THE AD HOC COMMITTEE ON THE REVIEW OF STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
THE RELATIONSHIP BETWEEN THE STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY AND THE NATIONAL LEGISLATURE
[JANUARY 2007]
THE POLITICAL INFORMATION AND MONITORING SERVICE (PIMS)
THE INSTITUTE FOR DEMOCRACY IN SOUTH AFRICA (IDASA)
The Institutions Supporting Constitutional Democracy (ISDs), as established in Chapter Nine of South Africa’s Constitution, are recognized as fundamental to the development of an accountable, transparent and democratic state dedicated to the attainment of rights and values so long denied to the majority of South Africans. Since their inception these institutions have sought, albeit with varying degrees of success, to fulfill their respective roles and mandates. Many of these institutions have struggled with teething problems, which include lack of public awareness, limited resources and capacity, overlapping mandates and organizational shortcomings. According to the Presidency discussion document on macro-social trends in South Africa “A Nation in the Making”, released in 2006, over half of the surveyed respondents had not heard of the office of the Public Protector (PP) or the SA Human Rights Commission (SAHRC).
While a solid and widely admired framework for democracy has been established in South Africa both through the above structures and through the Constitution itself, ISDs have generally not been sufficiently visible, accessible or dynamic to fulfill their potential as watchdogs of democratic process. The general conclusion of consultants involved in the African Peer Review Mechanism of 2006 suggests that significant further action is needed to ensure the effectiveness of democratic structures as a whole.
This paper is divided into three sections:
Section C discusses ISD reports - both substantive and in terms of accounting - and the way the Legislature has engaged with and responded to these.
SECTION A: INTRODUCING THE ISDs AND THE UNDERPINNING CONCEPTS
South Africa is one of a number of countries that utilizes innovative iniatives to induce the state and citizens to respect and promote human rights and hold government accountable for financial and administrative decisions. The establishment of “national institutions” to uphold democracy in countries experiencing transition from conflict to democracy - through legislation, constitution or regulations – has been well documented; on the other hand, such structures are also considered to be part of the institutional ensemble of more stable democracies.[1] The importance of these institutions has gradually become evident to the world at large: by the 1990s, the United Nations was paying them considerable attention, leading to the emergence of the “Paris Principles”. These principles serve as important guidelines by which countries, organizations and individuals measure the independence and effectiveness of national institutions.
During the constitutional deliberations in South Africa in the early 1990s it was recognized that in order to uphold the proposed constitution a set of institutions to support and maintain the system of constitutional democracy was required. Chapter Nine of the Constitution therefore established six “state institutions supporting democracy”. These are the South African Human Rights Commission (SAHRC), the Public Protector (PP), the Auditor General (AG) , the Commission for Gender Equality (CGE), the Independent Electoral Commission (IEC) and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRCRL).
In South Africa, ISDs thus came into existence through the provisions of the Constitution rather than through ordinary legislation, a fact which emphasizes their status as special structures designed to promote a culture of democracy, human rights, transparency, and accountability. These institutions are clearly intended to bear great influence on the South African landscape. The drafters of the Constitution, for example, recognized that just as government has clear obligations to advance a human rights agenda, national institutions were needed to promote respect for human rights, to monitor government’s performance in this arena, and to assist aggrieved citizens, including by means of litigation. Commissions such as the SAHRC, the CGE and the CRCRL were therefore put in place with a remit over varying aspect of the rights in the Bill of Rights. The drafters further recognized that upholding the Constitution and strengthening democracy required a system for the effective oversight over public spending and official behaviour, and thus provided for the Offices of Auditor General and Public Protector.[2]
Although independent and largely distinct in mandate, ISDs have a relationship with the National Legislature that is of fundamental importance. In South Africa the Legislature fills the role of primary overseer of the executive. Section 42 (3) of the Constitution provides that:
“(t)he National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, providing a national form for public consideration of issues, by passing legislation and overseeing executive action”.
As an integral part of system of accountable government, ISDs are therefore intended to play a complementary role to the oversight role of Parliament. Professor Hugh Corder has outlined two distinct roles for ISDs in relation to Parliament – though it should be emphasized that the precise nature of these roles are defined by their respective mandates and functions. 1) The ISDs perform a complementary oversight function: together with Parliament they act as watch-dog bodies over the government and organs of state” and 2) they support Parliament through the provision of information and reports that are not derived from the executive.[3] Effective utilization by Parliament of ISD reports and recommendations, provided they are thorough and useful, can greatly strengthen the culture of accountability and transparency. Conversely, Parliament must assist the ISDs in carrying out their functions. This is especially significant as many of these institutions rely on the co-operation of other organs of state but have few powers either to compel organs of state to provide information or to follow their recommendations.
Section 183 of the Constitution asserts and protects the independence needed by ISDs to effectively fulfill their role. These institutions are “impartial, independent and subject only to the Constitution and the law” and “must exercise their powers and perform their functions without fear and favour” (183(1)). Similarly, “[n]o person or organ of state can interfere with the functioning of these institutions” (183(3)). Importantly, other organs of state are specifically requested through “legislative and other measures” to “assist and protect these institutions to ensure the[ir] independence, impartiality, dignity and effectiveness” - essentially an appeal for co-operative government (184(2)).
