COSATU SUBMISSION ON THE REVIEW OF CHAPTER 9 AND ASSOCIATED INSTITUTIONS
Submitted to the Parliamentary Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions
07 February 2007
CONTACT COSATU PARLIAMENTARY OFFICE
021- 461 3835
COSATU SUBMISSION ON THE REVIEW OF CHAPTER 9 AND ASSOCIATED INSTITUTIONS
CONTACT COSATU PARLIAMENTARY OFFICE
021- 461 3835
COSATU appreciates the opportunity to provide input on the Review of Chapter 9 and Associated Institutions or Institutions Supporting Constitutional Democracy (ISDs)[1]. We believe that Parliament’s decision to do a collective review of the ISD’s should be welcomed and is overdue.
ISD’s collectively can act as a check on the abuse of power by the State. They also can ensure that human rights are respected and promoted, and that socio-economic rights entrenched in the constitution are actively promoted. Parliament has the constitutional and sovereign duty to ensure the implementation of peoples rights, and to oversee the mandate of transforming our society, in particular to overcome the legacy of inequality, poverty and underdevelopment, and to hold to account all institutions of state which are charged with this responsibility. Chapter 9 institutions have an important function in ensuring that in particular the Executive executes this mandate. We therefore affirm, with qualifications, the need for a more structured oversight role by Parliament in the context of the independence of ISD’s.
Parliament’s terms of reference for the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions (the Committee) is specific insofar as it aims to assess:
· whether their mandates are appropriate for the South African (SA) environment;
· if their consumption of resources is justified relative to their performance;
· whether a rationalisation of function, role or organisation is desirable or will diminish the focus on important areas;
· the appropriateness of the appointment and employment arrangements for commissions and their secretariats with a view to enhanced consistency, coherence, accountability and affordability;
· institutional governance arrangements in order to develop a model of internal accountability and efficiency
Arising from this review, we are hopeful that the outcomes and agreements will result in tangible and measurable improvements in the co-ordination of work between the institutions covered in this review, as well as improved co-ordination and co-operation with government and civil society.
An important aspect of the review is that of the funding models of the ISD’s, with a view to improving accountability, independence and efficiency. In our submission we draw particular attention to this, since ISD’s in our view are and will battle to exercise its mandate due to funding constraints, uncertainty with regard to future funding. Importantly, this impacts on the question of their independence, due to some ISD’s financial dependence on the Executive. This aspect of the review sharply draws into focus the interrelationship of the ISD’s; the Executive (with particular reference to the role of the National Treasury), and the Legislature.
In a letter dated 22 November 2006, the Honourable Chairperson invites us to “submit our observations on “the activities of these bodies and our experiences arising out of your interaction with any of the bodies”. We have solicited some responses from our members, departments within the Federation and close associates. Inputs with regards to specific ISD’s are based on our direct interaction with them, as well as insights from related submissions made to Parliament by the COSATU Parliamentary Office since 1995. A Commission which we regard as having a critical mandate for our broad constituency, which it has failed to implement, is the National Youth Commission. However, due to time constraints, we have been unable to deal with this institution in this submission. We hope to have an opportunity to do so at a later date.
Our input is an initial response, due to limited resource and time constraints. We hope that we will be afforded an opportunity to respond more comprehensively in the near future. Our submission provides an eclectic input on this review, with regards to specific ISD’s, since we have engaged them in varying degrees, or not sufficiently, or not at all.
Early in 2006, specific focus was placed on these Chapter 9 institutions and a tentative debate began on their role and effectiveness in our fledgling democracy.
Cabinet sparked this debate after it initiated a review of Chapter 9 institutions and their roles and functions. This government review was the responsibility of the Minister of Public Service and Administration, Geraldine Fraser-Moleketi and initiated in March 2005. Elements of the terms of reference given to the DPSA appear to be identical to that given by Parliament to this Committee, in particular:
· the suitability of current and intended mandates suitable for the South African environment; and
· the possible rationalisation of remuneration scales.[2]
Of concern to COSATU, is that it was not Parliament, but Cabinet (and more broadly the Executive arm of the State) that expressed initial concern and started this review. Concerns regarding procedural anomalies and which arm of the State effectively leads in the review, have been expressed by others:
“……Of course the larger question which remains is whether it is entirely appropriate for the executive to initiate such a review? Chapter 9s are independent and report directly to Parliament. Surely, it should be Parliament which should be exercising oversight in a pro-active manner and asking the questions which the executive seems to be raising? If legislation governing Chapter 9 institutions is inadequate, then Parliament needs to re-examine such legislation and also the chain of accountability of these institutions to Parliament.
Now that the executive has stolen a march on Parliament to conduct the review, Parliament would do well to ensure that it is at the heart of any discussion or debate that takes place. In addition, it needs to be part of any recommendations regarding the role, function and broader mandate of Chapter 9s. The independence of these institutions depends largely on Parliament's ability to assert its authority not only in relation to the review but also about its general relationship with Chapter 9s.”[3]
Further, Parliament does not seem to have been involved in the decision by the Department of Justice and Constitutional Development, under the relevant Directorate of the Department, to conduct extensive work regarding strengthening relationships with the Chapter 9 Institutions by the Chief Directorate of the above Department. These include:
Clearly Parliament has been slow out of the “starting blocks” with regards to the review process, and may face an uphill battle when proposing changes and amendments that are counter to work done already. In light of the current status with regards to the review process, it may in fact be a greater test of the independence of Parliament than might first appear.
The need for public opinion and robust debate in this matter is therefore even more important.
The intricacy and complexity of the Review
COSATU agrees that the process of fairly reflecting whether ISD’s are performing their functions is intricate and complex. Given the varying roles, functions, institutional arrangements, constitutional and legal mandates, it is impossible and unfair to have a “one-size fits all approach” to assess these institutions. Unique and informed recommendations and interventions need to arise from thoroughly considered evidence and debated proposals. At the same time some overarching principles are required governing the relationship between these institutions, Parliament, other organs of state, and civil society.
COSATU acknowledges that the Committee is keenly aware of these challenges and cognisant of the implications of its recommendations – these may weigh heavily on the future of ISD’s. Bearing in mind that the Committee’s recommendations could range from an endorsement of current arrangements and the unchanged, continued existence of ISD’s, to Constitutional amendments that could change appointment procedures and areas of responsibilities, they require circumspection.
The extent of this circumspection is appreciated when one understands the raison d'être for the inclusion of Chapter 9 Institutions in the Constitution. Some negotiators understood that new Constitutional arrangements were necessary to “help the country break decisively with its apartheid past”.[4]
In his address to the National Assembly in October 2006, the Chairperson correctly stated that:
“[The apartheid state was] 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 ………”
Arising from this concern, “a set of credibly independent institutions whose task it would become to strengthen constitutional democracy” was established. Originally it was imagined 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 [5]; and
· to ensure that the state became more open and responsive to the needs of its citizens and more respectful of their rights”[6]
The degree of importance of these ISD’s within the South African context is such that
they were placed within the Constitution, whereas they are normally established by ordinary legislation in other countries.
The outcomes, whether directly experienced, inferred or perceived ranges greatly.
In our view, some ISD’s can almost entirely be held accountable for the problems they are experiencing. This may be due to a combination of factors that include poor management, lack of accountability, hierarchical and patriarchal behaviour, a lack of resources, poor communication, and internal conflicts.
