ADDRESS BY PROFESSOR KADER ASMAL, CHAIRPERSON OF THE AD HOC COMMITTEE ON THE REVIEW OF STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY TO THE REPRESENTATIVES OF 11 CHAPTER 9 AND ASSOCIATED INSTITUTIONS ON FRIDAY, 20 OCTOBER 2006, AT THE OLD ASSEMBLY CHAMBER, PARLIAMENT

Rationale for the inclusion of Chapter 9 Institutions in the Constitution
South Africa is unique in placing those bodies in the Constitution. It would be helpful to look at the background to this exceptional treatment of institutions normally established by ordinary legislation in other countries.

When negotiators sat down to begin the task of drafting a new Constitution for South Africa in the early nineteen nineties, there was a keen understanding among some of the participants that it would be necessary to craft new Constitutional arrangements that would help the country break decisively with its apartheid past.

The apartheid state displayed a profound disrespect for the human rights of its citizens and failed to honour even the most basic tenets of the Rule of Law. The state was also farcically bureaucratic, secretive and unresponsive to the basic needs of most of its citizens. Most of the existing state institutions had no or little credibility and were profoundly distrusted by the majority of the people. For some constitutional negotiators it was therefore clear that in order to transform South African society from an intensely oppressive society into an open and democratic society based on human dignity, equality and freedom would require more than a mere change in the system of government. It would be necessary to create a set of credibly independent institutions whose task it would become to strengthen constitutional democracy. It was envisaged that these independent institutions would support constitutional democracy because, amongst other things, it would help:

· to restore the credibility of the state and its institutions in the eyes of the majority of its citizens;

· to ensure that democracy and the values associated with human rights and democracy flourished in the new dispensation;

· to ensure the successful establishment of and continued respect for the Rule of Law; and

· to ensure that the state became more open and responsive to the needs of its citizens and more respectful of their rights;

Some negotiators also supported the establishment of independent institutions to shear up democracy because they were fearful that the new political institutions would be dominated by those who were previously oppressed and that the majority might not be sensitive to the need for the protection of the rights and interests of minority groups. Some civil society groups who had come to distrust the state and its institutions more broadly or who were eager to see new institutions emerge that would be tasked to deal with the particular concerns of its constituents, also strongly advocated for the establishment of independent institutions that would look after their particular concerns about language rights, gender rights or human rights in general.

At the time a widely-shared belief emerged that at least some of these institutions were necessary to enhance democracy and more importantly, to empower the citizens of South Africa. To that end it was felt that the Constitution should include provision for a Public Protector, a Human Rights Commission, a Commission for Gender Equality, an Auditor General and an Electoral Commission. Later the Constitutional Assembly also added a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

These authorities had their powers and composition drawn up in some detail and were identified in Section 181(1) of the Constitution. The Independent Authority to Regulate Broadcasting was not included in this section but was discretely identified in Section 192.

Why the executive began the review process
In the hybrid system of Parliamentary democracy established by our democratic Constitution, Parliament is tasked with an extremely important and potentially wide oversight role. Not only the executive, but also other important bodies - including the Chapter 9 institutions - are subject to Parliamentary oversight. However, the Constitution does not provide details of a specific oversight model to be adopted by Parliament. As part of the development of an oversight model for Parliament, the Joint Rules Committee of the National Assembly and the NCOP commissioned research on the oversight role of Parliament and this Commission, headed by Professor Hugh Corder of UCT, delivered its report in July 1999. This report also dealt briefly with the role of Parliament in holding Chapter 9 institutions accountable and confirmed the importance of the independence of these institutions while also making certain proposals for a more structured oversight role over these institutions by Parliament. These rather ambitious proposals were not implemented, but various stakeholders remained seized of this important matter.

It was therefore no surprise when the Cabinet tasked the Minister of Public Service and Administration with the task of conducting a review of chapter 9 institutions as well as the Public Services Commission in February 2005. Thus, nine years after the adoption of the final Constitution and eleven years after the advent of democracy in South Africa, the executive had clearly decided that it would be appropriate to evaluate the progress we have made towards the consolidation of democracy and the promotion and protection of Constitutional rights, values and principles in South Africa. It was therefore thought that it would be appropriate to review the work done by the various Chapter 9 institutions, which were, after all, established with the very specific mandate to strengthen democracy. Section 181(3) of the Constitution requires all other organs of state to assist and protect these institutions and to ensure their independence, impartiality, dignity and effectiveness and the executive initiated the review process, in part, to give effect to these constitutional duties. In order to support these institutions and to ensure their effectiveness it was necessary to review the work of these institutions to gain a better understanding of how these institutions could be further assisted and supported with a view to strengthen them.

