AIDS Law Project, F W de Klerk Foundation, COSATU, Open Democracy Advice Desk, IDASA: submissions

AD HOC COMMITTEE ON THE REVIEW OF INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
23 February 2007
AIDS LAW PROJECT, F W DE KLERK FOUNDATION, COSATU, OPEN DEMOCRACY ADVICE DESK, IDASA SUBMISSIONS

Chairperson: Prof K Asmal (ANC)

Documents handed out:
AIDS Law Project Submission
F W de Klerk Foundation Submission
COSATU Submission
Open Democracy Advice Desk Submission
IDASA Submission

Relevant document:
Terms of Reference
Promotion of Access to Information Act (2000)

Audio Recordings of the Meeting: [Extract 1] [Extract 1]

SUMMARY
The Committee received oral submissions from five non governmental organisations – the Aids Law Project, the F W De Klerk Foundation, the Congress of South African Trade Unions, the Open Democracy Advice Desk and the Institute for Democracy in south Africa. The submissions focussed mainly on the South Africa Human Rights Commission, the Commission for Gender Equality and the Office of the Public Protector. Recommendations included the incorporation of the gender and youth commissions in to the human rights commission, strengthening the Human Rights Commission’s capacity to implement the Promotion of Access to Information Act, the possibility of an oversight body consisting of both parliament and civil society, and thorough review of the institutions’ budgetary and appointment processes. The Committee requested organisations to provide sufficient evidence for some of the claims of incompetence and inefficiency, and to give adequate support for the recommendations they made. The Committee sought realistic input that would assist them in making recommendations that could easily and enthusiastically be implemented.

Minute
Prof Asmal’s opening remarks
Prof Asmal welcomed everyone present to the first of the Committee’s interactions with non-governmental organisations (NGOs). He explained the process the Committee had up until then undertaken. The Committee had had very searching, detailed and systematic interactions with most of the bodies. Some of them may be recalled.

He noted that some of the NGOs had referred to the budget process in their submissions and commented that the reality of the situation was more complicated than some of the textbook or periodical writers had indicated. There was enormous variation in the budgetary processes. In some cases the institutions played an important role, in others the departments acted as a ‘”postbox” and passed it on and in some others the institution had the opportunity to discuss the matter with the relevant departments as well as National Treasury. A submission made by National Treasury suggested that Parliament should be responsible for the institutions’ budgets. The Executive felt it a necessity because National Treasury felt that there were some departments that had neither the time nor the inclination to be involved in the budgetary process.

The Committee was also concerned with the efficacy of the bodies and would have an opinion poll. A macro social survey published by Government said that two of the best known Chapter 9 bodies, the Office of the Public Protector (OPP) and the South African Human Rights Commission (SAHRC) were known by only half the population. A study done by Sir Bob Hepple, on the British equivalent of the bodies had found that only 15% of people had heard of their Commission on Racial Discrimination and Gender. The Committee had been very tough with the bodies about how they had publicised themselves because it was concerned about the commissions’ visibility to the public.
He said that the Committee was very committed to the institutions, and accepted neither the neo liberal approach that money determined everything, nor the left wing approach that if the bodies were not successful they were not good enough for the government.

He pointed out that the Committee’s questions would be informed by the terms of reference and would be very searching and cautioned that there was nothing implicit in the Committee’s questioning. No conclusions had been arrived at yet. He noted that very few of the organisations had mentioned that the institutions were uniquely South African and thus it was important to consider the context in which they operated. The Committee would consider the submissions it received because it would assist in clarifying some matters. The organisations would be welcome, after the interaction, to revise their submissions.

Aids Law Project Submission
The Aids Law Project (ALP) was represented by Ms Fatima Hassan (Senior Attorney) and Mr Jonathan Berger (Head of Policy and Research). The ALP welcomed the review of the institutions supporting constitutional democracy and sought to understand and address the structural difficulties many of these bodies experienced. They felt that these challenges undermined the strong and effective leadership that was necessary for success. It also felt that Parliament should conduct the review in a manner that would strengthen the ability of Chapter 9 institutions to discharge their primary roles. The ALP’s recommendations included the incorporation of the Commission for Gender Equality (CGE)) into the SAHRC, that a Committee consisting of parliament and civil society should conduct general and financial oversight of the Chapter 9 bodies and that the SAHRC should be strengthened to better implement the Promotion of Access to Information (PAIA) legislation.

