state-institutions-supporting-democracy

State Institutions which support Constitutional Democracy

Introduction
The Public Protector
South African Human Rights Commission (SAHRC)
Commission for Promotion & Protection of Rights of Cultural, Religious & Linguistic Communities
Commission for Gender Equality (CGE)
Auditor-General
Electoral Commission
The Independent Authority to regulate Broadcasting
Truth and Reconciliation Commission
Commission on the Restitution of Land Rights
Other structures:
    The Constitutional Court
    Independent Complaints Directorate (ICD)
    Commission for Conciliation, Mediation and Arbitration (CCMA)
    National Prosecuting Authority (NPA)
    Judicial Service Commission
    Financial and Fiscal Commission
    Public Service Commission
    Pan South African Language Board (PANSALB)
    National Youth Commission
    Heath Special Investigating Unit

Introduction

The Constitution provides for a constitutional democracy and lists the rights to which the people of this country are entitled. To give substance to these Constitutional rights, independent institutions have been established to promote rights and to strengthen constitutional democracy.

Chapter 9 of the Constitution states that a number of "State Institutions Supporting Constitutional Democracy" be provided for. 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
  • The Electoral Commission
  • The Independent Authority to regulate Broadcasting

The task of these institutions is to promote and protect those rights within the Bill of Rights which fall within their particular area. They are impartial, independent and subject only to the Constitution and the relevant laws made in terms of the Constitution. They must exercise their powers and perform their functions "without fear, favour or prejudice".

The National Assembly is responsible for recommending commissioners to each commission, and the President appoints them. The Constitution guarantees them independence from organs of state. The process of appointment is transparent and open to the public.

The relevant Commissions can be consulted when respective rights have been violated. They have extensive powers which, in some cases, include searching premises and attaching and removing appropriate articles/ documents as well as to subpoena people to appear before them. They have to report each year to the National Assembly on their activities and the achievement of their goals.

The Public Protector

The Public Protector protects citizens from unfair treatment by the state and its officials as well as from inefficient administration and dishonesty with respect to public money.

The Public Protector can investigate central and provincial government and local authorities. This includes all state department employees such as police officers, pension payout clerks or electoral officers. It can also investigate corporations or institutions performing a public function, such as Eskom and Telkom as well as statutory councils such as the Human Sciences Research Council and the Council for Scientific and Industrial Research.

South African Human Rights Commission (SAHRC)
The South African Human Rights Commission (SAHRC) is responsible for promoting respect for human rights by all South Africans as well as protecting and monitoring human rights in South Africa. It does this through raising public awareness, training programmes, special projects, and through enquiries, hearings and legal interventions. The SAHRC receives and investigates complaints of violations of human rights. Investigation may entail mediation, litigation or publishing a report.

The Commission must also monitor and advise government on the implementation of socio-economic rights. All government departments have to report annually to the SAHRC about the progress they have made in reaching the goals set out in the Bill of Rights, especially with reference to socio-economic rights. This is intended to ensure that the various government departments put plans in place to improve the quality of life of citizens.

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities

This Commission's job is to promote respect for all communities in South Africa with regard to culture, religion and language, as well as to build national unity among these communities. Legislation has not yet been drafted by the Department of Constitutional Affairs and Development to establish this Commission.

The Volkstaat Council

The Volkstaat Council was a temporary institution established by the interim Constitution after intense negotiations between the Freedom Front, the African National Congress and the then government of the Republic of South Africa. The purpose of the Volkstaat Council was to make recommendations regarding cultural self-determination and to explore the constitutional possibility of the establishment of an Afrikaner Volkstaat.

This Council was set up as a temporary measure and was dissolved in March 1999. The issues pursued by the Volkstaat Council will be taken forward by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

Commission for Gender Equality (CGE)

The Commission for Gender Equality (CGE) monitors gender equality and is particularly concerned with the rights of women.

It investigates and challenges laws, practices and customs that discriminate against people because of their gender. It monitors government, the private sector and other organisations to ensure that they promote and protect gender equality. Focus areas include the representation of women in public life, employment equity and the problems of violence and abuse against women.

The CGE aims to educate and inform the public about gender equality. It monitors laws passed by local, provincial and national government to ensure that gender equality is promoted. It also recommends new laws. The CGE monitors government's adherence to international agreements such as the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW).

Auditor-General

The Auditor-General's office must check on the accounts, financial statements and financial management of all government departments at all levels of government. It is the taxpayers' watchdog, ensuring that their taxes are well spent. It promotes accountability, helps fight corruption and prevents waste.

Electoral Commission

This Commission, known as the Independent Electoral Commission (IEC), impartially manages elections at all three levels of government to make sure that elections are free and fair. Its goal is to strengthen constitutional democracy through regular free and fair elections in which every voter is able to vote.

The Independent Authority to regulate Broadcasting

In terms of the Constitution, an independent body must regulate broadcasting in the public interest. The IBA makes sure that radio and television broadcasts are fair and that they represent the views of South African society. It requires broadcasters to provide balanced and impartial news coverage. Broadcasters must air a variety of views when broadcasting matters of controversial public importance.