Others may have performed with a fair degree of competence, but then may have fallen out of favour with the Executive or relevant Parliamentary Committee; had unclear terms of reference of delineation of roles, functions and powers; or experienced a loss of skilled personnel or leadership.
Even other may have been ignored, failed by institutions it accounted to, or their recommendations not taken seriously or treated with the appropriate degree of importance.
Some, such as the Human Rights Commission have performed better than others. They displayed a greater degree of creativity and responsiveness both in terms of their strategies, programmes, reports, and recommendations. In certain instances, their commitment to act and discharge their duties, without fear of favour, is commendable. The reports, findings and charges of the Auditor-General in particular, come to mind. However, the public perception that the AG failed to act decisively in relation to questions related to the arms deal, has done this office significant harm.
In the worst category, some institutions continue to flounder and justify their existence with fancy presentations, poor or unquantifiable outcomes. Judging from even recent minutes of parliamentary meetings, some remain largely in the dark about their functions, powers and mandates, often with of millions of Rands in public resources being wasted on salaries and administration of ineffective institutions.
In our submission, we contend that regrettably, some of these ISD’s in fact are unresponsive to the basic needs of most of our citizens, have little credibility and are viewed with scepticism and distrust by the very people they were designed to serve – i.e., they ironically share some of the same features of state organs of the past, which they were supposed to combat and transcend .
COSATU’s engagement or interaction with ISD’s
As mentioned earlier, the extent and nature of our interactions with ISD’s, has been varied. On one level we have worked directly and constructively with the Human Rights Commission (HRC), or responded to invitations extended. An example of the latter is our Submission to the HRC Investigation on Human Rights Violations on Farms.
In the HRC’s 10-year Review, it amongst others devoted an entire chapter to the challenge of employment and equity in the workplace and during its existence has engaged with some critical concerns of the Federation. Arguably, this ISD probably has had the most constructive relations with the Federation when compared to other institutions, although even this relationship remains basic and sporadic.
At another level, COSATU has made several inputs on legislation shaping the work of ISD’s. Examples include submissions to Parliament or government departments on, for example policy matters regarding the now defunct Independent Broadcasting Authority (IBA); and Independent Communications Authority of South Africa (ICASA). We have also made submissions on the FFC, and on matters pertaining to the mandates of ISD’s in various submissions and publications.
Finally, in certain instances, COSATU and/or its affiliates may have only commented publicly on an issue linked to the ISD, or commented on aspects of its work through its media statements and publications, but with little or no direct engagement with the ISD.
On the whole however, COSATU has a very general sense of the value, and limitations, of these institutions, even if it is sometimes a struggle to clearly determine what their programmes are.
COSATU supports the initiative of the Committee to develop, distribute and assimilate findings of a questionnaire to establish, among other, the appropriateness of existing structures and organisational arrangements within the various ISD’s.
From examples we have seen, the questionnaire will also assist in establishing whether there exists overlap with the role and functions of other ISD’s; the appropriateness of the current legal framework; and interrelationships with other organs of the State to foster efficacy and accountability.
However, with hindsight, there appears to be little space within the questionnaire for the ISD’s to propose to Parliament what mechanisms could improve their relationship and reporting regime.
Fiscally austere terms of reference?
Linked to the above concern of the review possibly taking a pre-determined approach, we also express our reservations that the Parliamentary terms of reference could be interpreted as favouring rationalisation as the only option for restructuring.
Sections (a) and (b) of the Terms of Reference states that the Review aims to assess:
a) “whether the current and intended Constitutional and legal mandates of these institutions are suitable for the South African environment, consumption of resources by them is justified in relation to their outputs and contribution to democracy, and whether a rationalisation of function, role or organisation is desirable or will diminish the focus on important areas would tend to favour cuts and rationalisation of these important institutions (emphasis ours).” – Source - Minutes of Proceedings of National Assembly – Thursday 21 September 2006 no.46, Third Session, Third Parliament.
These terms could be interpreted to mean that, in the Committee’s assessment cuts and rationalisation of ISD’s is an inevitable outcome. In the context of the fiscally conservative philosophies adopted post 1996, this raises the spectre of a fiscally driven restructuring approach, even if this is not the intention. Current resources available to the State, and the imperatives of transformation, suggest that such an approach, if it ever had merit in the past, would certainly be inappropriate today.
We disagree with the line of thought that a priori proposes that an organ of state should be able to perform within a given amount of resources, no matter how arbitrarily this is determined. The alternative view (which we advocate) is that outputs should first be prescribed, and that based on this coherent vision, it is determined what type of financial and other resources should be granted to an institution. To do this however, Parliament would inter alia need substantial powers to amend or influence money bills.
The issue of rationalisation of institutions cannot obviously be precluded. This however should be treated with great circumspection, and subject to detailed public consultation.
This is a particularly important and long overdue intervention, since it cuts to the heart of a series of challenges, in relation to funds allocated by the Executive. Our longstanding demand that appropriate legislation be passed allowing Parliament to amend money bills and our opposition to a flawed Money Laws Amendment arrangement, is relevant to the current fiscal arrangements of funding of several ISD’s.
Unless Parliament is able to influence and ensure adequate resources accruing to ISD’s, without interference of the Executive, in particular the current unconstitutional practices of the Treasury[7], funding constraints will significantly compromise and seriously impede the efficacy of ISD’s. The very real danger exists that this funding mechanism may unfairly allow the political preferences of the Executive to unduly influence ISD’s.
We again wish to clarify our position on this matter. We stress that, from evidence and reports that we have read, we would agree that there are several ISD’s that have performed very poorly and require drastic intervention, and which may require radical restructuring. However, these interventions should not apply across the ISD spectrum, particularly with regards to those who are performing well, and are in fact limited by financial and other resources. It should also be determined where sub optimal performance is due to, or influenced by, under funding of some of the institutions. In fact, we argue that it would be prudent to consider that there may be ISD’s, which actually require additional funds. Even though these additional funds may, with some ISD’s initially require independent administration, for example through an audit committee, there may be sufficient reason for doing so, so as to address existing shortcomings. To break this hegemony by Treasury over Parliament, and in this case the indirect consequences on ISD’s, COSATU therefore urges the Committee to urge the Joint Budget Committee and Portfolio Committee for Finance, to call for the urgent tabling of a Money Laws Amendment Bill, and a speedy resolution to this long-standing hiatus in the execution of its Constitutional imperative.
Increasing Parliamentary oversight and civil society participation
With regards to the terms of reference “reviewing the appropriateness of the appointment and employment arrangements for commissions and their secretariats with a view to enhanced consistency, coherence, accountability and affordability”, we agree that such outcomes are desirable and necessary. We believe the Committee should also look at the implementation of the Constitutional provision which allows for civil society participation in the appointment of commissioners; and examine whether the provisions for recall in the Constitution, based on misconduct, incompetence or incapacity should have been invoked, given the non-performance of some of these institutions.
In relation to the appointment of Commissioners and other office bearers to ISD’s, the perception remains strong that a number of appointments have been made based on narrow party political horse-trading, rather than competence, and broad credibility with organisations operating in the relevant areas. To that extent, there is a need to review the appointment process, and the role of civil society in that regard, as well as the representivity of these institutions. It is problematic for example that in virtually all important ISD’s, no commissioners have been appointed with a background in the labour movement. The same could be said for other important sectors of society.
The SA Context strongly shapes efficacy and performance
Whilst the democratic election of 1994 marked a decisive moment in the transition to a democracy, we struggle 12 years later to meet the challenges of equitable and redistributive economic growth and sustainable social development.