Discussion
Prof Asmal said that in the CODESA negotiations the general view was that there should be a very strong and powerful human rights commission. Both the women’s lobby and COSATU pursued the idea of separate treatment of women. He wondered what the ALP thought had changed in the last fourteen years that would require that the CGE be incorporated in the SAHRC.

Ms Hassan responded that the ALP had made three points about the CGE, and was not at all saying that there should not be specific focus on gender equality in human rights monitoring work. The ALP felt that South Africa had become a country that needed to recognise that in all human rights work the focus on gender equality should be mainstreamed. The ALP’s experience with the SAHRC and the CGE indicated that the SAHRC was very reluctant to include a focus on gender because they believed that it fell within the mandate of the CGE. She was not certain if this was due to a political decision or whether it was a matter of “people not fully understanding their mandate”. There had been cases where the SAHRC would not get involved in a particular matter believing that it was a matter for the CGE to take up. The absence of gender issues also prevented significant oversight from the SAHRC. Many civil society organisations, as well as the gender and women’s lobby would support bringing the CGE into the broader mandate of the SAHRC and thus having a directorate within the SAHRC that dealt with gender equity.

Prof Asmal said that the PAIA already gave the SAHRC power of implementation. The gap was around whether they enforced the right to make an order or to subpoena.

Mr Berger responded that although it might be worth considering, the submission did not go as far as saying that the SAHRC should have the power to make orders. There were certain roles that the PAIA permitted, but did not require the SAHRC to play. The ALP believed that “what was not required would not get done”. They would like to see the SAHRC taking up access to information complaints and to use their power to place pressure on government departments that did not want to release information so as to reduce the number of cases that went to court. Ultimately it may be worth considering that when cases had to be litigated, the SAHRC might be best placed to take those matters up.

Prof Asmal commented on the ALP’s “rather unique proposal” that oversight, which everywhere else in the world was a parliamentary function, performed exclusively by parliamentarians, should become a “mass rally” involving other people. He explained that Parliament did not guard its powers, but parliamentary supervision meant oversight as performed by members of Parliament. NGOs should be present when parliamentarians discussed reports. He asked the ALP to elaborate on how they “totally transmogrified” parliamentary oversight into something very different, and whether that had been their intention.

Ms Hassan replied that the ALP was not suggesting a mass rally but a “very nuanced way” of making sure that oversight was done in a manner that included all relevant stakeholders.

Prof Asmal pointed out that there was only one stakeholder – Parliament. The Constitution said that the bodies accounted to Parliament, which had a very distinctive feature – members of parliament. Parliament referred to the National Assembly (NA) and the National Council of Provinces (NCOP). The Constitution spoke specifically of accountability to the NA. The ALP was trying to disembody it by saying that the NA should include academia and lawyers. He mentioned that he had written to all 22 law faculties and not one had replied. The ALP’s suggestion would require a constitutional amendment.

Ms Hassan responded that the oversight function would remain with Parliament. The processes to the appointment or to the selection and short-listing of commissioners should involve other stakeholders.

Prof Asmal pointed out that the ALP spoke of including civil society in oversight; appointments were a different process.

Ms Hassan replied that it was necessary to find a mechanism whereby Parliament’s oversight function could be strengthened through the involvement of other stakeholders.

Mr Berger added that although they might have been stumbling over terminology, the ALP’s primary concern was around the appointment process and issues of financial accountability. Their understanding of the Constitution was that Parliament had quite a broad discretion to determine the way in which it exercised its oversight. If Parliament were to pass legislation that recognised the role of the appropriate stakeholders in their areas of concern, it would still be acting within the confines of the Constitution.

Ms C Johnson (ANC) noted that the ALP was in favour of an expanded SAHRC. She noted that they had been critical of the SAHRC before and complained that the SAHRC failed to tackle human rights violations with urgency, to intervene in politically charged cases, to use their powers of subpoena and did not hold government fully accountable. She wondered whether the ALP was now recommending that this situation be regulated via a legislative amendment and wondered whether that was at all possible.

Mr Berger responded that the ALP did not believe that simply changing the law would remedy the situation. The amended statutory mandate was actually an expansion of the SAHRC’s mandate. The ALP felt that in giving the SAHRC much stronger powers, civil society would be in a much stronger position to take action against them if they failed to do their job.