The central importance of independent ISDs is clearly evident when one considers their purpose in the system of accountable government. Any intrusion into the functioning of ISDs - by parliament, the executive, judiciary, the media, a private person or any private body - would effectively prevent them from carrying out their constitutional mandates effectively. It has been argued that true independence in respect of ISDs must at the very least mean freedom from overt or covert manipulation by other organs of state, sufficient empowerment in terms of the law to carry out its mandate, and sufficient resources to carry out activities and control implementation of policy.[4] The Paris Principles, referred to previoulsy, are also useful for providing a number of criteria presumed to shape an effective institution: these include adequate resources and capacity to fulfill its mandate, plurality of membership, non-interference by and support of government. The key tenet of the Paris Principles is that national institutions are independent: legitimacy, credibility and therefore effectiveness of ISDs depend on their ability to be perceived as independent.[5] Credible independence also serves to ensure that ISDs enjoy broad support and legitimacy in the wider community and body politic.[6] The Constitutional Court has described the ISDs together with the Bill of Rights as “enhanc[ing] the protective framework for civil society” which is provided by a multi-party government and multi-sphere government.[7]
In order for IDSs to work independently and effectively the Constitution and legislation set forth a number of essential conditions for their existence. Provisions on minimum qualifications for office, tenure, and investigative powers and on appointment and removal procedures aim to ensure that they work independently and impartially. It is evident however that in order for the constitutional and legal provisions relating to independence to have any real effect, practical steps must be taken by all organs of state to guarantee their institutional independence - through appropriate mechanisms as well as political commitment by the state.[8]
Independence is however not an absolute concept - ISDs are required to function in terms of the Constitution and their enabling legislation in a manner which enhances democracy, and should not exercise power arbitrarily. This is necessary because ISDs are funded by the public fiscus and must operate in a manner that furthers the public good. Section 181(4) of the Constitution therefore requires ISDs to be “accountable to the National Assembly” and to “report on their activities” – requirements that apply in most other countries. The National Assembly is thus responsible for ensuring that the Constitution and legislation such as the SAHRC Act[9] and PP Act[10] are implemented properly and effectively. This is why the Assembly requires the ISDs to annually submit strategic planning and performance reports and why ISDs are ultimately responsible for their own financial and administrative affairs. In fulfilling its oversight responsibility to ISDs, the National Assembly must however be conscious of and respect their independence and should not interfere with daily operations.
It is recognized that there is no single international model for such national institutions and that institutional arrangements are likely to reflect domestic trends. Factors such as size of the country, resources, capacity, the national debate, and socio-political context within which ISDs operate will influence their structure, power and mandate.
Finally, it should be emphasized that even if solid constitutional and legal foundations are in place to protect independence, the effectiveness of ISDs depend largely on their own ability to deal with relevant issues, the strength and commitment of their members, the existence of a vibrant organizational culture, the level of engagement with civil society, government, the Legislature and other stakeholders, amongst other factors.
SECTION B: INSTITUTIONAL ARRANGEMENTS
Budgetary Arrangements
The existing financial arrangements for the ISDs, and whether these adequately protect their independence, has been a subject of considerable debate. Concerns have been raised by both independent analysts and the ISDs themselves, specifically the SAHRC, PP and CGE, about the adequacy of resources allocated and the procedures employed to determine allocations. In particular, questions have been asked about the extent of executive influence and the role of Parliament in the process. Notably, these issues do not arise in the case of the AG, as it is not generally reliant on the state but rather generates revenue through audit fees.[11]
The budgets of the SAHRC, PP and CGE are currently determined, after a process of consultation, by the National Treasury and disbursed to them through the budget of the Department of Justice and Constitutional Development. The extent of consultation between the different role-players and the ability of the ISDs to present, defend and influence their budgets are difficult to assess due to limited information, although some institutions have complained about limited opportunities. For example, the SAHRC, in its Fifth Annual Report 2002, protested, “National Treasury continues to relate to the Commission through the Justice Department. This means that we have no direct means of having queries and problems resolved”. The Commission also expressed the view that the executive had not yet undertaken a proper “assessment of the appropriate level of resources necessary to execute its mandate”.[12] If the current arrangements are to satisfy the constitutional framework and protect the independence of the ISDs it is critical for the consultation process to be transparent; for Treasury to acknowledge the legitimate requirements of the ISDs; and for the ISDs to accept national budget constraints. Where ISD resource requirements are ‘reasonable’, that is to say not excessive or potentially wasteful, but nevertheless allegedly cannot be met due to other, competing priorities, this should be brought to the attention of Parliament.[13] Consultation between the executive and the ISDs notwithstanding, Parliament’s power to oversee and influence the budget allocations of the ISDs is ultimately fundamental to ensuring their independence.
The National Budget is tabled in February for the fiscal year running from April to March and consists of two bills and supporting documentation. The Appropriation Bill authorises the withdrawal of money from the national revenue fund and sets out appropriations for the requirements of the state per Vote (Department), whereas the Division of Revenue Bill schedules the distribution of allocations from the national revenue fund between the three spheres of government and between the different provinces and municipalities within each sphere.
The budgets for the SAHRC, PP and CGE are introduced as part of the Department of Justice and Constitutional Development Vote. The Portfolio Committee on Justice and Constitutional Development is therefore responsible for engaging with ISDs allocations, typically calling them to hear their views, before reporting to the Assembly.[14] The House then holds a budget debate and votes for the entire departmental budget. Parliament’s ability to engage meaningfully with the budget at this point is constrained by various circumstances, most acutely perhaps by limited timeframes and the absence of amendment powers. In this regard it is important to recognize that role of the Medium-Term Expenditure Framework (MTEF) and the Medium-Term Budget Policy Statement (MTBPS).[15] The MTBPS publicizes information on budget allocations and priorities years in advance and therefore allows Parliament, at least theoretically, to review, comment and thereby influence ISD allocations over the medium term. It does not, however, appear as though portfolio committees have engaged with the MTBPS in a regular or structured way. Although the Joint Budget Committee (JBC) is specifically mandated to review and report on the MTBPS, to do so effectively it requires the inputs of other committees on their areas of expertise. In the case of the SAHRC, PP and CGE budgets this would necessitate engagement and reports by the Portfolio Committee on Justice and Constitutional Development. Parliament has explored and initiated a number of measures to address these shortcomings. The JBC, for instance, has formulated a detailed strategy, contained in its Strategic Plan of 2005,[16] to improve its functioning, including altering its structure through establishing focused subcommittees and inviting the various portfolio and select committees to delegate a “budget specialist.” The JBC has also undertaken to increase its financial and administrative support and develop proposals for the establishment of a Parliamentary budget office. In addition to the work of the JBC, Parliament[17] has also begun drafting a bill in terms of Section 77 of Constitution – providing for amendment powers – although it remains unclear when the bill will be finalised. These steps, when implemented, will go some way to improving Parliamentary oversight over budget processes. Regarding the operations of the Justice Committee and its oversight over ISD budgets, a number of options seem available – these are elaborated elsewhere in this paper under Section C: Parliamentary Oversight over the Institutions Supporting Democracy.