In fairness to the ISD’s, the inability to significantly contribute to the realisation of socio-economic rights, as enshrined in our Constitution has been strongly influenced by both external and internal factors.
External constraints
Firstly, the past decade, roughly the average period in which the ISD’s were active, has been characterised by very challenging conditions. As far back as 1995, government, business and labour all agreed that high unemployment levels (consistently at crisis levels for comparative middle income countries); income inequalities (consistently amongst the highest in the world); a shortage of critical skills concentration of economic power, skewed patterns of social development and infrastructure, were critical challenges to be overcome.[8]
Economic growth has been positive for many years now. However, it has been in favour of the wealthier segment of the South African population. The stubborn legacy of apartheid, in particular the elusive attainment of economic freedom, fundamentally impacts on the living conditions of the majority of South Africans today.
These factors strongly impact on the extent to which ISD’s are able to execute their mandates. Even key government departments, with greater resources, both financial, human resource and in terms of legal powers, have struggled to deliver services within this context. The mandates of several ISD’s, some which are largely constrained and limited to promote; investigate; monitor and evaluate’ are more difficult to implement, in the absence of stronger powers and functions, or greater independence.
In effect, the degree to which ISD’s impact and outcomes can be visibly seen and quantified, is disproportionately affected by our current development context and challenges.
An example of this is access to the critical information provided by the Independent Electoral Commission (IEC). For those of us with computers and access to the Internet, we were able, from the comfort of our home, with no hassle and no fuss, to ascertain whether we were on the voters’ roll in our ward and municipality.
By comparison, a farmworker in a rural, sparsely populated area, may have needed to wait until a Saturday morning, spent much needed cash to travel many kilometres to a town large enough to have an IEC access point, and confirm her or his status, if he/she had an valid identity document, of course. The perception of the efficacy of ISD’s is therefore critically linked to income category, mobility, geographic location and the quality of service of key government Department, in this case, the Department of Home Affairs, with regards to the ID document.
These socio-economic hardships are very real to trade union members and their families. Losing one’s job, insurmountable debt, the inability to provide a decent education for your offspring, the ravages of HIV/AIDS, opportunistic infections and poor nutrition are daily experiences for millions of working people in SA. The extent to which the ISD’s are limited by these challenges, which inhibit citizens from access to its services, or have failed to do so, is telling.
The accessibility of the ISDs to the constituencies they are meant to serve, can be highlighted by certain questions, including:
Challenges regarding intergovernmental and funding relations
Generally, less than ideal relations with organs of the State
In several reported cases, the nature of the relationship between the Chapter 9 Institution, and a government department, or state entity with which it has to work does impact on the efficacy of the said Chapter 9 institution. This is no secret and examples abound. It was admitted to this Committee by the head of one Chapter 9 Institution body that “what was missing from the review was an assessment of the nature of the relationship between institutions and their ‘sponsoring departments’ which in many cases encumbered the work of the institution’” and that it was imperative to “establish who was responsible for determining that relationship”[9].
A
more worrisome but telling response, is the extent to which the head of an
organ of the State is able to publicly dismiss the opinion, work, and
contribution of Chapter 9 Instititutions, whether merited or not, and without
censure. Recently, for example, in answer to a Parliamentary question, the
Auditor-General's statement that there is a shortage of skills in the detective
service, drew the following response from Police Commissioner Jackie Selebi:
"If it is the intention of the Auditor-General to say the detectives have
no skill or tell them how to do their work, that is wrong. I don't know how
they would come to that conclusion - what do they know about detective work?
Maybe the Auditor-General should go and get some improvement on auditing
skills and the police will do the same."[10]
COSATU finds this kind of communication destructive and unnecessary. If ever there were a need to build good co-operative governance, and have the political will to cement constructive intergovernmental/ state entity relations, it would be now.
Not only do such comments breakdown existing relations, but it sets an unhealthy precedent to departmental staff to emulate such an attitude. It may have been more constructive for the Police Commissioner to refer to the latest Programme of Action detailing the initiatives to “improve the quality of investigations (and time taken to conclude them) and evidence; and co-ordinated ongoing training of detectives already happening as a part of the latest ‘Justice, Crime Prevention & Security Cluster” initiative.[11]
Problematic Parliamentary arrangements
Secondly, poor oversight and inconsistent practices by Parliament, to whom ISD’s account is another damaging constraint. Also there is inconsistency in the appointment of commissioners. For example, whereas in most cases, Parliament instituted an ad hoc committee to appoint commissions and their secretariats, this was not the case for the Commission for Gender Equality (CGE), since the Portfolio Committee of Justice and Constitutional Development performed this task. The “lack of coherence in appointment and employment arrangements has led to variance …..in which posts were advertised”, with the result that , in some cases Parliament was in the dark about commissioners’ and executives’ salaries.[12] Consequently, levels of remuneration vary considerably within ISD’s and when compared with each other.
Problematic funding discrepancies
A recurring issue, raised by several ISD’s is the issue of funding arrangements. Requests for assistance from appropriate government departments, the National Treasury and lobbying Parliament, has had a very poor response. Whether due to inefficient or very slow communication channels within Government and Parliament, a misunderstanding of roles, or political dynamics, the work of some ISD’s have almost ground to a halt, the CGE as a case in point.
There is an acknowledgement that there are huge funding discrepancies. Appendix 1 of this submission demonstrates the varying range of funds accorded to 4 different ISD’s (we have limited the analysis to these 4 because of difficulty in accessing information).
Evidence of concerns regarding funding options was clearly voiced by heads of ISD’s. Amongst other, funding concerns included the following:
COSATU acknowledges that the State continues to spend a significant amount of money, around R3.8 billion on ISD’s. Every cent of it should be accounted for as legislation requires. However, this amounts to around 0.8% of current expenditure (around R474 billion, up 14% compared to last year). When the potential significance of the ISD’s is compared to other, equally significant expenses, we believe that it is a reasonable amount of money, if these institutions performed their constitutional functions effectively. Indeed, it could be argued that these funds should be increased based on the approach outlined above of output based budgeting, if it could be demonstrated that institutions were underfunded in relation to programmes required to fully implement their mandate.
We are therefore pleased that the Chairperson assured members that they would look at the whole complex manner in which all the institutions were funded as well as the funding processes that were adhered to, in the context of these various complexities.
These are but a few of the external constraints and challenges affecting ISD’s. Despite Constitutional and legal considerations within which legislation affecting the ISD’s were crafted, the volatility and fragility of socio-economic conditions for most South Africans has had a roller-coaster effect on the conditions of life of many families, who are unnecessarily subject to the vagaries of the market. This in turn has an impact on the efficacy, accessibility, and relevance of these very institutions.
Specific inputs on selected ISD’s – watchdogs, lapdogs or lonely mongrels?
South African Human Rights Commission
The South African Human Rights Commission (SAHRC) is a critical ISD insofar as it is able to advance the attainment of socio-economic rights. Section 184(3) of the Constitution “empowers the HRC on an annual basis to require reports from relevant state organs to assess whether the state is effectively putting in place policies which will lead to the ‘progressive realisation’ of socio-economic rights”. Perhaps more importantly, S 184(2) (b) empowers the HRC to “take steps to secure appropriate redress where human rights have been violated”. An examination is required to determine to what extent the HRC has acted in terms of this clause, and what other methods could be used, including litigation, to ensure defence of people’s rights.
