Report of The Joint Budget Committee On Chapter 13 Of The South African Human Rights Commission Report

The Joint Budget Committee, having interacted with the report; and meeting with the South African Human Rights Commission and the National Treasury, reports as follows:

1. Introduction
The Human Rights Commission outlined its processes and the challenges it has faced since starting its work in 1997. Initially, the Commission sent questionnaires to all three spheres of government. However, the response rate was poor and most Departments did not respond to Commission’s the questionnaires.

This was the first time that the Commission was appearing before a Committee, although they have been sending reports to Parliament as required by the Constitution. As the Commission’s Constitutional mandate is to assist Parliament in exercising its oversight function, the commission was bothered by the lack of response from Parliament, except for letters of acknowledgement of receipt of the report. The Commission believes that this process has the potential to contribute to a more effective evaluation of social and economic rights.

Departments were made aware that is a constitutional mandate and that future reporting is critical. They were also given an opportunity to make inputs that might assist in improving the quality of the questionnaires. This was done in an effort to increase the effectiveness of the Commission’s monitoring instrument, thereby improving the process.

In 1998 and 1999, the Commission subpoenaed many departments to provide information in terms of the South African Human Rights Commission Act. This proved to be a costly exercise to the Commission. Thus, in the fourth round, leading to this particular report, the Commission did not subpoena any departments, but rather tried to encourage them to respond. The response was very slow, as indicated by the fact that the report covers two, instead of one financial year.

Initially, the Commission monitored progress by enquiring about things such as the number of houses built, etc. and asked departments to provide benchmarks or indicators that they would themselves use to assess their own impact or performance. In 1997, it sent protocols to Local Government, but as only three Metros replied, it stopped sending to municipalities. One factor contributing to this is that the Commission did not have capacity, as five to seven people could not monitor National, Provincial, as well as Local Government. In the process leading to this report, however, the Commission sent questionnaires to all Metros but did not get a satisfactory response. Some of the responses indicated a lack of understanding of constitutional processes. The Commission was unable to follow up with municipalities due to time constraints.

In this regard, the National Treasury acknowledged the constitutional mandate of the Human Rights Commission as well as its important role. However, the Treasury feels that there is a need to clarify how the Commission fits in, given the oversight role of the Legislatures and Parliament. Duplication should be avoided in this regard as it weakens the accountability process.

The Treasury also noted that Chapter 13 of the Human Rights Commission Report does the following:

- Examines the constitutional role of Treasuries with regard to policy, programmatic & legislative measures.
- Challenges treasuries on their role in meeting delivery requirements of economic and social rights of South Africans.
- Comments on nominal and real values in budget allocations from 1999/00 to 2001/02.
- Examines the role of treasury in the budget process and whether it ensures realisation of economic and social rights.

2. Constitutional Mandate Of The Treasury And The Human Rights Commission
Section 184(1) of the Constitution mandates the Human Rights Commission to monitor and assess the observance of human rights, including social and economic rights, in South Africa. This is to be done in view of both the historical context in which the South African Constitution was adopted, and the disparities around the enjoyment of social and economic rights and challenges that face the Government in ensuring that these rights are meaningfully enjoyed by all South Africans.

Section 184(3) of the Constitution empowers the Human Rights Commission to request information from relevant organs of state on measures that they have instituted in order to give effect to the socio-economic rights in the Bill of Rights.

The National Treasury stated that Treasuries are covered in Chapter 13 of the Constitution, but the report shows a lack of understanding of Treasuries and their duties and responsibilities. For instance, Treasuries do not make budget allocations. These are made by Cabinet and various budget structures. Moreover, Treasuries allocate funds to departments to effect these rights, but do not effect the rights themselves. For example, Treasuries provide funds for education, they do not deliver education. Therefore it is not up to them to come up with policies for education. Portfolio Committees should get involved and bridge the gap on this issue, as their respective Departments are accountable to them.