Mr J van der Merwe (IFP) wondered whether they could take the SAHRC to court.

Mr Berger responded that it was very difficult to take a body to court for not doing something they were not legislated to do.

Prof Asmal said that the Constitution required all organs of state to uphold the dignity of the Chapter 9 and associated bodies. Organisations had made “remarkable statements” about their incompetence and inefficiency of these bodies, but did not back those claims up with relevant source material. He asked the ALP and other organisations to supply the Committee with the appropriate and relevant source material.

He drew everyone’s attention to Section 181(3) of the Constitution which read that “other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” He said that he did not draw their attention to this provision because he was a lawyer, but rather because he believed in the institutions. If very strong statements were made, they should thus be supported by strong evidence and not “press cuttings”. He said that submissions should supply evidence and not refer to perceptions, which often were “individual prejudices”. He requested that the ALP provide supporting evidence for the statements Ms Johnson had referred to. If the ALP wanted more attention to be paid to their submission, the Committee would require supporting arguments in favour of the serious criticisms it had made.

The F W De Klerk Foundation Submission
Mr Dave Steward (Executive Director), Adv Nichola de Havilland (Deputy Director of the Centre for Constitutional Rights) represented the F W de Klerk Foundation. Mr Steward thanked the Committee for the opportunity to express their views on what they considered a very important aspect of South Africa’s new democratic dispensation. Though most of their comments were general, that did not mean that they were not true. The Foundation felt that if the institutions were to fulfil their mandates, they needed to be independent and impartial, be respected by government and civil society, have clear and achievable mandates, have adequate resources, be accountable, enjoy effective parliamentary oversight and be accessible and responsive to the public. Mr Steward believed that the roles of the CGE and the National Youth Commission (NYC) could be incorporated within the SAHRC and that the Commission for the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) and the Pan South African Language Board (PanSALB) could merge.

Discussion
Prof Asmal commented that since the submission was very broad the Foundation would be asked to provide more information. Paragraph 7.1 referred to some institutions contributing nearly all their resources to salaries. This had not been the Committee’s experience thus far and he asked that evidence supporting that statement be provided.

Prof Asmal thought it important, for record purposes to, point out that the section referred to in paragraph 5.2 of the submission was Section 193 (2). He added that Section 195 (1)(i) dealt with public administration which was something very different from a commission.

He pointed out that the terms of reference required the Committee to investigate the relevance of the institutions under review in a developmental state and present-day South Africa. Their submission had instead referred to the role that had been envisaged for these bodies at their inception.

Mr Steward said that the Foundation thought that the CRL Commission should be playing a far more active role in promoting the rich cultural, religious and linguistic communities within South Africa. PanSALB could also be doing a great deal more for the development of indigenous languages.

Congress of South African Trade Unions Submission
Mr Elroy Paulus (Consultant) and Mr Neil Coleman (Head of the COSATU Parliamentary Office) presented the Congress of South African Trade Unions Submission. They raised a number of concerns regarding the intricacy and complexity of the Review process, the efficacy of the institutions and the budget process. Their recommendations included improved cooperation between the institutions and civil society, as well as improved parliamentary oversight. COSATU also argued for steps to be taken so that the institutions had greater operational independence, and that those who had them used their powers of litigation where necessary.

Discussion
Prof Asmal pointed out that the claim that the Committee’s terms of reference were similar to those the Department of Public Service and Administration (DPSA) used when it did Government’s review of the Chapter 9s was incorrect. The Committee’s terms of reference, which had been supplied to COSATU, did not include the possible rationalisation of remuneration scales as indicated in the COSATU submission (p4). The argument that the Committee was a “kind of lapdog to the executive” because their terms of reference were the same thus fell away. He added that that was a substantial correction because the belief that the Committee emerged from an Executive intervention affected COSATU’s submission.

The Committee had received more than 150 submissions from individuals and organisations and had looked at each one of them. Members could however not go through every single one to correct the information contained within them.

The COSATU for instance suggested that the Committee should address the dismissal of Commissioners despite the fact that that had already been covered in the Constitution. The Committee’s competence relates to process and procedure. The impression the submission created that people had to travel many hundreds of kilometres was also inaccurate. The OPP had offices in nine provinces. The centres that were being set up were part of a new departure. In addition the tables provided at the end of the written submission were inaccurate and out of date – the President did for instance not appoint all Commissioners.