The HRC’s assessment of progress by government departments in realising their socio-economic obligations can help to shape the priorities and programmes of government, in that it could:
· provide a platform for progressive elements in society to link an agenda for socio-economic transformation to obligations contained in the constitution,
· provide an opportunity to define (or redefine) the role of the state as an institution designed to address the needs of the poor and to overcome inequality, and
· linked with international obligations, including the International Covenant on Social Economic and Cultural Rights, provide a foothold against retrogressive aspects of globalisation.[15]
The extent to which COSATU has, in its proposals, suggested that the SAHRC be instrumental in taking forward various interventions and resolutions, underscores the importance we accord to the role of this ISD.
Amongst other, COSATU has over the years, suggested that the SAHRC:
· COSATU asserted that the South African Human Rights Commission (SAHRC) as a human rights watchdog, should involve other progressive organisations, and “continue to monitor the implementation of these laws (Constitutionally defined progressive legislation designed to undo apartheid laws)”, and called for an intensification of this role.[18]
· We proposed that the SAHRC receive sufficient resources to enable it to perform the duties imposed on it by the Open Democracy Act – which helps to facilitate greater proactive disclosure of information by organs of the State and have elements of this law extended to the private sector.[19]
Our most direct interaction with the SAHRC has been our engagement with them around the COSATU/SAAPAWU Submission to the SAHRC’s National Inquiry Into Human Rights Violations In Farming Communities, in December 2001.
The scope of issues addressed in that particular submission – ranging from Land Rights and Tenancy, Safety and Security, Social and Economic Rights, as well as Political rights, demonstrated the extent to which the SAHRC needed to consider and report on/investigate or address the broad nature of human rights violations on farming communities, and by extension, amongst the poorest and most vulnerable of civil society in a post-apartheid South Africa.
Finally, we proposed that they facilitate a process to coordinate greater interdependence between different government departments, with regards to formulating policies, draft legislation and procedures entrenched in a progressive human rights context, since it has a core responsibility to ensure protection of human rights in general, but also has the power to inquire into the functioning of organs of state in relation to the realisation of human rights.
Overall, the SAHRC, both the Commissioners and the Secretariat have discharged their duties better than other ISD’s, but there is still huge room for improvement.
No legislation or policy obliges the SAHRC to forge a relationship with civil society organizations. The decision therefore to engage actively with CSO’s was a deliberate decision, which is to be applauded and emulated.
For reasons described above, COSATU believes that the SAHRC, with appropriate resources and support, could be able support other Chapter 9 and Associated Institutions to significantly improve their outcomes and efficiency.
Public Protector’s Office
The Public Protector receives and investigates complaints from the public against government or its officials, and has the power to recommend corrective action and to issue reports. These services are free and available to everyone, with confidentiality ensured as far as possible.
In the case of the Public Protector, the question should strongly be asked, who then holds the Public Protector accountable? In the first ever presentation to Parliament[20], the OPP revealed that it received 17 281 cases in 2005/6, and finalised 16 440 (with 80% of these adhering to Service Delivery Indicators). It struggles with 14 000 cases held over from previous years, however. Investigations include:
As part of identify “systemic shortcoming and root causes of complaints”, it completed investigations on the
RDP Housing Kouga Municipality ; Irregularities at Refugee Centres; Civil Pensions (GEPF) late payments; UIF Delays in payments; Compensation Commissioner, and others. As part of own initiative investigations, it investigated allegations in connection with the Head of the Johannesburg Metro Police; allegations of impropriety relating to the affairs of the Tshwane Metro Police;
allegations of a failure by the Department of Justice and Constitutional Development to comply with a directive of the Department of Labour; apparent failure by Departments of the Eastern Cape Provincial Government to comply with Court orders
and; reported on allegations of Misappropriation of Public Funds by the Gauteng Department of Housing; report on the ”so-called Oilgate Investigation”, and “improper conduct by the municipal council and official of the Indaka local municipality”.
Perceptions around the manner in which the Oilgate scandal was handled led to a serious decrease in citizens’ confidence. Recent allegations of sexual harassment, and behind-closed doors meeting in parliament to “investigate operational problems” in the Protector’s office, further compromised the credibility of this office, in the eyes of many citizens.
Several challenges have been acknowledged by the Office itself – these include:
Lacking adequate mechanisms for functioning effectively in rural areas
With offices in five provinces, namely Eastern Cape, KwaZulu-Natal, Mpumalanga, North West and Western Cape, and a national head office in Pretoria, Gauteng, it is surprising that the work of this important institution is not better known. 2 provincial offices were only established recently, after protracted engagements with the National Treasury to make such funds available.
One of the bizarre arrangements is that “complaints from the Northern Cape are handled by the North West office”[21]. A person in Springbok may need therefore to travel almost 1000 Kms to lay a complaint!
Whilst 43 clinics were established and are conducted monthly across the country, enhanced public awareness campaigns and workshops have resulted in a 29% increase in complaints received. Other joint initiatives claimed include civil advocacy programmes with the HRC and CGE.
Poor civil society interactions
COSATU concurs with independent research that found the OPP’s relationships with civil society organisations are limited, or somewhat tense to the extent that they do exist. In trying to finalise this submission for example, the writer found it almost impossible to find the home page of the public protector, clearly an institution that should be most visible and accessible to the ordinary citizen.
There appears to be the lack of a clear outreach strategy. As with the National Youth Commission, there are disjunctures between the National Office and the provincial offices about how to relate with CSOs and alert more people to the services of the Office.
The extent to which the Public Protector’s Office could be considered effective and strong, is a debatable matter. Whilst such an office can keep government in check, it simultaneously can (and should) maintain the public's faith in the system of democracy if it puts in place strong interventions to deal with corruption; poor administration and maladministration. With this in place, the Public Protector will promote local and international confidence, thereby helping to effect the tenets of good governance.
Based on available information, it appears that a governance and management audit will produce a poor report on the performance of the Public Protector. If oversight of this important office is to be taken seriously by Parliament, measures should be taken in line with the Constitution, to ensure that the Public Protector is more accountable to the public, and even ultimately can be removed from office, in line with the provisions of Section 194 (1) of the Constitution.
Auditor General
An important difference in the Office of the Auditor-General (AG) compared to most other ISD’s, is that its source of revenue is self-generated. This revenue is substantial and collected as audit fees from organs of the State (National, provincial, local and state entities) that it is required, to audit.
The AG’s work and mandate is prescribed by the Public Audit Act. Its latest financial statements reveal a budget of R 784 million. This largely pays the fees for approx 1700 persons (with registered trainees in 5 institutions) it uses to fulfil its work. In terms of its accountability to Parliament, it reports to the National Assembly and a separate Ad Hoc Committee for the Auditor-General.
As a result of this financial arrangement, it is technically, freely able
to comment on the financial compliance and performance of the State, and free of any attached financial strings. On the whole, in terms of work throughput and technical aspects of its work, the AG’s office has been consistent and thorough.