Although parliamentary oversight over ISD budgets through mechanisms such as the MTEF is likely to improve over time, the question still arises whether the current budget model for the ISDs is appropriate, given their Constitutional independent status.
In 1999, the Constitutional Court of South Africa expressed its view on the matter in New National Party of South Africa v Government of the Republic of South Africa 1999 (5) BCLR 489 (CC) which addressed, amongst other things, the funding arrangement of the Independent Electoral Commission (IEC). The Court concluded that both financial and administrative independence were needed to ensure the independence of the IEC. Even if the budget of an ISD was sufficient for it to carry out its work, it was a matter of great concern for the Court if the executive is the main role-player in determining the budget. According to the Court, “it is for Parliament, not the executive to provide for funding reasonably sufficient to enable the Commission to carry out its constitutional mandate”… The Commission must accordingly be able to defend its budgetary requirements before Parliament”.[18] In arriving at this conclusion, the Court drew attention to ISDs as “a new development on the scene”, the “product of the new constitutionalism”, and “if this means that old legislative and policy arrangements, public administration and budgetary conventions must be adjusted to be brought into line with the new constitutional prescripts, so be it”.[19] In a similar vein, the Corder Report argued that to make institutions dependent on budget allocations received through the very departments that they are required to monitor is not desirable, and constitutionally questionable.[20] This Report advocated that the budget of ISDs “not be linked to the budget of a government ministry, as this may make them vulnerable to political pressure by way of financial penalties”.[21]
It must be accepted that for ISDs to discharge their mandate, they should feel confident that the conditions under which they work do guarantee their independence. While there is no evidence of executive interference through budgetary means in the operation of ISDs, the current arrangement does allow for the possibility of such influence of pressure- simply through the extensive involvement of the executive in the budget process. Control over funding by the executive may, for example, potentially prevent ISDs from robustly disagreeing with the executive for fear of changes to their funding. In this regard, the Corder Report concluded that, “approval by the executive of budgets, or other issues such as staffing, is inconsistent with independence, as well as the need to be perceived as independent by the public when dealing with their cases. The executive could render impotent ISDs through the potential denial of financial and human resources”.[22]
In a briefing to the Joint Ad Hoc Committee on Democracy and Good Governance,[23] the Public Protector argued[24] that it was possible under the current budgetary arrangement for the executive to curb the work of the Public Protector through changes in funding. The Public Protector therefore argued that the current budgetary procedure poses a potential threat to independence of that Office.
The need to craft a funding procedure that properly satisfies the constitutional requirement of independence envisaged by the Constitution poses a formidable challenge to Parliament. It should be emphasized that adjusting the procedure would not mean that the executive ceases to play any role – this would clearly be inappropriate considering ISDs budgeting has policy implications in other areas – but that the Assembly and ISDs themselves should have a more pronounced role. Although a number or alternatives exist, a favorable option may be to allow the ISDs to submit their medium-term budget proposals to the relevant portfolio committees. The respective committees could then engage with both these institutions and Treasury on the projected allocations and report to the House. Ideally ISD budgets should be separated from the Ministries, perhaps to form a separate Vote, although consideration would have to be given as to who would then coordinate, compile and introduce such a Vote.
Appointment Procedures
The purpose of this subsection is to examine certain aspects of the procedure for appointment of commissioners to ISDs, as set out in section 193 of the Constitution. Seeking to provide a general process[25] for nominating, selecting and ratifying potential candidates to ISDs, section 193 of the Final Constitution provides that:
“(1) The Public Protector and the members of any Commission established by this
Chapter must be women or men who-
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and
(c) comply with any other requirements prescribed by national legislation.
(2) The need for a Commission established by this Chapter to reflect broadly the
race and gender composition of South Africa must be considered when members are
appointed.
(3) The Auditor-General must be a woman or a man who is a South African
citizen and a fit and proper person to hold that office. Specialised knowledge of, or
experience in, auditing, state finances and public administration must be given due regard
in appointing the Auditor-General.
(4) The President, on the recommendation of the National Assembly, must
appoint the Public Protector, the Auditor-General and the members of-
(a) the South African Human Rights Commission;
[Para. (a) amended by s. 4 of the Constitution Second Amendment Act of 1998.]
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(5) The National Assembly must recommend persons-
(a) nominated by a committee of the Assembly proportionally composed of
members of all parties represented in the Assembly; and
(b) approved by the Assembly by a resolution adopted with a supporting vote-
(i) of at least 60 per cent of the members of the Assembly, if the
recommendation concerns the appointment of the Public Protector or
the Auditor-General; or
(ii) of a majority of the members of the Assembly, if the
recommendation concerns the appointment of a member of a
Commission.
(6) The involvement of civil society in the recommendation process may be
provided for as envisaged in section 59 (1) (a)”.[26]
In accordance with the appointment procedure outlined above, when an appointment is to be made, an Ad Hoc Committee of the National Assembly, proportionally representing all political parties, considers nominations received from the public, interviews candidates and submits a shortlist to the Assembly. The National Assembly is required to approve the shortlist of candidates through attaining the required support by Assembly vote (a majority in respect of the SAHRC, CGE and the IEC, and 60 percent for the PP and AG). The approved list is sent to the President who then makes the appointments.[27]
It is noteworthy that the legislation governing the IEC[28] adds an additional requirement to the procedure described above; it establishes a panel to make recommendations on expert candidates to the relevant committee. According to the IEC Act,[29] the panel is composed of the President of the Constitutional Court, and a representative of the PP, SAHRC and CGE respectively. While the committee and National Assembly still play the major role in the appointment of candidates, the involvement of the panel means that appointment of IEC commissioners takes place in a more independent manner than in the case with the other ISDs.
