Human rights overhaul

The findings contained in the 260-page report by Kader Asmal’s ad hoc committee on the review of Chapter 9 and related institutions makes far-reaching recommendations that might require the amendment of the Constitution, the retrenchment of up to 40 commissioners and will test the political will of the executive.

The report slammed duplication of roles, lack of administrative and financial independence and a lack of coordination among these institutions. The committee slammed the fact that while 45% of South Africa’s poor live in the rural areas, most Chapter 9 institutions are urban-based.

In a bold move the committee proposed the establishment of a single umbrella body to be called the Commission on Human Rights and Equality. In addition to improving ease of access this will make parliamentary oversight simpler, according to the report.

The report will be presented to Parliament, which will decide whether to adopt it partially, entirely or not at all.

The Independent Electoral Commission was praised, but its increasing international activities were questioned for over-stretching its human resources.

While generally laudatory of the work of the Auditor General, the committee noted that this office does not have authority to ‘make binding decisions”. As a result the department must rely on the cooperation of government departments in the implementation of its recommendations.

The committee noted that there is a duplication of roles between the Pan South African Language Board and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. The committee urged that the lexicography units of the board be moved to the department of arts and culture and that the board be incorporated into the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

Icasa

The report says that Minister of Communications Ivy Matsepe-Casaburri’s involvement in the appointment of Independent Communications Authority of South Africa councillors ‘may create a perception that the authority is not an independent institution”.

The report also recommends that the minister no longer be involved in the performance management system to monitor and evaluate the performance of Icasa’s chairperson and councillors.

The committee also found that Icasa was not adequately funded to meet its mandate and recommended a new funding mechanism where Icasa receives a percentage of the licence fees that it collects to supplement the funding it receives from government. — Lloyd Gedye

The Commission on Gender Equality

The CGE came in for a serious tongue-lashing from the committee which wrote that it reported on this commission ‘in pain and sorrow” and found that the CGE represented a ‘lost opportunity”. It found that the commission had a poor understanding of its legal and constitutional mandate and that the CGE was reticent about using its legal powers to extract relevant documentation from government and even battled to obtain the country report on the status of women from the office on the status of women in the presidency.

The report slams the fact that the CGE ‘does not fully appreciate the need to remain independent and act independently from the executive” and notes that it appears to have been under the impression it should pursue cooperative relations with state institutions, instead of conducting itself as an independent institution.

The report also takes a dig at Parliament, finding that the fact that the CGE operated for 14 months without commissioners was ‘outrageous”. It found that public awareness of the commission was low and that it had failed to engage proactively with civil society, which sees it as unwilling to take on controversial issues.

The subsuming of the CGE into one umbrella body has met with mixed reactions from members of civil society. While most agree the CGE has failed to use its teeth, there are some concerns that gender will ‘get lost” among the plethora of other rights issues. ‘There is a danger in women’s rights being turned into just a desk — literally,” says Hassan Lorgat of the South African National NGO Coalition (Sangoco). ‘Look at the unions — they all have a gender desk which achieves very little and eventually just becomes part of the furniture.”

Professor Sheila Meintjes, head of the department of political studies at Wits University, points out that the CGE should not be only in taking the rap: ‘The whole of Parliament has not taken its responsibility to gender issues seriously enough.” She warns that new commissioners should not be political appointments, but have proven skills and capacity to prevent the ‘incredible level of kowtowing” which has characterised the CGE. — Nicole Johnston

The Public Service Commission

The PSC is the only institution established in terms of Chapter 10 of the Constitution, but has the same purpose as the Chapter 9 bodies: to protect and support democracy.

While generally complimentary about its work, the committee recommends that the number of PSC commissioners be cut from 14 to between five and seven, with an increased role for the minister of public service and administration.

Weaknesses identified include the PSC’s unsatisfactory interactions with Parliament and the provincial legislatures, a lack of collaboration with the Chapter 9 institutions and insufficient public awareness of the PSC’s work. The report says it should be made clear to Parliament that the PSC and its budget do not form part of the department of public service and administration. — Adriaan Basson

National Youth Commission

The scathing evaluation of the National Youth Commission is apparent in the report’s suggestion that ‘the wisdom and experience of older persons would enhance the work of the NYC”.

The committee also found ‘considerable overlap” between the NYC’s mandate and that of the youth desk in the presidency.

The NYC’s claim that it did not have adequate funding was rejected by the committee, which retorted that ‘the allocation of financial resources to the commission [about R20-odd-million] is not modest”.

Most crucially, the NYC does not cater for the rights of children and the report urged the appointment of a commissioner to focus on children’s rights.

NYC chairperson Nobulumko Nkondlo said it welcomed the evaluation and recommendations of the committee. ‘We are not naïve enough to think that there aren’t challenges faced by all the institutions, including ourselves.” — Warren Foster

Human rights commission

Although the committee praises the HRC as an ‘active and passionate defender of human rights” it noted that it had not committed enough resources to the rights of children and disabled people. The committee highlighted the HRC’s ‘cardinal” role in the realisation of socioeconomic rights, noting that ‘placing emphasis on political rights is like throwing a rope of sand to our people”.

The issue of access to information came under the spotlight and the committee heard that 50% of all requests for information from government departments do not receive a response. The HRC was criticised for its ‘overly timid approach” and encouraged to act more aggressively to subpoena government departments, which do not respond to requests within a ‘reasonable time.”

The committee also urged Parliament to initiate the ‘speedy appointment” of two more commissioners to the HRC to deal with the rights of the disabled and another one to facilitate the right of access to information.

Jody Kollapen, chairperson of the commission, says it supports the general thrust of the report, adding that fragmentation of human rights work is something the country can ill afford. ‘We have supported the idea of a single body for a long time,” he says, but also sounds a cautionary note: ‘We must ensure that the specific mandates of the previous bodies don’t get lost or marginalised.” He is confident, however, that these risks can be minimised if the new commission is designed to have dedicated commissioners for specific sectors. He also believes a single commission will give taxpayers better value for money and allow for the speedy and effective resolution of complaints, as well as providing a one-stop shop for members of the public who are often confused about which body deals with which rights violation. — Lynley Donnelly

Public protector’s office

Asmal’s report sidesteps the more controversial aspects of Public Protector Lawrence Mushwana’s work. Mushwana (pictured) has been criticised for being partial to the executive and the ANC, the latter of which he represented as deputy chairperson of the National Council of Provinces before taking up his present post in 2002.

Specifically Mushwana was accused of a ‘cover up” in his 2005 Oilgate investigation, in which he found no fault with PetroSA’s R15-million advance payment to oil company Imvume, much of which ended up in ANC coffers.

The report sidesteps the issue in a single paragraph: ‘A number of submissions made to the committee brought to its attention criticism of the public protector for narrowly interpreting his mandate … It appears that the criticism is linked to cases involving high-level people in public life. While there is this view, the committee is in no position to establish the validity of these perceptions. This is a matter for the office of the public protector to respond to.”

The report does, however, deal with structural constraints on Mushwana’s independence, including how he is paid. At present the public protector is paid through the department of justice and constitutional development and, according to the Constitution, is accountable to the National Assembly only. The report recommends that the protector’s budget be transferred from the justice department to Parliament’s budget vote. — Stefaans Brümmer