However, this good work has been tarnished by what now emerges from the controversial arms deal (Strategic Defence Procurement Deal) in the 1990’s. In the Strategic Defence Packages Joint Report, signed by the then Auditor-General, then Public Protector and then-National Director of Public Prosecutions in November 2001, they assert that:
‘No evidence was found of any improper or unlawful conduct by the government. The irregularities and improprieties referred to in the findings as contained in this report, point to the conduct of the officials of the government departments involved and cannot, in our view, be ascribed to the President or the Ministers involved in their capacity as members of the Ministers’ Committee or Cabinet. There are therefore no grounds to suggest that the Government’s contracting position is flawed….’[22] (emphasis added)
Subsequently , President Mbeki asserted that the South Africa's arms deal bidding process was "perfectly correct" and not affected by any corruption.[23]
More recently (2006), evidence points to the possibility that the Ag’s report could have failed, deliberately or otherwise, to expose far more serious acts of corruption. It is alleged that “R1-billion in dodgy commissions” were paid to senior officials and politicians – in the form of retainers, and other means. It is further alleged that the late Minister of Defence, was guilty of “blatantly manipulat[ing] tender rules to favour BAE and tried to benefit from offset contracts”[24]
The renewed focus on the arms deal, based on the request for legal assistance by the British Serious Fraud Office (SFO) to the SA Justice Department more than six months ago, brought to light that a total of “more than R1-billion had been paid to eight different entities in relation to the South Africa deal”. How this “oversight” came to be is a matter of great concern. A greater concern however, is the perception that problematic reports from the AG’s office may have been influenced by higher forces to cover-up graft. The obvious question arises- could alleged corruption of this magnitude have escaped the attention of the AG’s audit? The jury remains out on this point.
If the above allegations of corrupt practices are true, the real victims include the poor and disadvantaged, who were denied State resources to realise the Constitutionally-enshrined right to their socio-economic rights.
Public Service Commission
There appears to be praise in some quarters for this important institution, but this is contested in other quarters. Some journalists claim that it is “a trusty and reliable watchdog”.[25] With approximately 1.1 million civil servants, its scope is broad, includes national and provincial (and in the future, perhaps even local government) departments.
The powers of the PSC are meant to be those of persuasion, inspection and lobbying. It has made its finding and recommendations, a matter of public record. Its website reveals that in the 2 last years, it produced reports on:
· An Overview of Financial Misconduct in the Public Service for the 2004/2005 – Aug 2006
· The Evaluation of the Policy Framework on Managing HIV and Aids in the Public Service – June 2006
· The Fifth Annual State of the Public Service Report: Girding the Public Service with the Appropriate
Capacity for Effective Service Delivery and Adherence to the Values of the Constitution – May 2006
· Statements by the Secretariat of the National Anti-Corruption Forum – May 2006
· Public Services pledges by Directors-General – December 2005
Unfortunately the PSC does not seem to have played its proper role in developing a clear vision for the Public Service. It has been marginal in the debate about public sector transformation, and has not played the type of role it should have in engaging with labour and government, on policy options in this regard.
We concur with the PSC that we need to “develop a public service cadre with a strong moral and ethical commitment to the public service”. However, there has been a tendency by some that this requires a disproportionately higher remuneration of senior management in the civil service. It is a notion that we reject and will, amongst other, create a “free for all” approach to remuneration and benefits, which goes against the ethos of a developmental state. In this regard, the work of the PSC, insofar as it assesses the performance and efficiency of civil servants, could be crucial.
COSATU would recommend that the PSC could:
· As per reports by the Auditor-General, ensure that extensive moonlighting amongst senior civil servants, especially which involves interaction with private sector interests, which constitute a clear conflict of interests, will be speedily dealt with and prosecuted. [26]
· Make available regular reports on the extent to which Batho Pele principles are being attained.
Commission on Gender Equality
The CGE’s work has been multifaceted and addressed very complex issues in our country. Upon reflection, one Commissioner felt that the work of the CGE was perhaps “too august (women’s month) and ghetto-ised.” At the same time, a view was expressed that interventions were too thinly spread and unsustained.
The work of the CGE also continues to operate within a system where the ideological apparatus of gender inequality is enforced and remains very strong. One strategy that, according to a Commissioner was a strategic and successful intervention, was “pushing for gender targets within the civil service”. Today, the PFMA and other public sector policy requirements require every report by organs of the State to give an account of targets, amongst other, along gender ratios. International evidence reveals that the strategy of pushing targets is a strong stimulant of institutional and other changes.
We would like to record that COSATU and the CGE both lost a “true revolutionary, gender activist and a teacher” with the passing away of Comrade Pinkie Mbowane in 2004. As Vice-President for Gender at the South African Democratic Teachers Union and a teacher for 25 years, she was nominated by the Federation to become a Commissioner for CGE as from 1997, where she chaired the committee for National Public Education on Gender and played an Advisory, supportive and monitoring role. Here she led one of the most difficult challenges such as “developing close ties and initiating activities with the House of Traditional Leaders in the Northern Province to create common understanding on customary laws and traditional practices”.[27]
Many operational challenges, linked to the CGE’s capacity to deal with the number of queries and requests for assistance, plagued the Commission. Key amongst these were the demands placed on the CGE’s legal Department. Within this unit there was a high turnover of staff, mainly due to overwork. Today the CGE faces a backlog of 2 years, clearly an untenable situation. This situation, it is argued by a former commissioner we interviewed, could have been different, if the “Legal Department of the Complaints Division was more selective and strategic. With hindsight, it should not have behaved like an advice office, and instead have referred cases to NGO’s and paralegals”.
To deal with queries, complaints and requests for intervention, it became apparent that education officers needed to have comprehensive knowledge of the law.
Despite requests to address these serious challenges, the CGE for a very long period of time, it is claimed, did not have a reply from the Treasury with regards to financial assistance.
Overall therefore, the work of the CGE, despite some useful interventions, projects and programmes, was largely very inefficient. Comparisons between South Africa’s CGE with the work of a similar unit in Australia, makes the extent of the shortcomings of SA all the more glaring.
Other serious internal problems plagued the CGE. One example has been the impasse experienced after expensive computer software was purchased, but as a result of large turnover of staff, existing staff was unable to understand the software. The bureaucracy within the CGE with regards to hierarchical decision-making processes was ironically hampered by the patriarchal structure and practices of CGE leadership.
In relation to Parliament, it remains unclear which Committee or authority in Parliament had to deal with and act upon the CEDAW Reports. Similar complaints have also been made to Parliament by other ISD’s.
Work in 2006 was minimal, given the fact that the term of office of the Commissioners came to an end, and government took 6 months to appoint new Commissioners. Thus only work around’16 days of Activism” occurred in this year.
Finally, the CGE is characterised by instability. Prior to 2000, the CGE was more active to some extent, but has now become reactive and immobile again.
COSATU’s contribution to the gender equality debate at a parliamentary level was made inter alia through its Submission on Employment Equity to the Portfolio Committee for Labour in April 2000. In its submission, it highlighted the setback in a Labour Appeal Court ruling where the “judgement overturned the order of the Labour Court for Woolworths to pay R200 000 compensation to Beverly Whitehead…The Labour Court had found that Woolworths unfairly discriminated against prospective employee, but the Appeal Court ruled that it was “economically irrational" for an employer not to take into account the pregnancy of a prospective employee, adding that the recruitment of pregnant women could impact negatively on the capacity of the economy.”
Gender inequality in the workplace was dealt a blow in this ruling. The Federation appreciates the extent to which this kind of inequality is prevalent in our society and almost become the norm within the thinking of certain corporations.
The CRL Commission
After intense negotiations with the Volkstaat Council[28], whose purpose was to make recommendations regarding cultural self-determination and to explore the constitutional possibility of the establishment of an Afrikaner Volkstaat, it was agreed that the work of the Volkstaat Council be taken forward by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission).