South Africa has sought to incorporate United Nations (UN) and international standards in the appointment processes of ISDs. The Paris Principles[30] encourage national human rights institutions to establish appointment procedures that “guarantee the independence, plurality and expertise” of commissioners. The South African Constitution includes provisions instructing commissioners to act independently[31], secures their tenure, and prohibits their arbitrary removal from office. [32] The Constitution also seeks to address the plurality requirement through the provisions that appointments reflect race and gender demographics[33] and that civil society is involved the recommendation process.[34] Criteria for appointment in respect of the PP[35] and CGE[36], such as qualifications, expertise and the number of years of experience, are specifically laid down in legislation.[37] Taken together, these provisions are aimed at ensuring that expert, independent minded and committed people are appointed to such positions.
A number of concerns have been expressed about the appointment process; specifically its impact on the capacity of ISDs to act independently. In South Africa, it is evident that the executive branch of government does not play the main role in the appointment process- if it did, this would lead to a clear violation of the independence requirement. It has, however, been alleged that the involvement of the Legislature in the selection and recommendation process can interfere with the independence, or appearance of independence of ISDs. This is a complex issue requiring careful deliberation. The advantages of legislative involvement in the appointment process are clear. ISDs, in order to function effectively, must receive support from and enjoy the confidence of the Legislature, particularly as they have no formal powers to enforce their own recommendations. If the “distance” between ISDs and the Legislature is too great, it is less likely that their complementary relationship will be realized.
The importance of independent ISDs and the need to prevent political interference in their work, by political parties, government, civil society or the media, are clear when one considers their responsibilities and functions.[38] Several of the ISD’s, notably the SAHRC and CGE have a broad range of functions including the power to comment on proposed legislation or to institute legal action against public and private authorities, whereas an office like the PP is specifically mandated to investigate corruption, maladministration, dishonesty, improper enrichment, or receipt of improper advantage in the public sphere. Like the SAHRC and CGE, the PP is granted the power to search and seize and the power of subpoena. These activities may potentially bring ISDs into conflict with political parties or the executive.
While appointment by the legislative branch of government may grant greater independence than appointment by the executive, the South African experience demonstrates that there are problems even with such an arrangement.[39] Previous appointment processes of the SAHRC have drawn sharp criticisms from a number of human rights activists for their alleged politicized nature. Referring to the procedure for the appointment of SAHRC Commissioners under the Interim Constitution[40], the Black Sash noted that “a major difficulty is that making a Parliamentary Committee responsible for nominations, inevitably means that the nominations will reflect the party political make up of the committee. The danger is that party political considerations consequently overshadow criteria more germane to the nature of the body for which nominations are being considered”.[41]
Other critics have drawn a link between the current appointment process and the politicized manner in which ISDs have carried out their mandates. For example, a study on the operation of the CGE by S. Meintjies highlights the effect of politics on the efficiency of the commission at various stages.[42] Though politics was never at the forefront of the discourse within the commission, she argues that it was often the underlying motivation for the respective commissioners pursuing particular assertions relating to the formulation of CGE policy.[43] Meintjies illustrates this point by recounting incidents within the CGE, when conflicting positions on the issue of ‘political independence and accountability’ was a cause for division, due to commissioners relying on their political beliefs to formulate their respective stances.[44]
Whether or not the actual independence of ISDs is adversely affected by the predominance of politicians in the process, it is evident that leaving the process to politicians may lead to a perception that appointments will be the outcome of political bargaining or preference, with limited attention being paid to candidates’ experience and expertise.[45] Furthermore, it is submitted that such extensive legislative involvement in the appointment process fails to sufficiently realize the constitutional vision for independent and impartial ISDs. Meintjies[46] describes the constitutional model in South Africa as one which establishes, along with the Constitutional Court, an additional tier of institutions with judge like status.[47] As commissioners, like judges, are required to perform their activities “without fear of favour”, the need to eliminate political considerations and depoliticize issues becomes pivotal.[48] Similarly, Sarkin argues that the current appointment process does not provide adequate “safeguards against unwarranted political manipulation”.[49] The manner in which commissioners are appointed and their perceived relationship with government or political parties is central to the independence of ISDs.
This noted, there are good reasons to explore changes to the current process. To suggest change is not to suggest that the past composition of commissions would necessarily have been different, or that politicians aim to exert undue influence on the appointment process or even the operation of commissions. Such change would also not preclude the involvement of parliamentarians in the appointment process- it would, however, ensure that appointments are not based on the sole recommendations of politicians and that they do involve a wider spectrum of representatives.[50] A more objective appointment process could further serve as an important, preliminary step for ensuring the independence, legitimacy and effectiveness of ISDs.[51]
One model would be the combination of parliamentarians, independent experts, and members of civil society in an independent panel along the lines of the Judicial Services Commission.[52] The panel would have the power to receive nominations from the public, to conduct interviews and nominate commissioners. The President would retain the power to make the appointments. In this scenario, the Legislature would have to consider legislation providing details on the composition of the panel, its powers, functions and processes.
Another option would be to limit the panel’s involvement to the compilation of a shortlist. Interviews and selection would still take place by the National Assembly with final approval by the President. While this option would still give the primary appointing role to parliamentarians, it is certainly more independent of politics than the current method. As mentioned previously, the model is used in the appointment of IEC commissioners. The possible concern that the Legislature will be less responsive to ISDs as it is involved to a lesser degree in the appointment process, and that their complementary relationship will not be fully realized, has not proved to be valid- the experience of the IEC demonstrates this point.
These options do not preclude the involvement of the Legislature in the process but offer the advantage of an inclusive, consultative and more independent process, as well as a greater level of compliance with the Paris Principles, which require that :
“… the procedure of appointment include representatives of: non governmental organizations responsible for human rights.., trade unions. …..concerned social and professional organizations……, universities and qualified experts; parliament; government departments (if they are included these representatives should do so in ad advisory capacity”.[53]
Political Office
The current Review should also address the need for a uniform and explicit prohibition on commissioners holding posts in political parties or even being party members at all, and should determine what form such a prohibition should take. Though the IEC legislation prohibits commissioners from holding ‘high political’ posts[54], the issue caused a dilemma in the CGE[55] in 2004 when it was found that a few commissioners also appeared on the ANC election list for the then upcoming election, and refused to resign. Critics argued that “just as public servants, including teachers, are expected to resign if they appear on parties’ candidates lists, commissioners who serve on an independent body should do the same”[56].