3. Monitoring Instrument
When monitoring social and economic rights, the SAHRC takes account of the relevant constitutional provisions. The Commission asks questions regarding the following:

- Departments are required to provide any policy measures they have taken into give effect to a particular right and how these measures comply with section 7(2) of the Constitution.

- Legislative measures that have been put in place by the government to give effect to the right(s) in question.

- Following the decision of the Constitutional Court in the Grootboom judgment, the Commission also began enquiring about how these measures give effect to the rights of the poor, vulnerable and marginalised sections of our communities. The Commission stated that it hardly ever gets any answers to this enquiry.

- Indicators that determine the impact of policy and legislative measures instituted by departments. In this regard, the Commission relies largely on the National Election Plans for Human Rights, which is a policy that was adopted by Cabinet and entails a plan as to how the Executive sees itself in giving effect to Human Rights. The Commission uses these action plans to enquire about indicators from Government Departments.

South Africa does not have an action plan for human rights anymore as the last one expired. Besides effecting issues of monitoring and reporting in government, an action plan will enable the government to meet its obligations to the United Nations.

The issue of qualitative versus quantitative information is also important. Budget figures need to be supplemented with good qualitative information about what is actually going on in Departments. Both the Human Rights Commission and the Financial and Fiscal Commission have taken the initiative to request a range of indicators from Departments. However, the Commission is concerned about government’s capacity to provide these indicators in the short term. This issue highlights the fact that strategic planning and service delivery planning are key to successful implementation.

Participation is also vital and the strategic planning process is an early point at which participation from a broader range of stakeholders could occur. Comments and improvements on strategic plans could be important in improving service delivery and integration amongst Government Departments.

4. Reporting By Departments
The Public Finance Management Act, 1999 (Act no. 1 of 1999) and other processes regulating financial reporting and other financial matters in government have made the work of the Commission easier by effecting improved reporting standards. However, some Departments struggle to comply with the PFMA, (e.g. in terms of submitting financial statements on time and providing up to date and accurate information). This not only affects the Human Rights Commission, but other structures such as the Auditor General.

The Commission is now busy preparing for the next report, to be launched in December. However, the unavailability of adequate information systems from government departments was once again a problem. As a result of the lack of information, the Commission has to rely on other documents such as the Auditor-General’s Report. This is problematic because the Commission should be able to work independently and not rely completely on other sources. This affects the credibility of the process.

The Committee indicated that it is in a good position to exert pressure on Departments to submit documents to the Commission. However, frequent interaction is required between the Committee and the Human Rights Commission. The constraining factor at the moment is time because the Committee is approaching the end of its term. Despite this, however, the Committee would like to have a solid foundation in order to fulfil its own mandate and increase its effectiveness in the next term.

The National Treasury highlighted the difficulty that Departments do the same things but classify them differently and, therefore, report them differently. Departmental annual reports contain financial statements, the Auditor General’s reports, but they have nothing on non-financials, such as performance. Portfolio Committees should insist on this information so as to counter non-performance.

Better information is needed from the weakest provincial governments, but they have capacity problems and cannot always provide relevant information, especially information relating to non-financials. The Human Rights Report does not appreciate such difficulties. These and other kinds of resource constraints do not come up enough in the report. Although they are acknowledged, they are later overlooked. The National Treasury added that it is also struggling to get information from Departments. For example, Departments are not usually aware of whether they are going to underspend even nine months into the financial year. They only become aware at the last minute.

The Treasury also feels that the report should take into account the fact that South Africa is a developing country and capacity problems are very real in all developing countries.

5. Methodology
The National Treasury felt that the data collection methodology is severely limited – questionnaires generally get unreliable figures. It also noted that the figures through the document are not sourced and differ from the figures that the Treasury has. The Treasury suggested that the Commission should use existing budget documents. Moreover, existing survey methodology lacks validation. Figures in municipalities change every year and it is difficult to keep track, especially for the poorest municipalities.