Perhaps this is one Commission that should never have been established. Its
establishment arose from a late night concession by the ANC during negotiations, ostensibly to appease a demand by then-General Constand Viljoen – about Afrikaans, rather than culture and languages per se.
Significant attempts were made to break from its controversial birth. Efforts include the proposals for the formal celebration of “Africa Day” signifying “an important event in the liberation of Africa and its culture from the shackles of colonialism, in particular the effect of colonialism on the African culture.
In this proposal, the CRL Commission quotes the Cultural Charter for Africa, stating that:
“Cultural domination [under colonial domination] led to the depersonalization of the African peoples, falsified their history, systematically disparaged and combated African values, and tried to replace progressively and officially, their languages by that of the colonizer, that colonization has encouraged the formation of an elite which is often alienated from its culture and susceptible to assimilation and that a serious gap has been opened between the said elite an the African popular masses.”[29]
It suggests that the celebration of these days will go a long way in promoting national unity through the respect for cultural, religious and linguistic diversity in South Africa as well as encouraging the “rehabilitation, restoration, preservation and promotion of the African cultural heritage”. The extent to which the celebration of these days was directly due to the work of the CRL Commission is unclear.
The CRL Commission was also instrumental in bringing about hearings, in partnership with the SAHRC and the National House for Traditional Leaders (NHTL) to find solutions to the ongoing problems of traditional initiation, which involves circumcision of initiates. Recently, there have been a number of deaths linked to this practice due to lack of regulations, guidelines and proper procedures in this traditional practice. The CRL Commission’s Chairperson urged that solutions would be found to assist in protecting and preserving the custom.
Despite an unqualified audit, the Commission functions on a very limited budget (around R13 million per annum). It is not clear whether this Commission will adequately be able to fully implement its mandate on current resources. The work of the Commission has increasingly been seen as important by other Chapter 9 Institutions. However, its presence is largely unfelt amongst the SA population – it may require significant restructuring or be included in, for example the work of the SA Human Rights Commission, with whom it already has a working relationship.
Financial and Fiscal Commission
For many years COSATU has been broadly supportive of the work of the FFC. In particular, we supported its costed norms approach, namely that “fiscal policy needs to start with identifying acceptable norms and standards and thereafter quantifying the fiscal resources required to fund these”. In previous submissions, we challenged Parliament to help bridge the gap between costed norms approach and the projected expenditure for each financial next year, particularly since there were real cuts in various aspects of social and economic expenditure in the past.[30]
On an annual basis, the FFC have made recommendations on critical matters that required specific skills and knowledge. Recently, it commented on a range of important developments including the alignment of the new housing subsidies with the Municipal Infrastructure Grants and the Local Government Equitable Share formula; the funding of transport, and environmental health.
Despite receiving an unqualified audit report, the FFC seems to be facing serious problems. These include a high staff turnover and gender equity challenges. Already, the Commission has “developed a job level and remuneration range formula that was under discussion with the Department of Public Services and Administration.”
Again, in frank discussions in Parliament, the FFC expressed its concerns regarding the difficulties that the Commission had in “defining exactly its roles, reporting lines, accountability and benchmarking of salaries. It was clear that its enabling legislation did not assist in formulating exactly how it should be structured. It requested the Committee’s assistance in defining its roles and in drawing the necessary legislation.”
This led to proposals that the legislation governing the FFC also be amended. In a strange request, the FFC asked that these “problems also be conveyed to National Treasury and the Minister”.
A unique challenge of the FFC, is that it initially was a Chapter 13 institution, “along with others such as the Revenue Services (SARS) and the Reserve Bank, all of which required a very specialised knowledge base and specific skills in fields such as macro-economics, fiscal policy and development”. Whilst many of the FFC staff attended universities and obtained Masters and Doctoral degrees, these staff members became a target for head-hunting by other public institutions, including National Treasury and Reserve Bank, and private firms. Levels of remuneration are therefore one of the major reasons why people left the FFC.
Other challenges, according to Jaya Josie (FFC Deputy Chairperson) include:
· The fact that ‘it was not in quite the same position as the Reserve Bank or SARS because its recommendations did not directly influence government policy’.
· FFC Commissioners, despite holding the highest qualifications and experience, were still being paid on part-time rates. The remuneration was set by Presidential decision. Commissioners did not have conditions and terms of employment, had no performance contracts, and, despite their onerous accounting responsibilities, were not being properly remunerated. They were paid for the number of hours at meetings. By way of contrast those in similar positions in India were appointed at junior minister level, and in Australia they fell under the auspices of the Ministry.
· Battles for the FFC’s Board to reach a quorum.
Financial and Fiscal Commission’s 2005/6 Annual Report Presentation to the Finance Select Committee – 1 November 2006 (www.pmg.org.za/viewminute.php?id=8458)
Clearly the current operational arrangements of the FFC require significant changes. However, in order that the FFC maintains its independence and integrity, we strongly urge that the challenges regarding its sources of funding; powers, functions and mandate be overseen more vigorously by Parliament and given the necessary support. Its capacity to perform its work, requires a fair degree of independence. We suggest that the financial arrangements, are not dependent on the Treasury, whose policies it critiques.
Independent Electoral Commission
In 2006 COSATU condemned the denial of farm and domestic workers, by individual farm owners, of the right to go and exercise their right to vote on 1 March 2006. Workers were intimidated by individual employers. They threatened that people would lose their jobs if they did not come to work on 1 March 2006. This despite the fact that it was a declared public holiday! These attitudes of arrogance and racism are to be condemned.[31]
Detailed searches revealed no condemnation or even criticism of such practices by the IEC. Whilst there is an appreciation that the IEC wishes to remain impartial and neutral, its failure to strongly promote democratic practices, and rather focus on the mere technicalities of the election, is a shortcoming. It could be perceived as being insensitive to the experiences of people. When compared to the work of another Commission, such as the TRC, the impact of an absence of public comment is stark. The IEC could definitely be more outspoken, in this regard.
The IEC could also be accused of a degree of naivety with regards to appropriate interventions required to increase voter registration. In one of its publications, the
the Electoral Institute of Southern Africa (EISA) provided some insight on the NorthWest election situation.
It claimed that:
“….registration figures released earlier by the IEC indicated that there had been a notable decline in registration rates in the North West. This suggests that, despite their efforts the IEC may not arrest the envisaged decline in participation rates in the North West province. It is tempting to conclude that the participation gap between the rural poor and others will, at least to some extent, be addressed…… however the extent to which this occurs depends largely on how effective these interventions were prior to the registration drive. The ability of political parties and voter educators to gain assured access to the rural poor will have no impact if the rural poor had not registered earlier……mirroring this pessimism is the fact that the marked increase in the number of voting stations across the country will have a minimal impact on the North West” - EISA Electoral Update (March 2004).
COSATU would contend that interventions to address the North West challenges, such as voter education, and increasing voter stations fall far short of ensuring change. Interventions including legal recourse against persons withholding employees from exercising their democratic right to vote, and other more drastic steps, are clearly needed. We would recommend that, along with support from the SAHRC, the IEC be mandated to find more incisive mechanisms to ensure that all citizens can vote.
Previous comments on the arrangements and challenges of this ISD are contained in an earlier section (external constraints). Whilst the IEC’s work in ensuring election results that are free and fair, we believe that its self-assessment is somewhat rosy and decidedly naïve when evaluating its service to poor, marginalised and rural communities.