The danger of holding a post in or being a member of a political party is that it raises a conflict of interest - the decision making process could become bogged down with the balancing of competing political ideologies. The politicization of ISD membership or even the perception of such ‘politicization’ potentially comprises the independence of ISDs and the imperative to act “without fear or favour”. It is therefore necessary for Parliament to regulate the issue uniformly and prohibit commissioners from holding posts in or even being members of parties while in office. As an example, the Human Rights Commission Act in Uganda expressly forbids commissioners from holding any political office-: ensuring commissioners desist from active participation in party politics was seen as important safeguard for independence[57].
Some ISDs, such as the SAHRC[58] do have informal rules that prohibit commissioners from holding political posts, and/or that compel them to declare their directorships of companies. However, for the sake of overall legitimacy in the eyes of the public, it is essential that a single policy be put in place to ensure the uniform and transparent governing of all ISDs. The prohibition in question could be inserted into the relevant legislation governing the ISDs as a condition of service. Alternatively, it should be ensured that the prohibition is incorporated into the code of conduct of each ISD along with the necessary means to ensure compliance.
Threshhold for Voting
It is also worth considering whether the current threshold for the appointment of commissioners to the SAHRC, CGE and IEC – that is 51 percent (a majority of members of the NA)[59] should be raised to 60 percent. The concern is that the current threshold may not be ideal for achieving a broad consensus on the appointment of commissioners. Under the current arrangement, a single political party which musters a simple majority vote could determine all appointments to the IEC, CGE and SAHRC. Raising the bar to sixty percent might not have an effect in practice: however obtaining such broader support through a higher threshold could enhance the independence and integrity of the process.
Civil Society Involvement
The relevant constitutional provision provides for “the involvement of civil society in then recommendation process as envisaged in section 59 (1)(a)” . Section 59(1) states that “the National Assembly must facilitate public involvement in the legislative and other processes of the Assembly”[60]. This is geared to helping ensure that the candidates are drawn from the greater citizenry rather than just from a pool of individuals known to parliamentarians.
These constitutional provisions firmly impose a duty on Parliament to introduce mechanisms that promote public involvement in the appointment process of ISDs. Different approaches have thus-far been adopted to civil society participation by ISD’s, at minimum the public is invited to make nominations. [61] The Commission on Gender Equality Act[62] , for example, provides that the media be used to publicise vacancies and invite interested parties to apply for a seat on the commission.[63]
The need to involve a larger and broader spectrum of civil society in the recommendation process is a fundamental challenge and crucial for enhancing the legitimacy of ISDs. It also ensures that the process is well known and transparent and thereby bolsters public perception of both the process and the existence of ISDs. Sarkin[64] suggests that, under the current process, Parliament should afford the public a proper opportunity to comment on nominations, to lodge objections, and provide input on interview questions. To be effective, this would have to be accompanied with a thorough advertising and awareness-raising process with adequate time frames[65]. Public radio and television could also be utilized for broadcasting knowledge of the process as well as interviews to the public.
Aside from the appointment process, other crucial factors play a role in the independence and effectiveness of ISDs - the commitment of people in leadership positions, organizational structure and culture, whether ISDs are clear about their mandate, whether they prioritize critical issues, the quality of their work, and level of public accessibility and confidence.[66] However, as we have argued, the manner of appointment does have a significant impact on effectiveness and independence of ISDs. It is therefore submitted that the Chapter Nine Review seeks to identify alternate systems for appointment aimed at enhancing the institutions’ independence and maximizing civil society involvement.
This section examines the reporting practices of the ISDs, and especially of the AG and the SAHRC. The examination includes both the substantive reports of these institutions and their reports on their own objectives and activities.
The ISD’s do not have identical mandates and functions, and these differences have a significant impact on their relationship with the legislative arm of government. The SAHRC, CGE and PP are specifically mandated by the Constitution to make recommendations to the executive and in the process assist legislatures with oversight. Their ability to make recommendations, and in certain cases pursue remedial action, provides these institutions with a degree of political oversight. The AG, on the other hand, performs a more narrowly conceived technical service and issues findings based on predetermined criteria.
In discussing these issues, the section will outline the Constitutional and legislative framework relating to reporting, discuss the circumstances under which such reports and recommendations are tabled in the Assembly, the Assembly’s responsibilities in this regard and finally, the way in which the Assembly has typically responded to date.
The SAHRC is mandated by Section 184 (1) of the Constitution to promote, protect and monitor the advancement of human rights in the Republic[67]. These are essentially distinct, though not mutually exclusive functions, which necessitate different types of activities. “Promoting respect for human rights” requires a wide-range of actions including education initiatives and “advocacy”, whereas “protecting” allows for legal action. “Monitoring”, which informs other activities, obviously involves collecting and analyzing information. It is worth noting that Section 184 (3) of the Constitution imposes a specific duty on the Commission to monitor government measures taken towards the realisation of socio-economic rights including the right to housing, health, food, water, social security, education and the environment. This function of the Commission can be interpreted as an audit of sorts, described as “the main vehicle through which the implementation of socio-economic rights is monitored.”[68]
To enable the SAHRC to carry out its mandate, Section 184 (2) gives the Commission specific powers including to (a) “investigate and report on the observance of human rights”, (b) “take steps to secure appropriate redress where human rights have been violated”, (c) “carry out research” and (d) “educate”. These powers are reinforced in the SAHRC Act[69]. Importantly, according to Section 116 (c) of Interim Constitution, which still forms the preamble to the SAHRC Act, the SAHRC is empowered “to make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and this Constitution, as well as appropriate measures for the further observance of such rights”. Section 15 (1) of the Act elaborates that the Commission may, subject to its discretion and in a manner it deems fit, “make known to any person any finding, point of view or recommendation in respect of a matter investigated by it”. In relation to the legislature, Section 15 (2) states that the Commission shall, in addition to the annual activity reports[70], “submit to the President and Parliament (now the National Assembly) quarterly reports on the findings in respect of functions and investigations of a serious nature which were performed or conducted during that quarter: provided that the Commission may, at any time, submit a report to the President and Parliament if it deems it necessary.” Although quarterly reports may be overly frequent, Section 15 (2) clearly imparts an obligation on the SAHRC to keep Parliament informed not just of its general activities, necessary for Parliament and specifically the National Assembly to hold the Commission to account, but also in respect of substantive matters and recommendations which Parliament requires for its oversight purposes. The criteria by which the Public Protector may submit reports to the legislature, outlined in Section 15(2) of the Public Protector Act[71], are more specific than is the case for the SAHRC - and it may be necessary to amend the SAHRC Act accordingly[72].
