Reforms of Chapter Nine Agencies

IDASA BRIEF

During the constitutional deliberations in South Africa in the early 1990s it was recognized that in order to uphold the proposed constitution a set of institutions to support and maintain democracy was required. Chapter 9 of the Constitution therefore established a range of independent institutions tasked with strengthening Constitutional democracy. Since their inception these institutions have sought, albeit with varying degrees of success, to fulfill their respective roles and mandates. Many of these institutions have struggled with teething problems which include overlapping mandates, duplication of efforts, organizational shortcomings, limited resources and capacity, and lack of public awareness. In light of these difficulties, government decided that a Review of Chapter Nine Institutions would be necessary and in September 2006 a parliamentary Ad Hoc Committee on the Review of Institutions Supporting Constitutional Democracy was established to evaluate the functioning and effectiveness of Chapter 9 institutions. On 21 August 2007 the Review Committee released its final report. This Brief describes: 1) the key issues considered by the Review Committee and 2) the recommendations made by the Review Committee in its 21 August 2007 Report.

THE PARLIAMENTARY REVIEW OF INSTITUTIONS SUPPORTING DEMOCRACY IN SOUTH AFRICA (ISDs/ CHAPTER NINE INSTITUTIONS)

21 August 2007

A. THE REVIEW PROCESS

During the constitutional deliberations in South Africa in the early 1990s it was recognized that in order to uphold the proposed constitution a set of institutions to support and maintain democracy was required. Chapter 9 of the Constitution, 1996 therefore established a range of independent institutions tasked with strengthening Constitutional democracy. These are the Public Protector; the South African 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 and the Electoral Commission. They collectively have the potential to act as a check on the abuse of power, to hold government accountable for financial and administrative decisions, and also to ensure that human rights are respected and promoted.

Since their inception these institutions have sought, albeit with varying degrees of success, to fulfill their respective roles and mandates. Many of these institutions have struggled with teething problems which include overlapping mandates, duplication of efforts, organizational shortcomings, limited resources and capacity, and a lack of public awareness[1]. In light of these difficulties, the government decided that a Review of Chapter Nine Institutions would be necessary, and in September 2006 an Ad Hoc Committee on the Review of Institutions Supporting Constitutional Democracy was established to evaluate the functioning and effectiveness of ISDs and to make recommendations.

The Review Committee, headed by Professor Kader Asmal, was intended to be a non-political body with only five of its ten members drawn from the ANC. The Committee’s Terms of Reference were broad and included an examination of the relevance of ISDs thirteen years into democracy, the institutional governance and funding arrangements of ISDs as well as salary matters, rationalization, and the relationship between ISDs and organs of state. Interested parties were invited to submit their views on the issues raised in the terms of reference, and over the last few months, the ISDs[2], several civil society organizations, government departments and various stakeholders have submitted their views and engaged with the Review Committee. The process culminated in a 267 report which the Committee tabled into the National Assembly on 21 August 2007 for further discussion and action.

The Report of the Ad Hoc Committee is of utmost importance –: not only does it envisage constitutional and legislative change to the current framework relating to ISDs, but also seeks to improve the visibility, accessibility and dynamism of ISDs so that they can fulfill their potential as watchdogs of democratic process. It remains to be seen whether the recommendations will be adopted by the relevant role-players.

This Brief summarizes:

1. the key points considered by the Review Committee (as set out in the term of reference for the Review) and the

2. recommendations made by the Review Committee in its 21 August 2007 Report.

B. THE TERMS OF REFERENCE AND THE COMMITTEE’S FINAL RECOMMENDATIONS

The Review Committee was mandated to:

1 )“Assess whether the current and intended Constitutional and legal mandates of these institutions are suitable for the South African environment, whether the consumption of resources by them is justified in relation to their outputs and contribution to democracy, and whether a rationalisation of function, role or organisation is desirable or will diminish the focus on important areas”(2a)

Essentially, the issue at the heart of this term of reference was whether or not the number of ISDs needs to be reduced to avoid duplication of work and overlap of mandates. At the birth of the new South Africa, it was thought by many to be beneficial to have separate institutions to deal with the varying aspects of human rights, to make sure that focus was maintained on many different areas at once. Now, however, thirteen years after the establishment of democracy, the question was raised whether it may be beneficial to merge the human rights instruments into one, in light of concerns for efficiency and streamlining human rights protections. Costs are, of course, also a consideration, and some feel that it is wasteful of resources to maintain separate institutions. As an example, the Department of Justice and Constitutional Development “highlight[s] … the duplication and overlap of functions of the various Chapter 9 Institutions” and insists that “despite attempts made to address this issue, duplication still occurs.”[3] The AIDS Law Project, specifically suggested the merging of the Commission on Gender and Equality into the SAHRC in order to ensure that “the dedicated focus on gender equality is maintained, the issue of gender equality is addressed as an integral part of all human rights work, and unnecessary duplication is avoided”. On the other hand, though, some of the ISDs argued that “what on the face of it may appear to be an overlap may not actually constitute an overlap, especially if one has regard for the original mandate and rationale behind setting up a specific institution.”[4] The PanSALB, for instance, argued that its mandate is completely unique from any other body, but that the problem has been achieving visibility and publicity.[5]

