Postal Address : Private ,Bag X90 000, HOUGHTON, 2041
Physical Address: Constitution Hill, Women’s Gaol, West Wing, No 1 Kotze Street, Braamfontein
Tel : (011) 339-1775 Fax : (011) 339-2234
RESPONSE TO
THE QUESTIONAIRE OF THE:
AD HOC COMMITTEE ON THE REVIEW OF CHAPTER 9 AND ASSOCIATED INSTITUTIONS
A. Role and Functions of Institution
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1. How do you view your institution’s constitutional/ legal mandate? In other words provide a description of your understanding of your institution’s constitutional/legal mandate.
The Constitutional mandate of the Commission for the Protection and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) is to strengthen Constitutional democracy (Act 108 of 1996; Act 19 of 2002). Thus the mandate of the CRL Rights Commission is concerned with community or group rights. This mandate is achievable through both a proactive and a reactive approach since culture, religion and language are individually and together a way of group lives. The CRL Rights Commission views its legal mandate as a means to:
Ø Providing space for each of the cultural, religious and linguistic communities to exist and all to coexist in the spirit of unity of diverse communities. Giving meaning to the South African Constitution and providing a bridge from the past to the desirable future of a united South African nation characterized by tolerance, respect and accommodation of one another’s values beliefs and practices, thus creating a peaceful environment in which all are equal and enjoy human dignity.
Ø Engaging a proactive approach, create moments of community interaction and maintain dialogue within and among the various communities on issues of common and different interests in order to create awareness and understanding of one another’s views and develop community an national values that go beyond the historically entrenched racial and ethnic stereotypes – common and varied forms of values.
Ø Engaging a reactive approach, mediate cases of cultural, religious and linguistic misunderstanding and build bridges in and between communities to promote appreciation of rights of communities as a specific human rights category.
Ø Creating opportunities for the development of cultural, religious and linguistic heritage(s) that diminished through the historical policies that aimed at de-humanising the communities of this land – recovering historically diminished heritage(s)
Ø Reviewing existing policies and legislation concerned with the rights of cultural, religious and linguistic communities. Interact with other organs of state such as the Departments of Education with regards to the Language in Education Policy, Religion Education, school uniforms; the Housing Department with regards to the provision of cultural and religious spaces, the Department of Land Affairs specifically in relation to land restitution and spaces of cultural and spiritual significance to communities and the Department of Agriculture with regards to arability of spaces of spirituality, to mention a few examples, in order to promote sensitivity to c-r-l rights of all communities foster an environment of equality and development of human dignity.
Ø Engaging communities at all times, create organized community based groups that represent communities and advance the work of the CRL Rights Commission, thus encourage community participation and freedom of cultural, religious and linguistic expression – Community Councils
Ø Receiving and dealing with submissions and complaints of members and groups of people to mediate conflict, develop and strengthen community values, beliefs and practices
Ø Encouraging celebration of community and national values and commemoration of historical, cultural and religious moments by taking advantage of 7 of the declared National Days namely: Human Rights Day (21 March), Family Day, Freedom Day (27 April), Youth Day (16 June), Women’s Day (9 August) , Heritage Day (24 September), the Day of Reconciliation (16 December) and International Days such as the World Mother Language Day (21 February), Diversity Day (21 may), Africa Day (25 May), Day of Indigenous People (9 August), Africa Human Rights Day (21 October).
Thus the mandate of the Commission is to give effectiveness to the national motto and create opportunities to give expression to the Cultural Charter for Africa (1976); the Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005) and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003). Hence the Vision:
To contribute meaningfully and constructively to social transformation and nation building for the attainment of a truly united African nation -
“!ke e: /xarra //ke” |
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2. What role or function does your institution perform that is not carried out by other institutions, whether in government or civil society?
The uniqueness of the role and functions of the CRL Rights Commission lies in the fact that it protects and promotes group rights rather than individual rights and greater parts of the nation – communities as well as rights of the whole nation. Our functions are, to:
Ø Develop inter and intra culturality by encouraging a shift from negative to positive tolerance of others.
Ø Encourage the nation in setting up ‘justiciable’ standards for cultural rights claims
Ø Develop policy guidelines for the promotion and protection of cultural, religious and linguistic rights of communities.