Therefore public claims by the IEC that it has won the trust of SA voters require testing. In reality there has been a reduction in voters over the last ten years. Some would dismiss this as a positive sign, often seen in developed countries as a result of “normal politics.” Furthermore, claims that “reductions in budgets” can be attributed to improved efficiency, it remains a mystery why instead, these resources were rather not spent on campaigns encouraging more voters to register, or establishing ways in which to increase the voter percentage, particularly in areas where these were low due to infrastructure, and other constraints. The IEC also did not assess whether in fact, there was distrust in the electoral process.
On reaching voters, the IEC prides itself on the fact that its "standards for communication and public awareness" were thorough. However, others would assert that these were unduly technology dependent - without same balance of door-to-door campaigning, thereby directly creating more jobs for appropriately trained youth, for example.
Whilst the IEC did make efforts to ensure that those most disenfranchised were reached, there is feedback from voters that the registration of voters could have been more thorough. For example, a peace officer that worked in the wealthiest municipality in South Africa interviewed by COSATU, “personally saw poor people being turned away because they were not registered at the particular polling station….they were living on a farm before and did not know they had to be registered to vote at their new polling station”.[32]
Furthermore, whilst voter education is primarily an activity aimed at the poorest in our society, failure to continue focussing on voter education could lead to our democracy being dominated by those “in the know”, and subtly the poor will be squeezed out.
Whilst the IEC
correctly takes pride in the fact that their financial records are squeaky
clean, with unqualified Audited Statements (ever since its inception), it
remains unclear whether a governance and management audit was done, or its
findings. Currently the IEC has a budget of R 604 million.
Support for democratic elections in the Congo and Burundi by the IEC are commendable. Donations of around 14 000 polling booths; and around 7000 polling boxes in Burundi, and recent logistical and technical support to the Congo with a population of 60 million plus, are noteworthy, insofar that it promotes peace and democracy in Africa.
Yet these international initiatives must be preceded by a service to South Africans that takes its unique logistical, geographic and technical challenges into consideration. Our international outreach should be balanced with internal excellence. By way of example, we are unclear why selected communities were targeted in the IEC’s “outreach programmes”. Programmes listed are the election of SRC’s at tertiary institutions; SALGA [Gauteng]; SA Nursing Council; and Eastern Cape Taxi Association.
In this regard, why were other regions excluded? It is also not known whether churches were targeted (in terms of voter education and outreach). If not, it is a major oversight since churches are based in every single community in South Africa.
Recommendations
Based on the aforementioned insights, COSATU recommends that:
1. Appointment of Commissioners: In relation to the appointment of Commissioners and other office bearers to ISD’s, the perception remains strong that a number of appointments have been made based on narrow party political horse-trading, rather than competence, or broad credibility with organisations operating in the relevant areas. To that extent, there is a need to review the appointment process, and the role of civil society in that regard, as well as the representivity of these institutions. In our view this, combined with other corrective measures to improve their functioning, will improve the credibility and profile of the ISD’s. Therefore, the Committee should recommend how to take forward Section 193(6) of the Constitution, which provides for such civil society participation.
2. Parliamentary oversight: Parliament needs to strengthen its oversight role over ISD’s, and assert this role when ISD’s fail to comply with Constitutional mandates. Hearings on different aspects of their functioning could be held in provincial and national legislatures on a regular basis. In addition Parliament needs to insist that Constitutional provisions for regular annual reporting are strictly enforced, and that meaningful discussions are held on these reports, with the involvement of civil society. Best practices need to be given profile in these parliamentary processes, to encourage further consolidation of these institutions, as well as rigorous criticism of weaknesses where necessary, to ensure that corrective action is taken.
3. Co-operation with civil society- it appears that relationships with civil society have broken down in the case of some ISD’s, and those that actively promote these relationships are in the minority. This impacts on the credibility and profile of the institutions, whose operational autonomy need not be compromised by a working relationship with organisations who play a key role in the relevant sectors. This Committee should give consideration to rectify this situation, including the possibility of requiring all ISD’s to set standing liaison committees with civil society, as was done by the HRC.
5. Financial Independence: Steps need to be taken to secure greater operational independence for the ISD’s particularly in relation to funding. Budget arrangements for the ISD’s (except the AG), should be modified to promote greater ISD and Parliamentary involvement. Budgets for ISD’s should be separated from that of Ministries and assistance be sought on how these budgets should be introduced, monitored and co-ordinated. Parliament should, as a matter of urgency, introduce legislation in terms of section 77 (3) of the Constitution to provide for a mechanism whereby it can amend money bills.
6. Recall of appointees: In our understanding, no use has been made of Section 194 of the Constitution providing for Parliament to remove the Public protector, the AG, or a Chapter 9 Commissioner. While no-one would want to rush into such an action, it is in the public interest that dysfunctional, incompetent appointees be removed, as the Constitution provides. We suggest that the Committee apply its mind to circumstance under which this power should be exercised, and in relation to current underperforming ISD’s, whether such action should be contemplated.
7. Enforcement of recommendations of Ch 9 Institutions/ISD’s: In several of the Parliamentary minutes concerning ISD’s, it is clear that Parliamentarians are unclear what to do with reports and recommendations from the institutions . COSATU proposes that this Committee needs to make recommendations on how to ensure that particular types of recommendations and interventions by the ISD’s, particular those aimed at advancing peoples constitutional rights become binding and enforceable on organs of state. The Committee needs to review existing legal provisions to determine whether they are adequate in this regard, and if necessary propose legal amendments.
8. Litigation: Ch9 Institutions and other ISD’s have been reluctant to use litigation to enforce people’s rights, and have focused instead on monitoring and reporting violations. This is despite the fact that they have the power to litigate. Indeed Section 184 (2) b of the Constitution provides that the HRC has powers “to take steps to secure appropriate redress where human rights have been violated”. The Committee needs to determine whether there are barriers to all the ISD’s, where appropriate, taking such action, or if some legislative amendments are required in this regard. If a department or organ of State fails to cooperate or disclose critical information, particularly after repeated attempts by the ISD to secure such cooperation from the organ of State, it should be clear whether the ISD, or an appropriate authority, is able to litigate. For example, it may well be that the National Treasury would have paid out outstanding pensions (around R2 billion) to persons in the Eastern Cape (a few years ago), had the SAHRC exercised such powers. While the preferred route for the ISD’s is clearly one of co-operation with organs of state, refusal to use litigation, where required, threatens to reduce them to toothless bulldogs.
9. Rationalisation: Possible restructuring and rationalisation of Ch 9 and other institutions cannot be ruled out. However such a decision would require careful consideration, and thorough canvassing of both these institutions and civil society. We propose that this committee needs to determine whether in its view such restructuring is necessary and desirable, and outline options which it believes have merit. Having done so, it should revert to civil society, state institutions, and ISDs and call for inputs on the pros and cons of such options, in the form of public hearings, both at a national and provincial level. Such hearings would also have the merit of both popularising the mandate of these institutions, as well as ensuring widespread national debate on this issue.
10. Forum: Thus far the Committee has focused on bilaterals with ISDs. It would be useful as part of this process to convene a forum for parliament and civil society to interact with these institutions, and consider ways in which their functioning could be improved.
o Should “continue to monitor the implementation of (anti-racist) laws” and intensify this role.[33]
o To monitor and act against abuses of most vulnerable workers in the rural areas.
o We proposed that the SAHRC receive sufficient resources to enable it to perform the duties imposed on it by the Open Democracy Act – which helps to facilitate greater proactive disclosure of information by organs of the State and have elements of this law extended to the private sector.