He said that the Committee wanted to take into account what civil society put before it but the insights provided had to be based on fact. Referring to page 16 of the submission he noted that the source quoted was one line in the Mail and Guardian’s score card for the Public Service Commission (PSC), which was intended to be slightly light-hearted in any case. COSATU furthermore extraordinarily claimed that the PSC had not developed a clear vision for the public service and did little about its transformation. He pointed out that the PSC had provided the basic documents on transformation as well as the scorecards for departments. Prof Asmal asked whether COSATU would like to review their submission, in particular the last two pages, which were out of date and slightly inaccurate.

He said that in some bodies there had been enormous maladministration and waste of resources, corruption and effectively no supervision. National Treasury had clearly indicated that it would prefer if Parliament took charge of allocating resources to these institutions. The Committee should now consider how such an arrangement would work. He pointed out that in the Medium Term Expenditure programme nearly every one of the bodies’ budgets had increased. In some cases the increase was by 100%. The Committee wanted to find out how Parliament would go about fixing the institutions’ budgets were they to be transferred to Parliament. The implication was that the allocations would be determined on the “say so” of the bodies. The Public Finance Management Act (PFMA) had to a large extent removed corruption and incompetence in budgetary proceedings. If the PFMA would apply (and he argued that it should apply to Parliament too) then National Treasury would interact with these bodies. If the organisations felt however that this would violate the independence of the bodies, then the Committee would appreciate supplementary submissions from them saying exactly how the budgets should be fixed.

The Committee had considered that one of the unintended consequences of setting up regional offices was that institutions did not budget for them. One also had to consider the efficiency of these offices as well as who exercised oversight over them. One of the comments the Committee had received was that regional offices were often less efficient than national offices and often took longer to respond to matters. The Committee was thus interested in civil society’s assessment of the value of regional offices.

Dr J Deport (DA) thought that he had heard COSATU doubt the Committee’s “openness of mind”. He assured COSATU that the Committee was impartial in its assessment of the bodies. He pointed out that the majority party did not have an absolute majority and all opposition parties were fairly represented. The Committee looked at all aspects but did not have the “magic wand” with which to cure all ills in the country.

Mr Coleman explained that COSATU was not suggesting that the Committee was not applying its mind to the issues. They were mainly appealing to the Committee to not, particularly as far as the restructuring and rationalisation of the institutions and remuneration, consolidate structures in a particular way. COSATU was calling for openness to the process. When recommendations were made civil society should be involved so that here could be a national conversation around what the best solution would be. They also believed that the merits and demerits of incorporating or rationalising a particular body into another needed to be debated thoroughly.

Prof Asmal wondered how he could persuade COSATU that the Committee was addressing the matter with “virginal purity”. He had already explained that what had been ascribed to the Committee’s terms of reference was in fact not contained in their terms of reference. The Committee had found that particularly the technology based institutions, could not keep their staff. The Independent Communications Authority of South Africa (ICASA) had an enormous role to play in the distribution of resources. He pointed out that those conferring licences within ICASA were being paid only R230 000 per year – this had enormous implications for “seduction, corruption and inducements”. The functions that Parliament conferred on the regulator were not being performed because they had so many vacancies, which affected their efficacy.

Mr S Dithebe (ANC) said that the submission implied that if Parliament were to pass the Section 77(3) legislation that would free up resources that should be available to state institutions supporting constitutional democracy. He wondered how that would happen in practical terms and whether it was believed that it would cure all the ailments about the resourcing of the institutions. The submission further said that once these institutions were well resourced they would be “free of” government departments. He reminded them that Section 181 of the Constitution was very clear as to the role and responsibilities of these institutions. The submission did not state what, based on their own experience, had compromised these bodies’ independence.

Ms C Johnson (ANC) said that many of the Chapter 9 institutions would like to have a parliamentary committee that dealt with them specifically. She wondered whether civil society organisations felt that civil society would benefit from such an arrangement.

Mr Coleman responded that COSATU was not making an a priori judgement that the institutions were getting too much or too little funding. They felt that the allocations had taken place within a particular “fiscally tight” context in which National Treasury decided how much funding they received. Parliament played very little role in the budgetary process. Section 77 provided that Parliament would have the power, through the Money Law amendment to increase or cut allocations if an institution was not performing or if it was wasting resources. All of this would take place within the budgetary process.