RECOMMENDATIONS

The Committee, recognizing that all human rights are interdependent and that the mainstreaming of specific human rights issues may bring them to the forefront of the field, came to the conclusion that the Gender Equality Commission, the Youth Commission, the South African Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious (together with the PanSALB), and Linguistic Communities be collapsed into one super-institution called the South African Commission for Human Rights and Equality. The reasoning behind their recommendation included avoiding duplication of work amongst the currently-operational institutions, increasing administrative efficiency, enhancing public accessibility, pooling capacity and resources, and facilitating interaction with Parliament. In the words of the report, “a single organization will be a strong and authoritative champion for equality and human rights. The new body will incorporate the expertise on specific areas of human rights, now spread across bodies, and will thus be better able to respond to the myriad human rights challenges in South Africa.”[6]

2)“Reviewing the appropriateness of the appointment and employment arrangements for commissions and their secretariats with a view to enhanced consistency, coherence, accountability and affordability”(2b)

Clearly the appointment of suitable and independent members to these ISDs is essential to their function, which includes support of democracy through impartial monitoring and reporting. A number of submissions sought greater uniformity in the appointment procedure, including provision for “uniform removal and appointment procedures for all Commissioners, or their equivalents,”[7] Some insisted that “objectively stated criteria for appointments of Commissioners must be specified in legislation,” while others felt that the institution should have the authority to appoint whom they wish” [8]. In addition to shortcomings in appointment procedures, the absence of coherent employment arrangements for both commissions and secretariats was raised as a matter of concern, and a number of submissions argued for greater uniformity in hiring and remuneration standards[9]. Specifically, the existence of “disparities between the respective Commissions and the Public Protector in terms of both remuneration and conditions of service” was said by some to present difficulties. In a similar vein, it was submitted that employees of the Commission on Gender Equality were often paid less than those at other ISDs which “gives one the impression that the other institutions are more important itself.”[10]

RECOMMENDATIONS

The Committee made several recommendations with regard to the appointment and employment of Commissioners and staff among ISDs. In terms of appointments, it was recommended that Parliament enlarge the pool of applicants by soliciting underrepresented groups and by advertising on radio and in print, as well as by using past experience with the functions of the institution as a focal criterion for selection. It was also recommended that Commissioners who hold high political office resign that office when accepting a commission, and that any commissioner choosing to run for political office resign his or her commission prior to doing so. The Committee recommended the staggering of appointments in order to ensure continuity of the commissions’ work, as well as more timely appointments. It was further recommended that a uniform procedure be established for appointing chairpersons, as there is no such standard procedure at the moment. In order to increase public participation in the nomination and appointment process, the Committee suggested that the shortlists of candidates for Commissions be published for public comment. Also notably, it was suggested that the role of ministers in appointing commissioners be eliminated entirely (referring to ICASA, PanSALB and Commission for Promotion and Protection of Cultural, Linguistic and Religious Communities), and that Parliament’s involvement in the process be augmented. Finally, the Committee made a list of five basic suggestions:

(a) The Acts elaborating appointment and dismissal procedures should be reviewed […];

(b) Members of the National Youth Commission should not be restricted to youth […];

(d) The National Assembly should consult civil society and other role players to define and elaborate the role of civil society in the recommendation procedures; [and]

(e) The National Assembly must establish mechanisms to ensure that the procedures for the replacement of commissioners are carried out efficiently […].[11]

3) “Reviewing institutional governance arrangements in order to develop a model of internal accountability and efficiency”(2c)

ISDs must have coherent internal frameworks to ensure their smooth and efficient functioning. Amongst various matters, the Review Committee examined the systems currently in place to manage potential tensions between commissioners (who are appointed by Parliament) and members of the secretariat of these institutions (appointed by the executive). The absence of an effective internal complaints mechanism was raised as a concern by some- for example, the resources for ISD members facing problems within their own institution were found to be lacking by the DoJCD, which recommended the establishment of “a proper complaints mechanism for problems encountered in these Institutions.”[12]

RECOMMENDATIONS

The Committee recommended establishing clearer lines of authority within and among ISDs, to clarify the demarcations between functions and to eliminate overlap and internal conflict. It also suggested a standardized code of conduct for ISDs, but did not elaborate on what the code should contain. Framework legislation to standardize remuneration procedures is also recommended, and further insists on the amendment of the Public Finance Management Act to provide a more standardized and coherent framework for disclosing and evaluating conflicts of interest within ISDs.