The SAHRC also has a number of other legislative functions, most notably under the Promotion of Access to Information Act (PAIA)[73] and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)[74]. Part 5 of PAIA requires the Commission to develop, monitor and annually report to the Assembly, including issuing regulations and recommendations on the application of the Act. Section 25 of PEPUDA mandates the SAHRC to assist as well as monitor measures relating to the achievement of equality. Under Section 28, the Commission is required to include in its annual report to the Assembly[75] “an assessment on the extent to which unfair discrimination on the grounds of race, gender and disability persists in the Republic, the effects thereof and recommendations on how best to address the problems”.
Together with the Constitution and SAHRC Act, the Commission is also subject to the Public Finance Management Act (PFMA)[76] and Regulations. In terms of the PFMA, ISD annual reports and financial statements must, among other things, “fairly represent the state of affairs of the constitutional institution, its business, its financial results, its performance against predetermined objectives and its financial position at the end of the financial year…” According to PFMA regulations, ISDs must also table strategic plans in Parliament at least seven days prior to the discussion of their budgets. Such plans must cover a period of three years, be consistent with the institution’s medium-term expenditure estimates, and include specific constitutional and legislative functional and policy mandates, policy developments as well as measurable objectives, expected outcomes, programme outputs and the like[77].
The AG is obligated, through Section 188 (1) of the Constitution, to audit and report on the accounts, financial statements and financial management of all national, provincial and local departments (and) any other institution or accounting entity required by legislation. In addition, Section 188 (2) states that the AG may, subject to any legislation, audit and report on the accounts of any institution that receives its funds through the National Revenue Fund or any institution that is authorized to receive money for a public purpose. The AG must also submit reports to any legislature that has a direct interest in the audit – a constitutional provision unique to the AG. This underlines the fact that the AG core function is to supply information to the Legislatures, whereas other ISDs generally have broader public responsibilities.
The AG’s auditing and reporting functions and processes are set out in the Public Audit Act[78] and PFMA. Notably, Section 5 (d) of the Public Audit Act empowers the AG “to carry out an appropriate investigation or special audit…if the AG considers it to be in the public interest or upon receipt of a complaint or request”. Section 65 of the PFMA requires the AG to issue a special report in cases where an executive authority fails to table its annual report and financial statements in the relevant legislature within six months after the end of the financial year. In accordance with its constitutional and legislative functions, the AG has produced different types of substantive reports including Regularity Audits - included in departmental and other public entity annual reports; Performance Information Audits – a developing practice; Special Investigations and General Reports[79].
In terms of findings, Section 20 of the Act specifies that that the AG must, in respect of each audit, prepare a report which “must reflect such opinions and statements as may be required by legislation…but must reflect at least an opinion or conclusion on whether the annual financial and statements are accurate and issued in terms of the law. Recommendations, such as in the SAHRC Act, are not explicitly required. In terms of standard audits it is therefore clearly the responsibility of Parliament (or a provincial legislature) rather then the AG, to pursue matters arising from the audits and make recommendations to the executive. This doesn’t prevent the AG from cooperating with or assisting other organs and entities of state, although the Assembly must be informed of such activities in accordance with Sections 5 (1) (d) and (2) (a) of the Act.
Regarding accounting practices, the AG is not subject to the PFMA. Instead, the Public Audit Act requires the AG to submit its business plan and annual activity report to the NA and specifically the accountability mechanism established in terms of Section 10 (3). In addition, Part 3, Section 10 of the Act details that the AG’s office must annually report on the overall administrative and financial state[80] of the office etc - as contemplated in Section 181 (5) of the Constitution. Recently activity and annual reports have been combined.
The SAHRC, PP and CGE investigate and report on different issues. On the basis of these activities the Constitution and relevant acts allow them to table reports, including recommendations, with the Legislature. Such reports are of obvious benefit to Parliament since information about government action or inaction is important for oversight. Parliament can itself request an ISD to pursue a particular matter. These institutions are thus in a position to raise issues or concerns, including those relating to government assistance or responses to recommendations.
One of the concerns identified by the ISDs is the inconsistent manner in which the Legislature has engaged with their substantive reports - with some reports not being discussed or only after a considerable delay[81]. Related to this some ISDs have suggested, in Interviews with Institutions Supporting Democracy, a report prepared for the Parliamentary Task Team on Oversight and Accountability, that “there is a need for better co-ordination in ensuring that reports reach the relevant committees.” Finally, the ISDs have noted that they are not informed of action taken by the Legislature in response to reports.
In discussing these concerns it is necessary first to clarify the different nature of ISD mandates, reports and submissions and the extent of the Legislature’s role. Section 15 (2) of the PP Act states that the PP may “submit a report to the Assembly on the findings of a particular investigation if he or she considers it in the pubic interest” or “if it requires the urgent attention of or an intervention by, the Assembly”. Elsewhere it was suggested the SAHRC Act include similar provisions. Such provisions, it is argued, impose different obligations on the Assembly. A report submitted requiring “the urgent attention of the Assembly” clearly requires a near-immediate and considered response (and only in relation to substantive issues) whereas the extent of engagement with a report submitted on the basis of “public interest” may vary depending on a report’s findings and relevance. This is not to suggest that Parliament shouldn’t respond but merely that it may due so at its discretion.