Temporary commissions

In addition to the above, there are two other commissions that have temporary lifespans. They were provided for by the interim Constitution of 1993, their tasks being to inquire into and address past injustices in two fields. They are

  • the Truth and Reconciliation Commission (TRC) and
  • the Commission on the Restitution of Land Rights (CRLR).

Despite their temporary status, these Commissions share many of the features of the statutory institutions, particularly their independence and extensive powers.

  • The TRC's mandate has primarily been to document gross human rights violations in the period from 1960 to 1994 and to provide reparations.
  • The CRLR's mandate is to restore land rights lost as a result of apartheid policies. This applies particularly to people or communities who lost land through forced removals or as a result of Black people being prevented from owning land. They can apply to this Commission for the land to be returned or, where this is not possible, making good the wrong in some other way, such as offering land elsewhere or money as compensation.

Other structures:

In addition to the commissions described in Chapter 9, the Constitution sets up other structures in South Africa to make sure that human rights are protected and a constitutional democracy is guaranteed. These are:

  • The Constitutional Court
  • Independent Complaints Directorate (ICD)
  • Commission for Conciliation, Mediation and Arbitration (CCMA)
  • National Prosecuting Authority (NPA)
  • Judicial Service Commission
  • Financial and Fiscal Commission
  • Public Service Commission
  • Pan South African Language Board (PANSALB)

There is also a National Youth Commission and the Heath Special Investigating Unit which are statutory bodies but are not included in the Constitution and therefore do not enjoy constitutional protection.

The Constitutional Court

This court is the highest court in the country when it comes to the Constitution and the Bill of Rights. Everybody, including the government and the President, must comply with the decisions of this court. All other courts in the country also have to comply with its decisions.

Independent Complaints Directorate (ICD)

The Independent Complaints Directorate (ICD) investigates all cases where the police have acted wrongly or have violated rights. The need for the ICD was recognised at the time of the negotiations which resulted in the 1993 interim Constitution.

In any democracy it is the police department which is given the greatest powers to infringe the rights of citizens. The ICD, as an independent body, is responsible for ensuring that cases in which misconduct on the part of police officers is alleged, are investigated impartially. The ICD considers complaints relating to deaths of persons in police custody or deaths which are as a result of police action; the involvement of police officers in criminal activities such as robbery, theft of motor vehicles and assault; and behaviour which is prohibited such as neglect of duties or breaking the South African Police Service (SAPS) code of conduct. It aims to help build public confidence in the police service.

Commission for Conciliation, Mediation and Arbitration (CCMA)

The CCMA is an independent statutory body that helps anyone whose labour rights have been violated and/or is a victim of an unfair labour practice involving such matters as dismissal, wages and working conditions, workplace changes or discrimination. It resolves disputes between employers and employees through conciliation, mediation and arbitration.

National Prosecuting Authority (NPA)

This body is given the power to bring suspected criminals to trial. The Constitution says that the NPA must be able to act "without fear, favour or prejudice" to ensure fair trials and to prevent improper interference by government.

Judicial Service Commission

In terms of the Constitution, the Judicial Service Commission advises government on any matter relating to the administration of justice and the judiciary, such as complaints about judges and the appointment of judges. This assists in the right to a fair trial.

Financial and Fiscal Commission

This advisory Commission was established by the interim Constitution. One of its important responsibilities is to make recommendations regarding the fair share of tax revenue which each sphere of government and, in particular, the individual allocation for each province. The Commission plays the role of "mediator" between and amongst the three spheres of government. It could also be regarded as a "check and balance" on the collection, allocation and use of fiscal (tax revenue) resources.

Public Service Commission

This is a watchdog body to monitor the composition and efficiency of the state bureaucracy. Public servants are formally appointed by the Public Service Commission which sets their job descriptions, salary levels, service conditions and the guidelines for carrying out their work. Public servants are accountable to the legislature and can be called upon to account to the parliamentary committees.

Pan South African Language Board (PANSALB)

This Board's task is to protect, promote and develop the eleven official languages as well as to promote and ensure respect for all languages spoken in this country.

National Youth Commission

The National Youth Commission is a statutory body but it is not included in the Constitution and does not enjoy constitutional protection. It was established to assist the government in developing a comprehensive youth development policy. One of its tasks is to put in place measures to redress the imbalances caused by the various forms of disadvantage suffered in the past by youth in general.

Heath Special Investigating Unit

This is also a statutory body that is not included in the Constitution and does not enjoy constitutional protection. This is a special investigating unit and tribunal that investigates maladministration, corruption and misappropriation with relation to public funds and public assets. If there is sufficient evidence to sustain a civil action, the Unit will institute legal proceedings in a Special Tribunal it convenes. The civil proceedings brought in the Special Tribunal are similar to civil proceedings before the High Court. This provides a complete process whereby an allegation is investigated and where applicable presented to a judicial forum leading to a judicial finding and the machinery to enforce such a finding.

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This information compiled with the support of the European Union Parliamentary Support Programme (EUPSP)