Ø Develop public awareness of the cultural, religious and linguistic rights of the various communities, both as a concept and lived experience.
Ø Conduct research on topics of cultural, religious and linguistic matters.
Ø Investigate and resolve conflicts among the various cultural, religious and linguistic communities.
Ø Establish Community Councils in South Africa through which communities are mobilized in the protection and promotion of their CRL Rights.
Ø Revive Diminished heritage thus strengthening the development of previously suppressed cultural, religious and linguistic values and practices.
Ø Work towards developing and generating provincial cultural, religious and linguistic profiles as parts of country report.
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3. In what way, if any, does the role and function of your institution overlap or potentially overlap with other Chapter 9 institutions?
Our investigative role of complaints from communities about cultural and religious practices sometimes infringe on individual rights whose protection is a mandate of the South African Human Rights Commission. Although institutions such as the South African Human Rights Commission (SAHRC) and Pan South African Language Board (PanSALB) are concerned with general ‘human rights’ and ‘language’ aspects respectively, the role and functions of the CRL Rights Commission is concerned specifically with the ’protection’ on the one side and ‘promotion’ on the other, of the rights of ‘cultural, religious and linguistic communities’. The dividing line in the continuum is the fact that the CRL Rights Commission protects and promotes the right to as well as the right of cultures, religions and languages as well as the right of communities to their practice within the context of nation building, social justice and human dignity and citizenship – group identity and responsibility.
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4. What outcomes do you strive for in order to realize the constitutional/legal mandate set out in 1 above?
Ø Capacity to influence policy relating to CRL Rights in all spheres.
Ø A legal and social framework that respects diversity and promotes positive tolerance of others.
Ø A move away from a negative to a positive approach to Cultural human rights
Ø Respect, peace, ubuntu, tolerance, community and national unity.
Ø Community empowerment through the establishment of Community Councils, Councils of Elders, youth and gender groupings to enable them to claim their c-r-l rights within c-r-l communities. |
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5. Does the empowering legislation governing your institution provide a clear, workable, and comprehensive legal framework that supports and empowers the institution to successfully fulfill its core mandate?
It indeed provides a good legal framework for the protection and promotion of the rights of c-r-l communities. However some of the provisions need to be amended while others, on the other hand, require subordinate legislation in order to make them more meaningful and ease implementation.
For example (i) the founding legislation fails to articulate the powers of the Chairperson in accordance with the spirit of s39 of the same legislation but states the powers and role of the Chairperson only in relation to convening meetings of the Commission and presiding at sessions of the NCC (s19; s28). This situation creates uncertainty in relation to the provision for the recognition of Community Councils in a ‘prescribed manner and raises questions about who is responsible.
(ii) The CRL Rights Commission’s legal muscle for sanctions and independence is taken away by the provision to ‘report any matter that falls within its functions and powers to the SAHRC particularly in relation to litigation [s 6 (3), Act 19 of 2002).
(iii) The exclusion of the CRL Commission in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 creates an impression that the individual rights take precedence over group, specifically c-r-l community rights.
(iv) The founding legislation tends to duplicate other pieces of legislation such as the Public Finance Management Act (Act 1 of 1999) and contradict itself. It gives powers to a Minister while it provides space for direct reporting to the National Assembly ( s3 and s8 vs s14 of Act 19 of 2002)
The above illustrate a need for a review with the view of the founding legislation to sharpen it and make it workable.
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6. What mechanisms do you have in place to measure the outcomes set out in 4 above, and how do you assess the effectiveness and impact of your work?
Since the outcomes set out in 4 above are both ends and means, their assessment is an integral part of the activities of the institution. Research, public awareness and investigation of complaints are participative.
Ø Communities and participants including politicians who attend some of the programs also serve as evaluators of the CRL Rights Commission initiatives
Ø Each activity and program is evaluated.
Ø The Commission reports to the Portfolio Committee of DPLG at least twice a year.
Ø As prescribed, the National Consultative Conference (NCC) serves to evaluate the performance of the Commission.
Ø It is a legal obligation to submit annual reports to the National Assembly.
7. Have you carried out any evaluation looking at the success or otherwise of your functions, especially in relation to recommendations sent to government or other public institutions?