4) “Improving the co-ordination of work between the institutions covered in this review, as well as improving co-ordination and co-operation with government and civil society”(2d)

ISDs, because of the inherently-related nature of their work, often encounter problems with the coordination of their work, and seek more support in their work from either government or civil society. Some ISDs already have mechanisms to ensure this sort of collaboration, and “make use of [their] interactions with external role players to assess the effectiveness and impact of [their] work.”[13] However, almost every submission, uniformly, recommended increased collaboration and improvement of relations between ISDs.[14] For the most part, though, the focus was on increased cooperative collaboration through trainings “on the complementary roles of the institutions,”[15] and an emphasis on the idea that “the strategic plans of these bodies should indeed be the subject of intense discussion, with civil society, organized religious groups, state departments, and other chapter nine bodies and Parliament.”[16] This, it is argued, would hopefully encourage Parliament and the Executive, in addition, to take the recommendations given to them by ISDs more seriously, as has been a complaint of many ISDs to this point.

RECOMMENDATIONS

Clearly, the merging of four human rights bodies into one (the SACHRE) is meant in part by the Committee to facilitate interaction between previously-separate institutions. For the remaining distinct ISDs, however, the Committee recommends the establishment of a Unit on Constitutional Institutions and Other Statutory Bodies in the Office of the Speaker, which will be responsible for coordinating the interaction between ISDs themselves and between ISDs and Parliament. Also, the improvement of legislation (or the passage of new legislation) dictating clear lines of authority between and among ISDs and Commissions is essential to coordinating their work, according to the report.

5) “Recognising the need for a more structured oversight role by Parliament in the context of their independence”(2e)

ISDs conduct extensive research, possess technical expertise and exercise specialized functions such as monitoring human rights legislation and auditing public accounts. These characteristics suggest that they have an important role to play in assisting Parliament in its oversight function over the executive. ISDs produce reports which are submitted to the National Assembly and may contain recommendations. There was a degree of concern among ISDs that their recommendations, which by their nature are non-binding, are not receiving appropriate attention. In this regard the Review specifically concerned itself with identifying whether it was the responsibility of Parliament or the ISDs to follow up on the implementation of the recommendations. A number of submissions also identified the effectiveness of interaction between ISDs and Parliament as an ongoing challenge. Some felt that the establishment of a dedicated standing Parliamentary Committee for ISDs is needed, in order to fully allow Parliament to focus on ISDs appropriately. A further option included “accelerating the efforts of the Oversight Task Force,”[17] but the uniform conclusion reached is that clearer and more transparent lines of accountability need to be established.[18]

RECOMMENDATIONS

The Committee found that parliamentary oversight mechanism are currently inadequate.To increase accountability to the National Assembly, the Committee recommends that portfolio committees responsible for receiving and reviewing ISD budgets each year should do so carefully and thoroughly, and to take reports from ISDs into consideration more than in the past. The Unit mentioned above (the Unit on Constitutional Institutions and Other Statutory Bodies in the Office of the Speaker) is meant to facilitate this sort of oversight by aggregating reports and materials from all ISDs in a single source, thereby allowing Parliament to see a more coherent and complete set of data and submissions from each institution. The Committee also suggested the strengthening of oversight portfolio committees, including giving them the resources and authority to hire experts and staff, increasing budgets, facilitating access to technology, developing specialization and in-depth knowledge among members, creating guidelines for committees, making available appropriate facilities for meetings, and establishing subcommittees. Accountability standards legislation is also recommended, but only after long and careful consultation with each ISD.

6)“Reviewing the funding models of the institutions, including funding derived from transfers and licences and other fees, with a view to improving accountability, independence and efficiency”(2f)

At present, funding arrangements for most ISDs are primarily in the hands of governmental departments. Concerns have been raised both about the adequacy of funds and the procedures employed to determine allocations. Some submissions argued that because government departments play a major role in budget allocation, it is not theoretically possible for ISDs to be completely independent in their monitoring of government. In this regard, certain submissions suggested that there should be greater parliamentary involvement in the funding process to ensure independence, as is implied in the Constitutional Court case NNP v. SA.[19] Other submissions took the view that current funding arrangements, including levels of budgetary oversight exercised by the executive and parliament, were adequate to ensure that [ISDs achieve their] targets as per mandate.”[20]Issues relating to the receipt of funding from external sources, and the question of independence in relation to the private sector were also raised[21].

RECOMMENDATIONS

The Committee recommended the removal of ISD budgets from under government department budget votes, and their placement in Parliament’s Budget vote to increase interaction with Parliament and to eliminate conflicts of interest with government. It also reiterated the need for the Standing Committee on Public Accounts to review ISDs thoroughly and effectively, and recommended that the entire budget process for ISDs should be negotiated with and by the National Treasury with ample opportunity for each ISD to have input in the process.