Prof Asmal said that fact that all of it would occur within government’s budgetary process was not included in the submission. Knowing that it would indeed happen within that process, clarified a great deal.

Ms S Rajbally (MF) wondered whether COSATU received income form the affiliated unions and other avenues.

Prof Asmal ruled that COSATU would have to deal with that question through correspondence.

Open Democracy Advice Centre Submission
Prof Asmal said that technically the Open Democracy Advice Centre’s (ODAC) submission did not fall within the Committee’s terms of reference as it related solely to the PAIA and its implementation. Ms Allison Tilley (CEO) and Mr Mukelani Dimba (Deputy CEO) represented the ODAC. Their submission considered the role of the SAHRC in relation to the implementation of the PAIA, which they believed was a powerful tool for development, transformation and for supporting participative governance. They also thought it key for creating transparency and openness in government. The presentation dealt with the legal provisions for the rights of access to information, challenges with the implementation of the act and made cases for the creation of an information commissioner or a data protection enforcement agency.

Discussion
Prof Asmal noted that ODAC had very early on come to the conclusion that the SAHRC was not the right body and they had given philosophical arguments as to whether an investigative body could not give an order. He wondered whether any of these concerns had been raised with the SAHRC.

Prof Asmal pointed out that in the South African situation there was considerable impatience with the proliferation of new organisations. He could thus confidently state that there would not be a data protection agency. Parliament had already set up 29 bodies. He added that if one were to set up agencies of that type one had to pay market related salaries. Sir Bob Hepple in his study on the English equality bodies said that too many bodies in one area caused confusion and a lack of support and remedies. He asked ODAC to be “less rigid” and to consider that the SAHRC would perhaps be the right instrument to do this.

He wondered whether the SAHRC had confirmed that they had neither capacity nor the inclination to do more zealous work on this. If the SAHRC took this function there could perhaps be a single “omnibus law”. He pointed out that it was very difficult to get government departments to prepare statutes.

Mr Dimba confirmed that ODAC had discussed these matters with the SAHRC directly. The SAHRC had also been in discussions with other role players in the freedom of information field. The SAHRC had called a conference that included Members of Parliament as well as government departments. Consensus was reached that there was indeed a gap in the law that needed to be strengthened by having a mechanism that would be an intermediary between the person who requested the information and government departments.

Prof Asmal said that the PAIA Indaba, Mr Dimba referred to happened in 2003 and asked what had happened since then.

Mr Dimba pointed out that the PAIA Indabas were conducted on an annual basis. At the last one there was no resolution to reconsider the decision that had been taken at the first indaba.

ODAC too had felt that the introduction of an information agency might meet with counter-arguments. While they felt that having a separate information commission would be ideal, they did have alterative suggestions. These included extending the SAHRC’s mandate and strengthening its capacity to enforce the PAIA.

Prof Asmal commented that most of the information provided in the ODAC Report dated from 2001-3. ODAC referred to a snap study they had done (p18). It found that 60% of public officials failed to respond to requests for information in terms of PAIA. He pointed out that the Committee would consider the access to information provisions but would do so on a rational basis. They could certainly not decide that the legislation did not work because at some point ODAC had done a snap survey.

Ms Tilley said that the most recent information probably came from the 2004 Report of the Open Society Institute Justice Initiative Monitoring Study, which was conducted across fourteen countries. South Africa was the continental coordinator. The findings had recently been posted to ODAC and they would be happy to make it available to the Committee. The study had been used by the PSC when it compiled its annual survey of the state of the public service. Since there had not been any significant policy or structural institutional changes, ODAC had no reason to believe that the results had since changed.

Prof Asmal noted that ODAC had very easily accepted that the Office of the State Attorney had refused to give them the cost to the state of the actions related to access of information. He pointed out that where public finds were involved there was no client – lawyer confidentiality.

Ms Tilley responded that ODAC was simply too busy fighting other matters they thought more important. These were requests from poor people in communities that were not receiving basic services such as water and electricity. In the face of these realities ODAC felt that their interest in the price the State paid for fighting information requests was not something they would litigate about. It was however something that they were interested in and they believed that the cost was very high. If there was some enforcement power, the cost of that power would certainly result in a cost saving.