We spent the first two years of our existence interpreting and setting up a foundation for effective delivery. The first and mandatory NCC that we hosted in Durban in November 2004 provided us with a list of recommendations that informed and continue to influence our programs in the following year (2005/6) and henceforth. We are set to make bold recommendations to the relevant state organs for policy and legislative review on the basis of out research and experiences.
8. What have been/are the major constraints facing your institution and how have these impacted on its ability to achieve its mandate?
The socio political environment does not sufficiently appreciate the claims of CRL Rights of communities as anticipated in the Constitution:
Ø The degree of ambivalence towards cultural rights, as some often regard Culture, religion and language as soft issues or the less dominant as a sign of “backwardness” and antithetical to our emerging democracy.
Ø The disjuncture between the remit of the institution and resources made available for the same disables the institution.
Ø The support of Parliament is insufficient. There is very limited guidance in terms of implementation of the legislation and the resource allocation does not support alternative means of support such as outsourcing of functions. The conditions of engagement, roles and functions of the members of the Commission are not clearly articulated.
Ø The CRL Rights Commission is not a party in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Exclusion insinuates a hierarchy of rights, derogation and subordination of Community rights to individual rights. At the same time the Equality Courts should effectively differentiate and balance between individual and community rights (Act 4 of 2000 -PEPUDA).
B) Relationships with other bodies
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9. How do you view your institution’s relationship with the executive and Parliament, given its constitutionally guaranteed independence and impartiality and the constitutional requirement to be accountable to the National Assembly? In particular, please address the following issues:
Chapter 9 of The Constitution, Act 108 of 1996, and the CRL Rights Commissions Act, 19 of 2002, clearly states that the Commission is independent and it is accountable to the National Assembly but there is no effective mechanism to ensure our independence.
The CRL Rights Commission reports to National Assembly through the DPLG Portfolio Committee beyond which point the route to and from the national Assembly zigzags and seldom reverts to the of Commission.
Any parliamentary questions about the activities of the CRL Rights Commission are directed to the Minister of Provincial and Local Government who in turn forwards the questions to the Commission for responses. Otherwise the Commission does not communicate directly with the national Assembly nor does it ever get a feedback on its response.
There is no formal relationship between the CRL Rights Commission and the Executive or Cabinet (National and Provincial Executive Authorities). The Commission interacts with various Ministers and Provincial authorities on an ad-hoc basis. This could be improved by setting up an Annual Democracy Forum between the Executive and Chapter 9s so as to underline the concept of cooperative governance as anticipated by Chapter 3 sec 41 of the Constitution (Act 108 of 1996).
10. Is Parliament currently effectively fulfilling its oversight role over your institution? If not, how can this are improved?
Reporting to one Portfolio Committee is inadequate and results in relational and information gaps. The celebration of the 10th anniversary of the 1996 Constitution has also exposed the weakness of reporting to different Committees by the various Chapter 9 institutions. The recent forum of Chapter 9 institutions in Parliament actually highlighted the need to have a common structure to which we report. Such a structure would provide a mechanism for integrated planning and reporting holistic strengthening of our democracy. This will also provide a means to rationalize budgets.
11. What was the intended relationship of accountability between your institution and other institutions supporting constitutional democracy and the different branches of government? To what extent have these relationships been realized?
Although it is not well defined, the intended relationship of accountability among the SISCDs should be complementary in nature as the mandate of each SISCD is specific. The same should apply to the different branches of government. The relationship could be partnerships or be in the form of collaboration over specific activities. Thus the institutions should share their strategic and operational plans to formally and timely seal their agreements with committed resources. The effectiveness of partnerships and collaborative ventures would be achieved only if and when all the SISCDs account to a common centre – a dedicated Parliamentary committee.
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13. What is the extent of collaboration and coordination of the work carried out by your institution and similar/related work carried out by other Chapter 9 institutions or institutions of a similar nature? Give examples of successful initiatives in this regard.
The CRL Rights Commission has partnerships with other Chapter 9 institutions on specific projects. This year we implemented two programs in partnership with the Independent Electoral Commission (IEC), the South African Human Rights Commission (SAHRC), and the Commission on Gender Equality (CGE) and the Office of the High Commission for Human Rights. We foresee this partnerships strengthening and growing from strength to strength. We also refer correspondence on any matter that falls outside our mandate and within the mandate of another institution to the relevant institution for attention. We are also working on national Human Rights (Democracy) Awards that would go with an annual lecture.