Another issue related to the analysis of nominal and real values. There is no thorough analysis and validation in dealing with this. No point on performance and outputs has been looked at in this regard.

The survey method of the Human Rights Commission is problematic, as it would take two to three people three weeks to complete, if they were to do justice to it. This might be problematic in provincial treasuries that lack capacity. Departments are struggling to fill the Human Rights Commission’s protocols as they are time consuming and repetitive. Also, Departments provide the same information to legislatures and other monitoring structures and the work thus becomes repetitive.

In addition, the figures provided are inaccurate and cannot be compared between departments. Furthermore, the Human Rights commission cannot assess all departments to perform every function.

The Human Rights Commission acknowledged the limitations of its process and that much needs to be done to improve it. The Commission is also aware that the report has been publicly rejected by both government and civil society, but highlighted the fact that it gets its information from government departments as per its mandate.

The Commission raised issues of its resource constraints (both human and capital), as it relies on donor funds. The Commission lacks both capacity and financial backup, as it cannot employ researchers on a permanent basis and has a high turnover rate. This is a major concern as it affects the credibility of the process.

The Committee acknowledged that some aspects of the report indicate a weakness in the professionalism of the commission and its credibility. If the quality of the commission’s research and analysis is improved, it will impact on the Commission’s credibility and the extent to which people take its report seriously. Professionalism is very important in this regard.

Timely reporting is important and the Commission has been contemplating doing away with questionnaires, and instead focusing on influencing departments, when they prepare their annual reports, to ensure that the annual reports provide enough information to enable the Human Rights Commission to carry out its constitutional mandate. This would decrease a lot of paperwork as the process is presently time consuming and is hampered by the lack of capacity and resources, especially at Local Government level.

6. Budgetary Matters
Enquiries around the budget relates to issues regarding resources that are allocated to departments in order to achieve their Constitutional mandates with regard to social and economic rights, allocations to various programmes and activities of departments, shortfalls in the budget, and how budget inadequacies impact on the activities and ability of the department in giving effect to those Rights.

Moreover, the Commission received figures with no non-financial indicators and was thus not able to determine progress in terms of the realisation of social and economic rights. The Commission noted real budget increases for housing in all provinces, and real increases in some provinces for other social and economic rights.

The Commission referred the Committee to page 108 of the report, which states that the Eastern Cape, Northern Cape and Limpopo Departments of Health allocated nothing to primary health care, and stressed that it would have been beneficial to the country if the commission’s report has been taken into consideration earlier. For example, the commission has been reporting on problems within the Mpumalanga Department of Health since 1997.

Budgeting for human rights is arguably the most important issue as that is where the heart of delivery is. This issue, however, has brought tensions between the Commission and the National Treasury pertaining to what exactly informs the budget process. The relationship between Treasury and the Commission hit an all time low two years ago when the Commission subpoenaed the Treasury, leading to a decision by the Commission not to send questionnaires to the National Treasury for the forthcoming report and to rather deal with budgetary measures Departments.

Budgeting is not always done from a human rights perspective. However, it is important to recognise that budgeting is not just about money, but should be informed by the priorities and policies of a country. The South African Constitution, in particular, is very clear about the fact that resources must inform social and economic rights obligations.

The commission observed that despite the Monthly Financial Reporting and Early Warning System, prescribed by the National Treasury, there were still some problems relating to over and under expenditure, especially underexpenditure. With regard to underexpenditure, it was stated that the National Treasury allows a maximum of 10% of the budget. While this is understandable from a budgetary perspective, it is not always understandable from a human rights perspective. Thus, the Human Rights Commission has always asked departments whether there was underspending, what led to it, what was its impact, and what measures have been taken to address this. Nine years later, the Human Rights Commission still gets the explanation of lack of capacity from departments.

The Commission also feels strongly that resource allocation needs to be sufficient in order to progressively meet social and economic rights.