In addition, it appears necessary to clarify procedures for the tabling and referral of reports, including those of ISDs. When tabled, reports are made available to every Member in accordance with the rules for written instruments[82]. They are then referred by the Speaker to the appropriate committee or, by House Resolution, to any other committee[83]for consideration.
Referrals may be accompanied by an instruction to report back, although such requests appear to be kept to a minimum, generally being used in cases where there is a legal requirement to be complied with or where there is a specific request. In general terms it could be argued that, subject to the nature of a report and the specificity of recommendations, ISDs reports should routinely be referred for report. In the event that the subject matter of a report is multi-disciplinary and relates to the portfolios of various committees, such as the SAHRC Socio-Economic Reports, the report may be referred to all such committees to consider the relevant issues or it may be referred to a single committee with an instruction to confer. It appears in many cases, however, particularly when a report is referred for consideration and there is no instruction to report, that portfolio committees do not confer adequately or respond[84]. Generally speaking, it is crucial that committees comply with their reporting responsibilities[85], as failure to do so deprives the peoples’ representatives of the knowledge they require to make informed decisions and fulfill their constitutional responsibilities. These observations suggest shortcomings in the application of the procedures rather then the procedures themselves – as frequently implied[86]. This noted, it is clear that Parliament has not always optimally utilised the opportunities and information supplied by ISDs; a concern given their experiences and expertise.
It should be recognised that the Legislature is currently emerging from a period of transformation and extensive legal reform and consequently has not fully consolidated its oversight function[87]. Within Parliament and its committees, shortcomings in attendance, procedural and administrative support and record keeping are well documented. These problems inhibit oversight generally but also disrupt the relationship and information flows between the Legislature and the ISDs. It is significant that Parliament has, as part of its review of its oversight function, taken steps to improve the functioning of committees in the medium-term, including reducing the size of many portfolio committees and improving the secretarial and research support available to Members. One accepts that Members often do not have the time to study each report in detail and should have the necessary resources and support to exercise their responsibilities. Nevertheless, Members, in prioritising oversight, must focus on developing best practices and apply themselves to ISD and other reports. As highlighted in Lessons from the South African Commission on Human Rights: An Examination of a National Human Rights Institution, “(t)here is a perception among Commissioners and others that Members of Parliament do not read what the Commission submits….[88] As one former Commissioner stated: ‘Parliamentarians don’t read, nobody ever interrogates the report…Parliament has often not highlighted issues raised in Human Rights Commission Reports.’”[89] Observations of this kind should be of concern to the parliamentary leadership and whippery.
As oversight practices become established it is expected that more attention will be given to ISD reports both in committees and plenary – provided they are clearly presented and contain credible research and analysis[90]. In this regard there does appear to be a need for improved co-ordination between Parliament and the ISDs. Respondents in Interviews with Institutions Supporting Democracy noted, “there is potential for closer interaction between parliamentary committees and ISDs in jointly setting research priorities and criteria - thereby making both Parliamentary oversight and the reporting of the ISDs more effective”[91]. This is not to suggest a “structured partnership”, which may have implications for independence, but simply that the respective institutions and structures focus on communicating their activities with a view to constructively engaging on areas of mutual concern. The adoption of the Educations Laws Amendments Act[92] which gave effect to the SAHRC’s recommendations set out in its report: “Initiation Practices at Education Institutions and a Preliminary Report of Cultural Initiatives published in 2001, has been cited as best practice in terms of Parliaments relationship with the Commission[93].
From Parliament’s perspective, it may be an option for Portfolio and Select Committees, when developing their programmes, to consider ISD activities and reporting timeframes as set out in their strategic plans. Committee researchers could also track relevant ISDs activities and alert Members to important developments. The introduction of pieces of legislation requiring action and report by certain ISDs, such as PAIA and PEPUDA[94] could be understood as a method of co-operation and certainly prescribe a particular interaction between the institutions in respect of the issues provided for in the acts. Recognising the complementary nature of the ISDs and Parliament, however, the interaction envisioned in these acts could be considered as effective practice in more general terms; that is, the practices could be applied without necessarily requiring legislation.
Another of the concerns raised by ISDs concerns the absence of government co-operation and a lack of parliamentary support in this regard. In terms of the SAHRC for example, it has been pointed out that “although there has been co-operation from some departments…the relationship has at times been strained, with the Commission mentioning on various occasions the lack of compliance or respect accorded to its requests. As the previous Chairperson noted: ‘we have had reason to be concerned at times at to whether there was understanding of the obligations of government and (the) civil service about the extent of the powers and reliance of the Commission on co-operation and partnership with government”[95].
Fundamentally, Section 181(3) of the Constitution creates an obligation on the other organs of state to assist these institutions to ensure their independence and effectiveness – essentially an appeal for cooperative government. This provision is reinforced through legislation such as Section 4(3) of the SAHRC Act: “All organs of state shall afford the Commission such assistance as may be reasonably be required for the protection of the independence, impartiality and dignity of the Commission”. As a last resort in cases where the executive has repeatedly failed to assist, an ISD could conceivably approach the Constitutional Court with a breach of Section 181(3). Unquestionably, however, it is the responsibility of the National Assembly as the custodian of constitutional democracy, to ensure that Section 181(3) is respected and complied with.
The SAHRC Fourth Economic and Social Rights Report, tabled in 2003, is a case worth documenting. Although not a special report on non-cooperation, the report outlined concerns and challenges faced by the Commission since 1997, including a poor response rate to questionnaires sent to the three spheres of government, with many departments not supplying any information, and a lack of clear action by Parliament. The Joint Budget Committee[96], emphasized that the relevant portfolio committees – presumably Housing, Health, Agriculture, Water and Forestry, Social Security, Education and Environmental Affairs – should urge the respective departments to provide the necessary information. The Assembly adopted the report but it is not clear whether committees responded accordingly[97]. If they did not then the Joint Budget Committee should have pursued the matter. Due, amongst other things, to limited information and assistance, the SAHRC has since opted to publish its Socio-Economic Rights Reports on a three-yearly as opposed to an annual basis.