The CRL Rights Commission, the National House of Traditional Leaders and the South African Human Rights Commission conducted public hearings in various Provinces on the practice of initiation for boys in South Africa. The Dept of Justice and the S African High Commissioner in London together hosted us for a seminar in celebration of 10 Years of the Constitution.
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C) Institutional Governance
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14. What are the institutional governance arrangements in your institution? Are these arrangements clearly set out and do they allow for a smooth running of the institution? Is there a clear, logical and workable division between the members of your institution appointed by the President on advice of the National Assembly and the secretariat? What suggestions do you have to improve the institutional governance arrangements?
The CRL Rights Commission’s governance structure is clearly defined. The structures of the political and the administrative components are aligned to each other as the latter supports the former. This structure (herein attached) was adopted in June 2006 and its effectiveness has not yet been tested. Because there are no clearly defined roles and functions of Commissioners, the relationships largely depend on goodwill, where goodwill might not necessarily exist. This remains a challenge and compromises the efficiency and effectiveness of the Commission. It is recommended that the conditions of appointment and role and functions of Commissioners should be clearly defined to improve the effectiveness of the governance of the organization and the efficiency of the secretariat. (similar to the Public service Handbook.)
15. Does your institution have mechanisms in place to deal with internal conflict in your institution? If yes, what are these mechanisms and are they effective?
The CRL Rights Commission approved a Code of Conduct in 2005. This includes the procedures for dealing with transgressions and conflicts. The legislated provision of the right to ‘hire and fire’ by the National Assembly unfortunately does not deal with intermediate transgressions and who has the power of sanctions. Staff relations are predicated and informed by the Public Service Handbook for Senior Management.
16. What mechanisms are in place for Chief Executive Officers, Chairpersons and Commissioners to disclose and / or seek permission for private commercial/financial interests or involvement? Are such mechanisms effective or sufficient to ensure transparency and avoid conflict of interest?
In relation to the Chief Executive Officer and all senior managers within the institution, the Public Finance Management Act (PFMA) is followed in the disclosure of private, financial and commercial interest. Disclosure of interest made annually and submitted to the Human Resource Department and this information would be kept on the personal file of the senior manager. The only other person, who complies with the PFMA, is the Chairperson of the institution. He is a full time member of the Commission and he complies. In relation to the other 17 Commissioners, the institution is not sure about their compliance for disclosure. We see them as Non-Executive Directors and clearly they have no influence in the day to day running of the organization. If for any reason the honourable committee feels that our interpretation is incorrect, we would welcome a relook at our processes.
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D) Interaction with the public
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17. What was the intended relationship between your institution and the public? To what extent has this relationship been realized?
Ø The CRL Rights Commission provides a platform for public participation and contribution of effective policy formulation. We hold various community outreach exercises. In our first year we actually went out and held Provincial seminars, covering both rural and urban settings.
Ø We respond to community submissions and design appropriate programs to address their needs. The complaints we receive from communities become the basis of topics we research and resources for public education.
Ø The CRL Rights Commission hosted a mandatory National Consultative Conference in 2004 at which representatives drawn from Andriesville to kwaZulu/ Natal, in their cultural, religious and linguistic diversity. This also provided a forum for Communities to articulate issues relating to the promotion and protection of their cultural, religious, and linguistic rights. The current programs of the CRL Rights Commission are both a product of the NCC and a means to achievement of cultural, religious and linguistic democracy.
Ø We host events in celebration of diversity, unity and our African identity.
Ø We enter into deliberate conversations with communities associated with diminished heritage.
Ø We mediate in inter-community conflicts.
Our role is best captured by one participant who said; “It is not about rejecting White people but about realizing that now we have the platforms to talk about who we are, about what we want and how we want it”. Our right to our identity is sacrosanct.
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18. Does your institution have mechanisms in place to deal with complaints by the public about the work done by your institution or the failure to attend to issues?