Looking at the impatience with establishing new bodies, she agreed that that was an issue. She felt that it was a question of reconsidering some of the bodies that were already in existence. It was clear that if one wanted ordinary people to have information they had to be able to go somewhere other than the high court. If such an enforcement agency was not established, such people would not have access to information. Providing for access to information in the legislation or in the Constitution was simply window-dressing if there was now way of making it a reality.

Prof Asmal said that it would help the Committee a great deal if the ODAC could address the issue in a supplementary submission, which should indicate what the appropriate body would be, should the Committee decide that there ought to be an instrument for enforcement. On the basis that they could not invent new bodies and that what they said would not be without influence, it would help if ODAC could perhaps consider an existing structure. It was clear that the access to information legislation did not work. The SAHRC was the existing instrument for enforcement and already had powers. The Committee did not accept the argument that if one were charged with investigating a system, one could not be involved in enforcement.

He said that he still read the replies under the Covenant on Civil Political Rights (choosing about 25 countries from the 180 ratified) as well as the United Nations Convention on Racial Discrimination in which South Africa did not appear to be doing very well. He pointed out that many of the replies were “works of art”. While as Chairperson of the Committee he could not refer to the countries he referred to, he was deeply sceptical about some of the responses. He noted that the Open Society survey referred to above had been sent out to about 14 countries, and said that that was a fairly small sample to be drawing “extraordinary conclusions” from. As far as he was concerned, a case was not helped by comparisons.

He said that the Committee would find useful the conviction that legislation was not being implemented and observed. The suggestion for an additional body was beyond the Committee’s terms of reference and his experience at Parliament led him to believe that the creation of a new agency would not be supported.

Prof Asmal noted that the ODAC submission referred to federal systems, which included Japan as well as the United Kingdom neither of which had a federal system but were in fact unitary states. He agreed that context and history was everything, as was pointed out in the IDASA submission.

Mr Dithebe wondered whether, since ODAC was suggesting that the SAHRC should be better capacitated to deal with aspects of PAIA, it had also looked at the SAHRC unit that was tasked with dealing with PAIA, being better resourced.

Mr Dimba said that the budget of the PAIA unit within the SAHRC had never exceeded R150 000. It was obvious that there was a lack of resources. In the first years after the legislation came into force, institutions were required to submit manuals to the SAHRC. In the first two years it received no more than 15 manuals from public institutions. Although there were 800 public institutions, Section 32 reports trickled in at no more than 100 per annum. The SAHRC was reluctant to issue subpoenas that these reports be submitted.

Mr Dithebe asked whether ODAC perhaps overzealously pursued cases regardless of their merits. He wondered how they decided which cases to pursue.

Ms Tilley responded that ODAC acted as a law centre on behalf of communities who asked for information. Many of their cases did not end up in court. After fighting for a number of months to get information, the local authority would often be forced to release information because they had no basis to withhold it. Many cases were simply too basic and did not end in court.

Prof Asmal thought it might be useful if ODAC drafted a statement stating that they felt that more could be done as far as the observation and implementation of the PAIA and that there should be a machinery that could assist people to gain access to information without having to go to court. They could do that immediately so that the Committee could consider it.

Institute for Democracy in South Africa Submission
Ms Judith February, Ms Shameela Seedat and Mr Perran Hahndiek represented the Institute for Democracy in South Africa (IDASA). Ms February stated that IDASA had tried to focus on the general aspects of the institutions that supported constitutional democracy and tried to look at the values that underpinned their establishment and development. IDASA also tried to elevate the context in which these bodies operated. She drew the Committee’s attention to the macro social report, A Nation in the Making, released by the Presidency in 2006. It found that half of the respondents had not heard of the OPP or the SAHRC. She felt that that was a stark reflection of the situation the commissions found themselves in and that the Committee thus also grappled with whether ordinary South Africans understood the workings of the institutions and the way in which they ought to realise their mandates. IDASA had wanted to go beyond being technocratic and legalistic and talking about processes and rules. They saw their submission as the starting point of further engagement with the Committee. Ms Seedat and Mr Hahndiek presented the submission which consisted of three sections addressing issues of oversight, independence and accountability; budgetary arrangements and appointment procedures as well as the way in which Parliament had so far engaged with and responded to the institutions’ reports. Particular attention was paid to the SAHRC, OPP and the CGE.

