Democracy needs guardians: strengthening SA's Chapter 9 institutions

Date: 2014-08-28

Time: 10:00 to 12:30

Venue: 6 Spin Street , Cape Town

In 2007, the late Kader Asmal submitted a report to Parliament on the effectiveness of South Africa's constitutional bodies responsible for entrenching democracy, the so-called Chapter 9 institutions. Asmal's 260 page report was commissioned by then (and current) Speaker, Baleka Mbete, and examined the role and functioning of the Public Protector, the Commission for Gender Equality and the South African Human Rights Commission (SAHRC), amongst others.

The Report was important because it examined the oversight role Parliament had over these institutions, their budgetary constraints and their individual relationships with the executive branch of government. Asmal proposed the establishment of an umbrella human rights body – the South African Commission on Human Rights and Equality – which might have wider powers than the SAHRC.

No meaningful debate has taken place in parliament on this report. As the 5th Parliament commences its work, it is a good time for Parliament, civil society and Chapter 9 Institutions themselves to reconsider the Asmal report recommendations.

This seminar was chaired by Judith February, senior researcher in the Governance, Crime and Justice division of the ISS and the keynote speaker was Alison Tilley, head of Advocacy and Special Projects at the Open Democracy Advice Centre. Notable participants included Mfanozelwe Shozi, Chair of the Commission for Gender Equality; Amanda Gouws, former Commissioner of the Commission for Gender Equality and Professor of Politics at the University of Stellenbosch; and Pregs Govender, Deputy Chair of the SA Human Rights Commission.

Tilley noted that several issues compromise the independence and effectiveness of Chapter 9 institutions. There is inadequate engagement by Parliament in their work, and while they are constitutionally mandated to table reports in parliament, the House often fails to properly consider the reports. Tilley stressed that the lack of proper engagement is not necessarily a political problem but rather a structural one.

Tilley explained that in order to exercise their independence and effectiveness, Chapter 9 bodies require adequate resources. The budgets of Chapter 9 institutions are located in the budgets of state departments, which is a salient challenge for upholding the independence of these institutions.

During the discussion session, the following issues were raised:

The complicated relationship of accountability between Parliament and Chapter 9 institutions. On the one hand Chapter 9’s account to Parliament while also performing oversight over the business of Parliament. This vexed relationship can mean that Chapter 9’s refrain from being too critical of Parliament.
Civil society organisations should work more closely with Chapter 9 institutions.
The criticism that Chapter 9 bodies have ‘overlapping duties’ is not necessarily accurate. Rather this allows them to cooperate and thereby strengthen their work.
Chapter 9 institutions are independent and only subject to the rule of law in terms of section 181 of the Constitution. These institutions must be assisted by state organs to protect their independence, impartiality and effectiveness. In wake of the recent attacks by the ANC on the Public Protector and the DA’s attack on the Human Rights Commission, who will ensure that the integrity and mandates of Chapter 9 bodies is protected?