Beneath the radar of much political reportage and commentary, Parliament is conducting a constitutional review that is likely to have profound implications for the quality and robustness of South Africa’s democracy.
An ad hoc committee chaired by veteran ANC MP and human-rights law professor Kader Asmal must make recommendations on the future of the state institutions supporting democracy: the Human Rights Commission (SAHRC), the Public Protector, the Auditor General, the Commission for Gender Equality, the Independent Electoral Commission and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (which I call the commission with the long name).
These are often referred to as the “Chapter 9” institutions — after the section in the Constitution that established them. The committee’s brief has also extended to include other bodies with similar mandates, such as the Youth Commission.
Although Asmal claims the committee is approaching its work with “virginal purity”, the real purpose of the review is abundantly clear: there are simply too many of these bodies; they must be rationalised. The only real question is how.
Unusually, the ANC does not have a majority on the committee; it has five of the 10 seats, and the committee has wide terms of reference.
To say that the bodies themselves are in a state of anxiety about the review is an understatement. A thousand careers have been launched on the back of the Chapter 9s; many nests have been feathered. There are some serious politics at stake here.
In many ways the best man for this job, Asmal must sort the wheat from the chaff. After 10 years in the Cabinet, he is a prime example of that rare but crucial species: a knarred, old-hand backbench ANC MP with an independent, robust intellect — a class of MP that is essential if Parliament is to approach anything like parity in its oversight dealings with the executive.
Thus far, all of the most obvious candidates for such a role have either been swiftly restored to the executive, perhaps because the ANC leadership realised the damage they might do (think Pallo Jordan); deployed elsewhere (think Wally Serote); or driven away for being too truculent (think Pregs Govender). Or they ascended to that great Parliament in the sky.
Asmal will need his thick skin. Happily for this process, he has probably accepted that there is no more clambering up Disraeli’s “greasy pole of politics” to be done in his case. If he was still eyeing a position in the government or a victory in the ANC elections later this year, there would be no way he could contemplate merging the Gender Commission into the SAHRC, for example, or disbanding the Youth Commission.
The political symbolism of such recommendations, let alone the closing down of avenues of patronage that this would entail, would be too great a risk for the ambitions of a younger man or woman.
But the reality is that South Africa cannot afford all of these bodies; there is too much overlap in administrative resources as well as mandates.
Often, important issues fall between the cracks. Lamely, for example, the Public Protector refused two years ago to investigate the wholesale failure of government departments to comply with the requirements of the Promotion of Access to Information Act, on the grounds that, because it involved the constitutional right of access to information, this was a matter for the hopelessly overburdened SAHRC.
Two weeks ago, Asmal quipped that he had “got into trouble” for using the phrase “uber-body”, but some kind of umbrella commission is inevitable. Quoting President Thabo Mbeki, Asmal pointed out that “we need the machinery to resolve disputes concerning citizens to avoid having to go to court”.
Hence, the review should not be seen as a narrowing of the constitutional protection apparatus but rather as an opportunity to strengthen it. We need these institutions that will protect the Constitution. But we need them to be strong and effective, and above all independent.
To conduct this assessment dispassionately, we must remember how it was that we ended up with so many bodies in the first place: it was part of the political deal that emerged from the constitutional negotiations. That is the genesis of the commission with the long name; De la Rey notwithstanding, it is now superfluous to our needs. It is a test of our democratic maturity whether we can now move to something more suitable for the future.