Discussion
Prof Asmal commented that part of the problem was that all organisations wanted to look at the “sexy” in situations such as the SAHRC and the OPP, forgetting that the Committee needed to consider all of the institutions. He added that IDASA’s submission was very technical and thus they may be asked to make a supplementary submission. He suggested that they be present when the SAHRC appeared before the Committee and that they then prepare another submission.

He commented that there was general agreement that Parliament was the appropriate body to be concerned with the institutions’ budgets. IDASA, like COSATU, however gave no indication of the modalities of how Parliament would decide on the budgets.

Considering the number of committees already in existence, he felt that the suggestion that a special sub committee of the already overextended Justice Committee address the institutions’ budgets, was not realistic. He said that the Committee needed practical assistance and he suggested that IDASA rethink their recommendation.

He referred to IDASA’s suggestion that the review should consider a “prohibition on commissioners holding posts in political parties or even being party members at all”, as “ahistorical”. He felt that if no one who had a political life could be a member of a commission one would be renouncing the whole history of struggle in South Africa and would be excluding large numbers of people who had come through struggles of liberation. He pointed out that despite directors general playing significant policy roles they could belong to political parties. NGOs loved making comparisons with other countries but that as a former academic, he thought it necessary that one had to look at the reality rather than merely at what the book said.

He pointed out that in the United States of America, every one of the security exchange commissioners, who had enormous economic power, were appointed on party political grounds. Each new US President appointed the commissioners to the human rights commission. The commissioners of the most important constitutional body in France, the Constitutional Council, were also appointed along party political lines.

He felt that the submission was too dismissive about the nature of politics. He quoted a Human Sciences Research Council (HSRC) report that said that “political activism ought not to be an automatic disqualifier for one to assume leadership of a Chapter 9 institution. In any case given the political nature of the subject itself, it was highly unimaginable that any human rights activist, regardless of background, would be apolitical.” He suggested that one pondered the difference between being apolitical and being party political.

Prof Asmal requested IDASA to also reconsider the idea that the appointment process should be modelled on that of the Independent Electoral Commission (IEC). Their approach was too abstract. He felt that to take Parliament out of the process but to then make institutions accountable to it, was unrealistic. He pointed out that the Electronic Communications Act (2005) had changed the ICASA appointment system, and it filled him with great foreboding that the Minister could appoint from a list that had been submitted to Parliament. Other systems where appointments were made by Parliament and not the Executive were open and transparent. He added that because so many people were involved, everything done in Parliament, was “messy”, but worked. On this point too he requested IDASA to make a broader submission in which they reconsidered this aspect of their submission.

Mr van der Merwe said that although he heard what Prof Asmal was saying, he still felt that they should strive towards the bodies being independent.

Prof Asmal agreed and pointed out that there were factors that needed to be taken into account but that despite these a body could still be independent. The matter would still need to be reconsidered.

Mr Dithebe noted that while IDASA suggested that the enactment Section 77 (3) legislation would further enhance Parliament’s role as far as money laws were concerned, they still did not seem to trust Parliament’s sincerity in dealing with the appointments. He felt that they wanted to enhance their power by clambering for the greater involvement of civil society formations. He wondered what exactly they were saying about Parliament’s role.

Prof Asmal quipped that the question was really a request for consistency.

Mr Hahndiek responded that Parliament had to be primarily, if not solely, responsible for the appointment of commissioners. The Constitution required civil society to be involved in all affairs of Parliament and when it came to appointments, that public participation had to be structured. It was important that the public participated in the appointment process of Commissioners because communities had to know who they were.

Prof Asmal said that the Committee had had high expectations of some organs of civil society, who took their work seriously. The Committee’s work was not an “artificial exercise” or a seminar where one scored points. Nor was it one of “those awful Oxford Union debates, which the parochial South Africans thought were enormously important”.

The Committee would make recommendations that Parliament could hopefully carry out with enthusiasm. They preferred recommendations that required a minimal amount of constitutional amendment, a minimal amount of legislative change or recommended an omnibus Bill. The Committee wanted to present proposals that could be acted on fairly quickly and looked forward to a more general additional documentation from IDASA.

The meeting was adjourned.