7. Participation and Intergovernmental Relations
The budget process has been improving as the years go by, and there are now clusters that were established in order to widen participation. These include the Budget Council, Budget Lekgotla and Budget Forum. These structures are accountable to Legislatures and were established in an effort to improve participation and transparency in the budget process. The National Treasury recognises the importance of making the budget process as consultative as possible. In addition, the Treasury produces booklets but it is a challenge to get Committees to read them and go beyond reading to scrutinise them.

The Treasury was also concerned about whether government is held accountable as a whole or as individual departments. While some findings are useful, the Commission needs to recognise importance of collective responsibility in Government. For instance, it has to recognise the appropriate role of Treasuries in promoting economic and social rights.

One of the focal points of the Treasury was intergovernmental relations. The nature and functions of the three spheres of government plays an important role in the allocation of funds. Section 214 of the Constitution divides nationally raised revenue between the three spheres of government and takes into account the functions and fiscal capacity of each sphere. National government cannot determine the budget of provincial departments or municipalities.

The Treasury found that understanding of the division of powers between the spheres of government is a problem e.g. the provision of water is not a function of National, or even Provincial Treasuries, but Local Government. The National Treasury also stated that it cannot dictate the spending of other spheres of government, they do their own spending and decide on the division of their own revenue. It is, therefore, important not to hold the wrong sphere of government accountable.

8. International relations
South Africa is party to a number of international human rights instruments. The Commission, therefore, takes into account the relevant provisions on regional and international laws pertaining to economic and social rights. The Commission stated that despite having problems internally, South Africa has earned international admiration for its work around socio-economic rights, including monitoring mechanisms. The Commission sees its role in monitoring human rights as important and expressed its gratitude at being given an opportunity to present to the committee and to see how the two structures can best work together.

South Africa’s history regarding human rights budgeting is reasonably good, and, on a scale of weak to strong, South Africa is moderate. An example of a country that is strong on budgetary matters is Poland, which is very strong in terms of participation and transparency in the budget process. The Polish Parliament has a budget research office to assist the Parliament in its technical work.

9. Recommendations
- There is a need for a structured relationship between the Committee and the Human Rights Commission as the Commission fits perfectly into the Committee’s mandate. In determining this, the Committee should consider the inputs of both the National Treasury and the Human rights Commission.

- The Human Rights Commission needs to understand more about the committee’s workings if the two structures are to create a meaningful working relationship. Moreover, the two structures have a potential to compliment each other in different ways and this could prove beneficial. However, reporting is a concern because the two structures may address issues in different ways as they go along.

- The Budget Committee does not really concern itself much about under-expenditure and over–expenditure, but rather about outcomes, the realisation of social and economic rights and the realisation of objectives. The Committee agrees that the budget is the primary instrument of objective realisation of policies because as much as the human element is important, if funds are not available then human resources will be lacking.

The Committee acknowledged the constraints of the Commission with respect to the amount of work required from it and the unavailability of human resources, and suggested that independent donor funds could prove useful to the commission and could lead to financial relief. The Commission can then get quality researchers to work with it using those donor funds effectively. However, the Commission should ensure that the funding is not for too short a period.

The Commission’s support in terms of oversight is important to the Joint Budget Committee and Parliament as a whole. It is thus crucial for the commission to be effective. The Human Rights Commission’s contribution to budgetary matters represents the committee’s own responsibility with regard to monitoring expenditure by different departments and ensuring that South Africans get value for money. It is important to achieve a balance between qualitative reporting and quantitative reporting.

The Human Rights Commission’s policy understanding capacity is important. For example, realisation is not about how many houses have been built. It is the extent to which people have adequate shelter. While a Department might measure itself in terms of how many houses it has built, people would rather depend on whether they have adequate shelter, security of tenure.