At the moment all complaints about the Commission are sent to the Chairperson, who together with the Executive deal with those complaints and suggest remedies. In 2004 and soon after the establishment of the Commission we received a complaint about the fact that the enabling legislation establishing the Commission is published in English and Afrikaans only. In response to the complaint, the Commission commissioned the translation of the Act 19 of 2002 into all official languages
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19. If you deal with public complaints, what mechanisms are in place to deal with such complaints, to follow through on such complaints and to successfully resolve such complaints?
There is a designated Investigations Committee and a dedicated Unit that handles and manages all Complaints. They conduct the initial investigations. Usually the mentioned parties are brought together to participate in the resolution of the issue. However, as indicated above, the ‘resolving of complaints’ means in many cases doing a broader investigation that goes beyond the specificity of the complaint. E.g. a language complaint against a school, might involve doing an investigation about language policy and related implications. Most of the complaints have either a Research and Policy Development or a Public Education and Advocacy slant. In some instances a Complaint could trigger a process of conciliation, mediation and strategies for public promotion. As a developing institution we are in the process of strengthening the secretarial capacity to deal with specific complaints. |
E) Financial and other resource matters
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20. Give an indication of your budget allocation, additional funding and expenditure over the past 5 years
§ Since its inception the CRL Rights Commission Annual budget allocation has been reported on and audited by the Auditor General. § The CRL Rights Chairperson Commission receives ‘its’ transfer funding from the Department of Provincial and Local Government (DPLG), which is tabled below:
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21. Please provide detailed information of the remuneration packages for office-bearers and Commissioners.
The CRL Rights Commission has one full time office bearer (the Chairperson) and 17 part time Commissioners. The part-time Commissioners are compensated for time spent on the on the meetings and activities of the Commission. The tariffs are determined by National Treasury as follows:
Item Hourly Rate /Km Daily Annual Average
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22. Please illustrate the budget process followed by your institution, including the process of allocation of funds.
The first budget allocation was determined by DPLG in 2003/04 and it had no direct relation to plans as the organization had not yet been established. Since then the CRL Rights Commission has been budgeting according to strategic objectives. However the budget has been refocused and aligned to plans. It is continuous based on the original baseline budget of 2003/4.
The National Treasury has begun to engage the CRL Rights Commission in the prescribed budget process via the DPLG. As a result the organisation has received additional funding of R2 million for the next three years. It remains to be rectified that the budget is a transfer fund from DPLG. It is desirable that the budget of the institution be realigned to the strategic plan and be allocated directly to the Commission or via the National Assembly should a dedicated committee be established.
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23. Are the current budgetary and administrative arrangements sufficient to ensure autonomy of Chapter 9 Institutions?
The budgetary and administrative arrangements hamper the delivery of all chapter 9 institutions. The Constitution is compromised by the indirect accountability lines that are followed presently. As stated in our Constitution, State institutions like us are independent. This does not happen, because we, the independent bodies have no budget vote in Parliament. For any institution to be regarded as independent, ‘it’ will have to be autonomous from any other body. In this instance we refer to our relationship with the Department of Provincial and Local Government.
We believe that Chapter 9’s are not really understood in the context of a Constitutionally Democratic State. In real terms, Chapter 9’s are accountable to Parliament and not to any Government Department. The result and effect of this accountability is that Parliament should play an oversight role over State bodies. As a result of the duel line of accountability, Chapter 9’s relationship with the National Assembly is not clearly defined. There is no direct root to Parliament, we called on appointment and at time we feel as if we waited our time. To illustrate our dilemma, when we need to communicate with Treasury we can only do so thru the Department of Provincial and Local Government, yet our financial statements are audited by the Auditor General.
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24. To what extent are the resources allocated to your institution directly spent on meeting its key responsibilities?
The activities of the CRL Rights Commission are labour-intensive and people centred. Our programs take the form of dialogue, hearings, conferences and events In addition we conduct participative research on areas of common practice such as rites of passage and areas of critical importance in policy formulation an implementation such as language in/of education.
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25. Please tabulate the full staff complement of your institution, including all executive and non-executive staff. Please separate staff in the head office from regional offices, where applicable.
The CRL Rights Commission is composed of (i) members of the Commission who are appointed by the President of the Republic of South Africa and (ii) employees of the Commission. It is a very small organization hence it has only a head office Johannesburg. Its size has been influenced by the budget allocation. It cannot afford to set up provincial offices as its resources are limited.
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