Institutions mandated by the Constitution to “support constitutional democracy” — specifically the Public Protector and the Human Rights Commission (HRC) — should be merged to curb costs and spread their know-how, says former HRC chair- person Barney Pityana.
Pityana’s successor, Jody Kollapen, agrees that the roles of these institutions sometimes overlap.
However, the deputy chairperson of the Gender Commission, Bafana Khumalo, believes there is still room for the organisations to exist separately.
These views come at a time when questions are being raised about political influence behind Public Protector Lawrence Mushwana’s findings last week that the National Director of Public Prosecutions, Bulelani Ngcuka, had acted improperly when he made a public announcement that there was a prima facie case against Deputy President Jacob Zuma.
The Constitution provides for six “Chapter Nine” institutions that support democracy, named after the chapter in the Constitution in which their powers and roles are defined. They include the Public Protector, the HRC, the Commission on Gender Equality (GCE, but called the Gender Commission), the Auditor General and the Independent Electoral Commission (IEC).
The sixth institution, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities — generally referred to by Chapter Nine watchers as “the commission with a long name” — became a legal entity in 2002, but started operating only late last year.
While the IEC and the Auditor General have distinct areas of operation, Pityana and Kollapen say the potential duplication of the others calls for a merger, or at least a debate on their continued separation.
“If, for example, a Shangaan woman complained that a public service official … refused to pay her her pension, the woman could go to the Gender Commission and say: ‘I have been discriminated against because I am a woman’, or she could go to the commission with the long name and say the discrimination was because she is Shangaan-speaking. She can go to the Public Protector to complain about maladministration on the part of the public servant, or come to the HRC and lay a complaint about the violation of her socio-economic rights,” says Kollapen.
Says Pityana: “I see no reason for the commission with the long name, because the issues it is meant to raise can be raised with the HRC.”
And because government has gender offices in the Presidency and the prov- inces, he says, an institution focusing specifically on gender issues is not essential, as it was when the interim Constitution was drafted in 1993.
“In 1993 South Africa was a very different place. Eleven years later we need to review where we are and how we can make [Chapter Nine institutions] more effective.
“The HRC runs campaigns on poverty in relation to gender. The face of poverty in this country is the face of women. But that [poverty] is not an issue that can be solved by the Gender Commission. It can be done by the HRC.”
However, Khumalo says that the argument for the merger is motivated by a false sense that South Africa is now an established democracy.
“The sentiments expressed by Professor Pityana would be acceptable in a society that has an established democratic process. We may have been lulled into believing that our democracy has already firmed. I don’t think that is the case.
“I think society needs [the Chapter Nine institutions] in their separate formations. It is crucial that we affirm the values enshrined in the Constitution.”
Both sides of the debate say that Canada, on which South Africa modeled its Chapter Nine institutions, proves their argument.
Pityana says the Canadians have successfully merged their human rights, gender and public protection roles.
But Khumalo argues: “When we were in Canada, we were told that women’s participation in politics had not grown beyond 20% in the last 20 years, yet Canada is an established democracy. They blamed this partly on the fact that there is no institution focusing on gender equality, so I disagree with Professor Pityana.”