Appendix 1: Funding source and resources of ISD’s[34]:
|
ISD |
Source of Funding + Legislation |
Annual Budget |
Size of Staff |
Audit Reports |
Reports to |
Appointed by |
|
Independent Communications Authority of South Africa (ICASA) |
Dept of Communications
Collects on behalf of National Revenue Fund (NRF) – ICASA responsible for admin and collection of fees
Independent Communications Authority of South Africa Act No 13 of 2000.
Electronic Communications Act
PFMA PAJA and others |
Inc: R144.7 m [35] Exp: R178.6m (deficit from operations – R33.9 m)
|
316 (284 Permanent Employees) Gender ratio: 146F: 170M |
Very Poor - “internal controls and compliance with prescribed policies and procedures weakened”. “Qualified and emphasis of matters in the AG’s report on the annual financial statements Matters raised were repeats of those identified in 2006 – ICASA Annual Report - Financial statements |
Communications Portfolio Committee – Parliament Receives funds from Dept Communi-cations
|
7 Councillors appointed by the President of South Africa |
|
Office of the Auditor General |
Public Audit Act Audit fees from National; Provincial and Local Govt; State Entities and International |
Inc: R 764 m Exp: R784 m (deficit R 20m) |
Reg trainees with 5 institutions – employed +/-1700 persons for audits
|
Unqualified Audit |
National Assembly of Parliament Public accounts committee – Parliament
|
President of South Africa |
|
Office of the Public Protector |
Revenue constitutes a transfer payment from the Department of Justice and Constitutional Development (DOJCD). This revenue is wholly funded by National Treasury and is recognised as income when transferred by the Department of Justice and Constitutional Development. Public Protector Act 1994 Public Finance Management Act 1999 |
Inc: R50 m (2005) Exp: R 54 m Deficit : R 4 m |
275 posts 188 filled (83 vacant) 32% |
Unqualified Audit
|
National Assembly (presented Strategic Plan and Budget to NCOP for the first time since taking office – not compelled to do so) – Security and Constitutional Select Committee
|
President of SA, on recommendation of the National Assembly, i.t.o. Chapter 9 of the Constitution – 7 year appointment |
|
South African Human Rights Commission |
Human Rights Commission Act
Promotion of Equality and Unfair Discrimination Act of 2000 and
Promotion of Access to Information Act 2 of 2000 |
R49.2 million |
120 posts 106 filled (14 vacant) 12% |
Unqualified (Minor recommendations and inconsistent practices addressed without qualifying the audit)
|
National Assembly |
President of SA |
[1] Unless otherwise indicated, ISD’s refer to the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Independent Electoral Commission; the Independent Communications Authority of South Africa, as well as other associated constitutional bodies such as the Public Service Commission, the Financial and Fiscal Commission; the Pan South African Language Board, and the National Youth Commission.
[2] Question For Written Reply - Question No.: 251 to the Department: Justice And Constitutional Development by the National Assembly, 24 March 2006
[3] Chapter 9 Institutions Up for Review - May 23, 2006 – by Judith February
[4] 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” - 20 October 2006
[5] The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. Hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law – see also Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutcheson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.
[6] (see footnote 2)
[7] Section 77 of the constitution requires that a Money Bills Amendment Bill be tabled empowering parliament to amend all money bills, including the budget.
[8] Founding Declaration of NEDLAC – 18 February 1995
[9] Mongezi Guma – Chairperson of the CRL Rights Commission- Ad Hoc Committee On The Review Of State Institutions Supporting Constitutional Democracy, 20 October 2006. Terms Of Reference To Chapter Nine And Associated Institutions And Outline Of The Review Process
[10] Sunday Times – 28 January 2007, www.sundaytimes.co.za/article.aspx?ID=369331
[11] Programme of Action – 2006: www.info.gov.za/aboutgovt/poa/report/jcps.htm
[12] Ad
Hoc Committee On The Review Of State Institutions Supporting Constitutional
Democracy, 20 October 2006
Terms Of Reference To Chapter Nine And Associated Institutions And Outline Of
The Review Process
[13] “In dealing with the administrative independence of the Commission the Court found that it is for Parliament, and not the executive arm of government to provide for funding reasonably sufficient to enable the Commission to carry out its constitutional mandate. The Commission must accordingly be afforded an adequate opportunity to defend its budgetary requirements before Parliament or its relevant committees. Justice Langa D.P, found that the Department of Home Affairs, the Department of State Expenditure and the Minister of Finance have failed to appreciate the true import of the requirement of the Constitution which provides that the Commission be independent and subject only to the Constitution and the law, that it has the responsibility for managing elections, that it is accountable to the National Assembly and not to the executive, and that all other organs of the state must assist and protect it to ensure its independence” - New National Party Of South Africa V Government Of The Republic Of South Africa And Others - CCT 9/99 .
[14] Donor Funding for the CGE in 2004 and 2005 amounted to R1.61million and R 877 000 respectively.
[17] COSATU acknowledged that there exists the need to address both domestic and international terrorism. It proposed a review to establish whether this could, amongst other, be addressed through new omnibus legislation or existing legislation. However, given the wide ranging human rights implications and its political significance, we qualified our proposal for a review, and suggested that it should be undertaken by the South African Human Rights Commission (SAHRC) and that a Parliamentary Committee be specially set up for that purpose - Cosatu submission on The Anti-Terrorism Bill - Submitted to the Portfolio Committee on Safety and Security - www.cosatu.org.za/docs/2003/antiterr.htm.
[18] COSATU's Input to the SAHRC Public Hearings on Racism,kwaZulu-Natal Region, 26 July 2000 - http://www.cosatu.org.za/docs/2000/hrcracm.htm
[19] COSATU's Supplementary Submission on the Open Democracy Bill - presented to the Portfolio Committee on Justice and Constitutional Development, 30 November 1999
[20] Presentation To The Select Committee On Security And Constitutional Affairs, 29 May 2006
[21] www.info.gov.za
[22] Chapter 14: Key Findings and Recommendations of this Report
[23] Mbeki: Its all going swimmingly – Mail and Guardian 16 January 2007
[24] “How arms dealer got its hooks into the ANC” – Mail and Guardian, 19 January 2007.
[25] A fresh look at our watchdogs – Mail and Guardian, 21 November 2006.
[26] Ibid
[27] COSATU salutes Comrade Pinkie - www.cosatu.org.za/news/weekly/20040716.htm
[28] A temporary institution established by the interim Constitution between the Freedom Front, the African National Congress and the then government of the Republic of South Africa – dissolved in March 1999).
[29] Preamble of the Cultural Charter for Africa. Adopted by the OAU on 5 July 1976 in Port Louis, Mauritius and came into force on 19 September 1990.
[30] COSATU Submission on the FFC Recommendations for 2001-2004 MTEF Cycle and on 2001/02 MTEF , Submitted to the Select Committee on Finance 23 August 2000
[31] COSATU North West Election Statement - www.cosatu.org.za/press/2006/feb/press18.htm
[32] Interview with Revd Edwin Arrison – IEC Peace Officer, Overstrand Municipality – January 2007
[33] COSATU’s Input to the SAHRC Public Hearings on Racism, Kwa-Zulu Natal Region, 26 July 2000
[34] Source: Various – from Annual Reports of various ISD’s and reports to Parliament, as quoted on the Parliamentary Monitoring Group’s website
[35] For the year ending 30 March 2006