Why Parliament took over the process in 2006
Parliament has now taken over this review of the Chapter 9 institutions and other related institutions. It was necessary for Parliament to do so because the Constitution itself requires this. While section 181(2) guarantees the independence of these institutions and require them to be impartial and to exercise their powers and perform their functions without fear, favor or prejudice, section 181(5) specifically states that "these institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year". It is therefore Parliament in general, and the National Assembly in particular, (and not the executive) that is tasked by the Constitution to play the important oversight role regarding these institutions to ensure the effective and impartial fulfillment of their mandates. The executive understood the implications of this provision and transferred the enquiry to the National Assembly.

It is important to note that the Committee will undertake its work within the boundaries of this constitutional framework. This requires the Commission to proceed with sensitivity and with honest respect for the independence and impartiality of the various institutions under review. At the same time the Committee has a Constitutional oversight duty and cannot afford to be timid or hesitant about the carrying out of this important task. The Committee is of the view that chapter 9 institutions have a pivotal role to play in the strengthening of our democracy. The Committee is also of the view that a non-partisan Ad Hoc committee of Parliament is uniquely positioned to review the work of these institutions. This is borne out, as has been noted above, by section 181(3), which explicitly states that other organs of state like Parliament must assist and protect the chapter 9 institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. The institutions themselves have a Constitutional obligation to support and strengthen constitutional democracy. The review in essence is aimed at complying with these Constitutional obligations.

What are the fundamental issues to be looked into?
While the institutions under review have established themselves as important pillars of support for the Constitutional democracy and the values of human rights and openness that imbue our Constitution, they have not always been able to avoid controversy. The recent contretemp between the Public Protector and the Deputy Public Protectors is a case in point.

To judge from newspaper reports, at least two other bodies have had internal problems, one chief executive has been suspended, and one has recently resigned while another has waited over six months for the appointment of its commissioners.

The Committee is therefore of the view that in order to support and strengthen the institutions that are mandated to strengthen democracy it would be necessary to undertake a comprehensive review of these institutions and their work. At the same time it is important to note that the members of the Committee must at all times keep an open mind about any relevant issues relating to the effective, economical and sustained fulfillment of the various Constitutional mandates of the various institutions under review.

It is important to note that the terms of reference of the Ad Hoc Committee are quite broad and the Committee is tasked with looking into the work not only of the chapter 9 institutions mentioned in section 181 and 192 of the Constitution, but also the Public Services Commission and other institutions or organs of a similar nature, such as the National Youth Commission, the Pan South African Language Board and the Financial and Fiscal Committee.

The Committee will thus review the current constitutional and legal mandates of the various institutions and will make recommendations that will be aimed at ensuring the full and effective realizations of these mandates. An important component of this would be to review whether the institutions have kept pace

with the changing socio-political environment in South Africa, in particular the imperatives of a developmental State. It will also review the appropriateness of the appointment and employment arrangements of these institutions and will make recommendations that will be aimed at enhancing the capacity of the institutions. Issues of internal institutional governance and the coordination between institutions will also be under the spotlight. Given the fact that the Constitution guarantees both the independence of these institutions and requires the National Assembly to play an oversight role over them, the Committee will also look into the possible need for a structured oversight role for Parliament as recommended in the Corder report.

Conclusion
The Committee will work under tight deadlines and will report to Parliament no later than 30 June 2007. Despite these tight deadlines the Committee intends to work in an open and an inclusive manner. We foresee that the institutions under review and the relevant civil society groups will work closely with the Committee to assist it in its work. Ten years after the advent of our final Constitution the Chapter 9 Institutions deserve a serious and honest review that itself complies with the values of openness and accountability so justly celebrated in our Constitution.

We look forward to robust, informative and constructive dialogue that will ensure outcomes that will advance our constitutional democracy and the system of constitutional and other institutions established to support and strengthens democracy thereby ensuring a better life for all.