair assured the Committee that he would not hesitate to take her up on the offer. He explained the origins of the Committee. The Executive suggested its formation to Parliament on 20 September 2006. He explained that the Committee was to be a parliamentary body and therefore the majority party would not have the majority of seats on the Committee. He stressed that the Committee was to have priority over all other commitments of the Members. The Committee would go ahead with their work and have meetings even if Members were not present. The Committee timetable was going to be very tight and much of it depended on responses from Chapter nine bodies.
He continued to explain some of the rationale for the establishment of the Committee, saying that many of the Chapter nine bodies wrote directly to Portfolio Committees and the Executive, which was improper. They should write and report to the Speaker. The function of the Committee is to assist Chapter nine bodies to evaluate how they are exercising their duties. He added that the terms of reference for the Committee had been amended after they had been sent out to the relevant bodies and Members of Parliament. The fact that the Chapter nine bodies are constitutionally prescribed is unique to South Africa. He emphasised that the Committee would have to evaluate and assist the bodies without micromanaging them. They were to have a supervisory role only.
The Chair introduced Prof P de Vos (Law Professor at the University of the Western Cape) who would be the Committee’s constitutional expert and Dr L Gabriel (Manager: Information Services, Parliament) who would be the Committee’s parliamentary contact. He added that according to section 181(1)(5) of the Constitution, the Chapter nine bodies are accountable to Parliament but this has not happened. He said that the Committee would view the opinions of the public as an important part of the process and that an opinion survey would be conducted and parties would be asked to get the opinions of their Members. There are also a few organisations currently conducting research on the same topic, such as the Human Sciences Research Council (HSRC). He highlighted that the terms of reference stated that they were to look at bodies similar to or associated with the Chapter nine bodies.
Ms Smuts said that she also believed in the importance of the Chapter nine institutions. She said it seemed that subsection 2(a) of the terms of reference introduced the idea that the institutions should not exist by questioning their suitability. She hoped the Committee would give the Chapter nine bodies a sense of being appreciated and assisted. She thought it was strange that the Public Service Commission (PSC) was one of the bodies they were to review because even though it shared some similarities with the other bodies (such as being independent and impartial), it also differed significantly from the bodies.
Ms Johnson said that the purpose of the Committee was to strengthen and assist the Chapter nine bodies, and it should not become a witch-hunt. She added that she was in favour of extending the terms of reference to include the National Youth Commission (NYC).
The Chair said that they were free to interpret the terms of reference as they pleased and place emphasis where they felt it was needed. He agreed that it was necessary to evaluate the bodies and not to try to hang anyone out to dry. He drew attention to section 3 of the terms of reference that extended their investigation to organs of state of a similar nature. That was why the PSC had been included; it was part of their mandate. He asked which bodies the Committee thought should be included in their evaluation, and suggested that the NYC, the Pan South African Language Board (PANSALB), the Financial and Fiscal Commission (FFC), and the Independent Communication Authority of South Africa (ICASA) be included.
Ms Smuts said she had had disputes with the Minister of Communication over the independence of ICASA. Former President Mandela sent a law back to Parliament on the basis of her argument and President Mbeki had recently done the same. Section 181 of the Constitution lists some Chapter nine bodies and says they are only subject to the Constitution and the law. Section 192 of the Constitution, which is within Chapter nine, establishes ICASA. Thus, it is also a Chapter nine body.
The Chair said they would ask Prof de Vos about the interpretation of the Constitution and that they should not quibble about the issue.
Ms Smuts said that the NYC and ICASA were not on the same level. She said that the NYC bore no resemblance to a Chapter nine body and she was not even sure that it should exist. It seemed out of step with the other organisations included in the investigation.
Mr S Dithebe (ANC) said that since over 70% of the population was under age 35, the Committee could not ignore the NYC. He added that it was not up to them to decide which organisations should exist just yet. They should first conduct their investigation.
Mr T Delport (DA) said that whether or not a body had been included in the terms of reference did not prejudge its importance. The Committee must be open-minded about the process.
The Chair said that they could not doubt that the NYC was similar to the Human Rights Commission (HRC) and that they should not devalue the Chapter nine bodies. He said that the bodies to be evaluated would be the Chapter nine bodies, PSC, PANSALB, ICASA and the NYC because youth issues were of a similar nature to the issues that the Commission for Gender Equality (CGE) dealt with, and the FFC. They were not devaluing the Chapter nine bodies by including the other bodies. He added that he was not serving on the Committee as an ANC Member, but as a parliamentarian, and that Members should feel free to sit with people from other parties.
Ms Smuts said that she always worked like that. She walked into a meeting as a MP.
Ms S Rajbally (MF) welcomed the establishment of the Committee and said that it should not try to establish which institutions fall under Chapter nine, but which should. She added that they were all there as Members of Parliament.
Ms Smuts said they were fortunate to have two constitutional judgements on Chapter nine bodies and asked whether they would be given information about these rulings, as well as other background information.
The Chair said that Ms Smuts had anticipated the next item up for discussion. A resource centre had been established in the library which would contain all the material that had been gathered. This would include annual and special reports from the last five years, the statutes of the bodies, a chart comparing the statutes, powers and duties of bodies and a collection of press clippings. He added that there had been little research done by universities on the effects of Chapter nine bodies or Portfolio Committees. He said that they would write to the organisations informing them of the Committee’s existence. They would not want them to learn of the Committee via the press.
They would also write to the Ministers of Arts and Culture, Communication, Finance, Home Affairs, Justice, the Presidency and Public Service and Administration asking them to comment on the Chapter nines by 15 January 2007. They would be meeting with the bodies to be evaluated on 20 October and would be constructing a questionnaire for each body, to be completed by 15 January. This was to ensure standardised responses. Then they would meet individually with the bodies. Their report should be ready by May 2007. He asked the Committee to think about what issues they would like to raise with the Chapter nines and hoped that they would go back to their parties and try to involve their Members. An opinion survey would also be carried out; people must know about the Committee and the process of evaluation. The report should be finished by mid-April for consideration. He promised to ensure that they had a legal officer with them in future to inform them of parliamentary proceedings. He said that there were four agencies that were looking at the same subject sectorally and that they would also present to them.
Dr Gabriel added that there was some work on the topic by the Human Sciences Research Council (HSRC) that focused mainly on the HRC and public processes. Research had also been conducted by a group at the University of Cape Town on Chapter nine bodies and reporting mechanisms. The Civil Society Advocacy Programme was researching the HRC, the Public Protector and the Commission for Gender Equality in order to make recommendations on how to strengthen the institutions. However, their report will probably lack the political insight of the Committee’s findings.
The Chair said that they would be invited to share their views on 25 October and that they would work closely with civil society. He said that the first meeting with the Chapter nine bodies would be for them to tell the Committee what problems they had; it was not for the Committee to criticise them yet.
The meeting was adjourned.
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