COMMENT BY THE F W DE KLERK FOUNDATION'S CENTRE FOR CONSTITUTIONAL RIGHTS ON STATE INSTITUTIONS SUPPORTING DEMOCRACY

Introduction

1. Our Constitution is of crucial importance for every person who lives in South Africa. The Constitution:

1.1 Guarantees our most basic rights, including our rights to dignity, equality, and freedom, to property and to democratic government;
1.2 Articulates the values for which the new South Africa stands and the goals for which the nation strives;
1.3 Recognises the equality and unity in diversity of all people and prohibits unfair discrimination;
1.4 Entrenches the rights of all to practice their religions and to speak and educate their children in the languages and cultural traditions of their choice.

2. For all these reasons, it is of particular importance that the institutions supporting democracy that were established by the Constitution and by law to help promote the values, ideals and standards that the Constitution articulates, should function effectively and as intended by the authors of the Constitution.

3. The following requirements must be addressed if these institutions are to play the roles envisaged for them in the Constitution:
3.1 Independence and impartiality;
3.2 Respect by government and civil society;
3.3 Clear and achievable mandates;
3.4 Adequate resources including sound human resources and financial management;
                     3.5 Accountability;
                     3.6 Effective parliamentary oversight; and
                     3.7 Accessibility and responsiveness to the public.

Independence and Impartiality

4.1 Clearly, institutions supporting democracy will lose much of their credibility if they are seen to be mere extensions of the government of the day. This is particularly the case with institutions that play important watch-dog functions such as:
The Human Rights Commission;
The Public Protector; and
The Auditor-General.

4.2 Accordingly, the greatest care should be taken to ensure that:
the chairpersons and governing bodies of the various institutions should be appointed in an impartial manner – as       envisaged by the Constitution; and that
the government of the day should respect their independence                     by word and deed.

4.3 The Government should withdraw its proposals that the Minister of Communications should have the key role in appointing the Chairperson and board of the Independent Communication Authority of South Africa.

4.4 The Public Protector should be encouraged to address perceptions that he is overly concerned with the sensitivities of                      government in the manner in which he carries out his duties.

4.5 The Public Protector has a crucial role to play in protecting the interests of ordinary South Africans from overbearing and inefficient bureaucrats and in ensuring their right to administrative justice. By definition, this task requires unquestioned independence on the part of the Public Protector and unstinting support from all levels of government.

Respect by government and civil society.

5.1 It is equally important that the chairpersons, governing bodies and staff of the various institutions should be carefully selected                      according to their:
moral reputation and probity;
independence of mind and approach;
professional qualifications;
diligence; and
general willingness to serve the public and the Constitution.

5.2 The personnel selected should be broadly representative of society, as required by sections 192(2) and 195(1)(i) of the                      Constitution.

5.3 It is essential that government should take the deliberations and recommendations of all institutions supporting democracy seriously; and that it should take whatever action might be necessary to correct problems that they identify.

5.4 The behaviour of some office bearers has from time to time brought such institutions into disrepute. The perception should be avoided at all costs that appointment to such       institutions is simply a ticket to an easy and lucrative employment.

Clear mandates

6.1 Some institutions supporting democracy have failed to achieve their full potential because they have ill-defined mandates and areas of concern that overlap with those of other institutions.

6.2 It is the mandate of the Human Rights Commission “to promote respect for human rights and a culture of human rights” and to “promote the protection, development and attainment of human rights.”  Presumably, this would give it the right to promote gender, cultural, children’s and administrative rights which are also the responsibility respectively of the Gender, CRL and Youth Commissions and of the Public Protector. There may also be some overlapping between the responsibility of the Pan South African Language Board to promote official languages and the responsibility of the CRL Commission to promote respect for the rights of linguistic communities.

6.3 The institutions must also have a clear grasp of their mandates. A country with so diverse a population as South Africa clearly needs institutions to promote respect for its various cultures, languages and religions. The failure of the CRL Commission to take any significant action in this regard is incomprehensible. 

6.4 Elimination of overlap and clear channels of communication with civil society are required.


Adequate financial and human resources and sound budgeting and human resources management

7.1 Institutions supporting democracy must also ensure that there is a reasonable balance between their human resources and operational budgets. Some institutions allocate nearly all their resources to salaries and other manpower costs and then find that they do not have sufficient funds for operations and activities to carry out their mandates.

7.2 Large bureaucracies are often not necessary for the performance of key tasks.

7.3 Sound management of financial and human resources, together with a clear vision of their mandates, is a key requirement for                      the successful functioning of these institutions.

Accountability

8.1 Institutions supporting democracy must be accountable for the cost-effective implementation of their mandates and responsibilities.

8.2 The institutions must adhere to the entire spectrum of values and principles governing public administration as set out in section 195 of the Constitution.

8.3 There has been a general failure to attend to the promotion of the various rights with which the institutions are required to concern themselves. They have responded reactively rather than acted pro-actively in respect of the issues of the day. They have not litigated when they could and should have done so. The neglect of socio-economic rights enshrined in the Constitution is particularly lamentable.

Effective parliamentary oversight.

9. Parliament should give serious attention to its oversight responsibilities under section 181(5) of the Constitution and should hold institutions accountable annually for the manner in which they discharge their duties and pursue their objectives.
 


Accessibility and responsiveness to the public

10.1 Finally, and most importantly, the public must be made aware of the activities and the roles of the institutions supporting democracy and must be able to access the services that they provide.

10.2 These institutions were created, above all, to ensure that ordinary citizens should enjoy the full spectrum of rights and freedoms guaranteed by the Constitution. Thus far, this has simply not been the case. Their activities are largely unknown to most South Africans who are accordingly not aware of the role that they could play in protecting and promoting key rights.

10.3 Accordingly, the activities of these institutions should be far more widely publicised than they are at present. Public service announcements on radio, television and in the printed media are indicated.

10.3.1 The institutions should, in particular, investigate ways and means of informing poor and disadvantaged South Africans of their activities and of the services and support that they can provide. This may assist in enhancing the realisation of socio-economic rights.

10.3.2 The institutions should do more to investigate proactively areas where human, youth, gender, cultural and administrative rights are being abused and formulate clear and effective practices and policies to address problems.
10.3.3 The activities and roles of the institutions should be part of school curricula.

Conclusion

11. Institutions supporting democracy should be playing a much more active role than they are in promoting our constitutional democracy and the full spectrum of rights upon which it is founded. However, this will require:
11.1 Scrupulous respect for the independence of the institutions;
11.2 Respect for their deliberations and recommendations, particularly by Government;
11.3 Clear and achievable mandates;
11.4 Sufficient financial and human resources and effective human resource management and budgeting;
11.5 Accountability as envisaged in section 195 of the Constitution
11.6 Effective parliamentary oversight; and
11.7 Accessibility and responsiveness to the public.


                     D. Steward
                     Executive Director, F W de Klerk Foundation
                     CAPE TOWN 17 January 2007