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