Some of the issues that were raised during the meeting were issues of strategic planning. In order to achieve the desired goals departments should be pressed to include human rights in their strategic plans so that there is a synopsis in their strategic plans with regard to these rights. The Committee also noted that the information that is received is not verified and suggested that it would be better if information were backed by practical examples of what is taking place. Although the Committee is aware of the capacity challenges facing the Human Rights Commission, it still feels that this would go a long way in making this report more realistic and presenting a clearer picture of what is going on.

The Human Rights Commission recommended, in its conclusion, that Parliament should have powers to amend the budget and should use them more. In explaining this to the Committee, the Commission responded that this involves a lot of implications and although the Commission considers it important, it has not worked around it yet.

One of the recommendations included in the National Action Plan is the consideration of having a unit in every department that could gradually monitor every department with regard to human rights issues. This would also require all departments to have a human rights officer. The Action Plan also requires the formation of a national consultative forum, whereby each department is represented by two people to monitor how human rights are being effected. This will be done in order to ensure that the Human Rights Commission will have more credible information around human rights measures.

The National Treasury feels that the overall accountability system should be improved in order to get better performance and that the Human Rights Commission could use information from the National Treasury Information System, in order to understand the system better, which would assist in achieving better monitoring mechanisms. Presently, the commission does not does not take account of key performance documents in National and Provincial Government. Portfolio committees should play an important part in this and urge departments to provide the necessary information. Future challenges of the government include:

- Better formulation of service delivery objectives, outputs and targets.
- Better use of existing documents and structures such as legislatures, SAHRC and the public.
- Improving monitoring and evaluation systems.
- Strengthening the accountability cycle.
- Aligning strategic plans, budgets and annual reports.
- Performance agreements of line-managers.
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There is a need to hold government accountable both as a whole (through portfolio committees) and individually. It is useful to query departments about large rollovers at some point and this is what the Human Rights Commission is attempting to do.

The National treasury should meet with the Human Rights Commission in order to add substance to the report. The Committee stressed the importance of this interaction and acknowledged that although the independency of the Human Rights Commission is respected, Treasury can assist it in this regard. Furthermore, it would be beneficial for the Human Rights Commission to use information on this, thereby enriching their processes. The Committee itself should look at the role of Parliament in taking these processes forward.

The Committee anticipated a more structured relationship with the National Treasury and highlighted that the Human Rights Commission is doing an important job that covers all departments. The Committee needs to look at the role of Parliament in these processes. The mechanisms are there but there is a need to strengthen them. It is important to formulate an action plan with recommendations and also find out what the Committee can do before the end of its term.

The Committee undertook to try and have more organs’ engagement, as this will enrich the committee’s own process and also assist in a number of matters that have been raised. The only real constraint to the Committee is time since it is approaching the end of its term, but in future the committee hopes to have more time to deal with the report and other matters more effectively.
The commission also highlighted that this is not just a Human Rights Commission process, but a national process and that improving it would benefit all South Africans.

10. Conclusion
Parliament and the Legislatures need to be more militant on outputs and focus on performance. Portfolio Committees should call their respective departments to account and insist on details. The issue of more funds and poor outputs has to be carefully scrutinised.

One of the most important things that emerged from the meeting was that the government’s systems are poor in terms of giving outputs, including the Human Rights Report. There is a need to focus on outputs so as to assess how resources used so that Government knows exactly what it is measuring.
The Committee feels that that Treasury cannot just ignore the issue of how the money it allocates is used. There should be constant interaction between the three spheres of government, and national government takes precedence over the others in ensuring that policy is implemented. An important factor to consider is how to get stakeholders to use information that is available.

The process of engaging with the National Treasury and the Human Rights Commission proved to be of great value and has highlighted the weaknesses in the system. The Committee identified a need to consider its role in this process, to look at the weaknesses of the parliamentary process, and brainstorm the path ahead in respect to the budget process and evaluating the outputs of departments. It is important to give guidelines to the new Committee and to highlight the areas of responsibility of the Committee in the Parliamentary System. It is also important to consider if the committee is really capacitated to do what it should be doing and if it needs more support staff such as researchers.