Shameela Seedat and Amanda J Wall

IDASA - Political Information and Monitoring Service
[email protected]

[1] It has often seemed as if the public is often unclear as to the precise nature and purpose of these institutions. Some however are critical for a transparent and accountable government. The Auditor-General's office for example fulfills a crucial role in ensuring fiscal accountability. His office has proved an essential instrument in developing sound financial practices and facilitating legislative oversight over government expenditure. The Independent Electoral Commission too, has served the country well. For it has ensured free and fair national and local elections and has established its legitimacy in the eyes of ordinary citizens which is well-documented. Conversely, the recent and very public fall-out between the Public Protector, Lawrence Mushwana and his deputy Mamiki Shai showed how crucial effective institutional governance within Chapter 9s is.

[2] It is also worth noting that, at the very outset of the review process, the Committee requested each ISD to respond to a standard list of questions relevant to the review.

[3] “Preliminary Submission by the Department of Justice and Constitutional Development on the Review of Institutions Supporting Democracy.” Page 43. The Chairperson of the Parliamentary Committee on Justice and Constitutional Development, in his own submission, goes so far as to suggest that “there is a natural flow between the different rights in the Bill of Rights and the establishment of a single or dual body … will facilitate the better expression of the mandates of these ISDs. (Chairperson of the Justice and Constitutional Development Portfolio Committee. “Submission of the Chairperson of the Justice and Constitutional Development Portfolio Committee to the Ad Hoc Committee on the Review of the Institutions Supporting Democracy.” Page 4). The AIDS Law Project, specifically, suggested the merging of the Commission on Gender and Equality into the SAHRC in order to ensure that “the dedicated focus on gender equality is maintained, the issue of gender equality is addressed as an integral part of all human rights work, and unnecessary duplication is avoided” (“SUBMISSION TO THE AD HOC COMMITTEE ON THE REVIEW OF STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY.” Accessed 20 August 2007. http://alp.org.za.dedi20a.your-server.co.za/images/upload/ALPsubmissionchapter9s.doc. Page 7).

[4] “Response by the Public Service Commission to the Questionnaire of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions.” December 2006. Page 16.

[5] Pan South African Language Board. “Ad Hoc Committee on Review of State Institutions Supporting Constitutional Democracy.” 31 January 2007. Accessed 16 August 2007. www.pmg.or.za/viewminute.php?id=8614

[6] “Report of the Ad Hoc Committee on the Review of Chapter Nine and Associated Institutions.” A report to the National Assembly of the Parliament of South Africa. 31 July 2007. Page 38.

[7] Chairperson, 3.

[8] Some insisted that “objectively stated criteria for appointments of Commissioners must be specified in legislation,” (Chairperson, 3.) while others felt that the institution should have the authority to appoint whom they wish (Chohan, F. “Further Submission by Mrs. F. Chohan to the Ad Hoc Committee on the Review of Chapter Nine Institutions (23 April 2007).” Page 11).

[9] It has also been said that for instance, in the PSC, “while the constitutional processes for the appointment of PSC commissioners are designed to ensure the independence and impartiality of the PSC as a whole, there are no corresponding constitutional or legislative provisions that ensure the independence and impartiality of the DG.” See PSC, 22

[10] DoJCD, 21.

[11] “Report,” 2007:25-26.

[12] DoJCD, 23. According to the PSC, however, “outcomes [are monitored] through internal monitoring and evaluation systems that focus on the implementation of its recommendations” (PSC, 24). Internal facilitation of functioning cannot be underestimated in its importance to the overall capacity of ISDs, and will likely be addressed in some way by the Committee.

[13] PSC, 24.

[14] Some are going so far as to recommend “legislation or other instruments clarifying the relationship with government departments, refining and defining the nature of the independence and accountability of the ISD and indeed the internal lines of authority and accountability within these bodies” (Chairperson, 3).

[15] Seedat and Hahndiek, 32.

[16] Chohan, 5.

[17] Seedat and Hahndiek, 32.

[18] Even ISDs themselves fell that “there is a need for a formalised interaction between the speaker’s office, the committee’s section and the Parliamentary unit[s] … to coordinate and arrange for the briefings … Some briefings take place on an annual basis and are known at the beginning of the Parliamentary year. Dates could be arranged well in advance in order that there can be better planning” (SAHRC. “South African Human Rights Commission Report – Review of Chapter Nine and Associated Institutions: Response to Questionnaire.” Page 23).

[19] New National Party of South Africa v Government of the Republic of South Africa and Others

CCT9/99. 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC).

[20] SAHRC, 46.

[21] Chohan, 7.