The recommendations made in substantive reports represent the most direct way ISDs can attempt to alter a particular circumstance and are thereby integral to their functioning. One of the most significant issues raised by the ISDs is the apparent disjuncture between recommendations made and their implementation[98]. This disjuncture has led some to suggest that these institutions should perhaps have powers of sanction: a complete lack of or wholly inadequate response could, for example, be considered contempt. Certainly, in cases where there is a clear infringement of a human right or law, an ISD could initiate or support court action. There have been comments that some ISDs are not proactive enough in seeking legal relief[99]. Where recommendations aimed at the executive are of a policy nature, however, the executive cannot be compelled to comply, though it should, in the interests of cooperative government, respond. Whatever the case, the National Assembly should be informed.
There appears to be confusion, however, over the precise nature of the Assembly’s responsibilities. Interviews with Institutions Supporting Democracy noted: “It is uncertain whether it is the responsibility of Parliament or the ISDs to follow up on the implementation of these (ISD) recommendations, and, if this responsibility lies with Parliament, whether this means that Parliament has the further responsibility of informing ISDs of the actions taken in response to their recommendations.” The report further noted: “It was felt that one of the functions of the proposed Parliamentary Standing Committee, should be to track the implementation of recommendations made in ISD reports”[100]. Corder and some ISDs seem to suggest a relatively intimate relationship between Parliament and the ISDs, with the Assembly routinely monitoring specific recommendations[101]. Considering the independent nature of the ISD and the broad remit of the Assembly’s oversight responsibilities, however, it is debatable whether this is the relationship envisioned in the Constitution. Rather, given the complementary nature of the ISDs and Parliament, it seems reasonable to assert that ISDs should themselves track recommendations and, if necessary, report on specific responses. The SAHRC, for example, appears to monitor the implementation of recommendations, as suggested in its annual reports, but the effectiveness of such efforts and systems are difficult to assess due to limited information.
There may be occasions, particularly in relation to policy matters or where government has failed to respond, where an ISD chooses to approach and table a follow-up report in the Assembly. ISDs whose mandates include “promoting” or “lobbying” could also pursue other means, perhaps through mobilising civil society and the media. Depending on the issue, the Assembly could then pursue the matter as part of its oversight responsibilities.
Given that the recommendations are fundamental to the ISDs and that in many cases they cannot be pursued in the courts, either due to costs or because they don’t involve a breach of law, the potential exists for government and other stakeholders to not take them seriously, thereby infringing on their independence and effectiveness. It could be argued, therefore, that despite the general nature of Parliamentary oversight, it is incumbent on the Assembly, through its committees, to be proactive, pay special attention to ISD recommendations and stakeholder responses and, where appropriate, urge compliance. It would seem best practice for committees to regularly insist on supplementary reports from the relevant stakeholders on actions taken in response to ISD recommendations. To date, it does not seem as if these practices have developed: few instances of special or follow-up reports appear to exist. On a broader level, proactive parliamentary oversight and support is fundamental to promoting a culture of accountability and would greatly enhance the standing and effectiveness of the ISDs.
The AG is, as mentioned, conceptually very different from the other ISDs. Whereas other ISDs inform Parliament about actions taken and recommendations made, the AG reports directly to Parliament (and the provincial legislatures). The task of political oversight over national financial management rests with Parliament and specifically the Standing Committee on Public Accounts (SCOPA), which is mandated to receive and consider all financial statements and AG audits[102], check whether state funds have been spent in accordance with the budget and, where appropriate, recommend corrective actions. In the words of the former AG “this relationship, on the one hand provides the logical conclusion to our audit work by providing impetus to our audit findings. At the same time, SCOPA receives the inputs it requires to carry out proper assessments of financial management and entities.[103]” It is therefore necessary to examine the manner in which the SCOPA has used the information supplied by the AG and in so doing reflect on some of challenges faced by the Committee.
SCOPA has been criticized for not being assertive enough in terms of follow-up actions where corrective measures have been recommended. The importance of rigorous oversight cannot be over-emphasised, given that public sector financial and accounting practices are, though improving, still considered weak with many departments and institutions failing to meet legislative prescripts[104]. In this regard it is perhaps significant that SCOPA has tended to engage with accounting officers as opposed to the executive authorities. Although this is not necessarily a problem, where SCOPA has serious concerns the relevant minister should be called in to account.
In addition, Murray and Nijzink suggest[105] that the Committee has at times been “guilty of tending towards re-auditing statements rather than drawing conclusions and making recommendations. In general (SCOPA) needs to find the most effective level at which to ‘pitch’ scrutiny and raise its level from too much focus on detail (the symptoms) to a higher level of review (to address the causes).” Indeed, one of the self-declared goals of the Committee is to strength the qualitative aspect of its work[106].
SCOPA has been, like many committees, hampered by limited capacity and expertise[107]. This has been especially challenging for SCOPA, however, given the high volume of reports and tasks referred to the Committee. Concerning its workload, the Committee acknowledged in a report tabled in May 2002, that whereas it should scrutinise the records of all departments and institutions, a method of prioritisation was required to ensure that the most pressing issues received the requisite attention. Accordingly, the Committee developed a sifting system which allows attention to be given to cases where financial management quality appears dangerously poor, whilst providing that all financial records of departments and institutions be considered within a three-year cycle. The shifting is done by SCOPA’s two Work Groups, essentially subcommittees, and scheduled into the Committee’s programme.
In discussing SCOPA, it must also be pointed out that there does not always appear to be consensus amongst politicians about the Committee’s unique technical role in the oversight process. The political pressure exerted on the Committee during the dispute over alleged irregularities in the Strategic Defense Procurement Package or arms deal and the manner in which this compromised the functioning and integrity of the Committee and Parliament as a whole is widely documented
Despite challenges, however, SCOPA remains amongst the most productive committees in Parliament due, in no small part, to the close relationship and technical support of the AG. It seems evident, nevertheless, that on certain issues, portfolio committees could also benefit from a closer association with the AG, particularly in respect of information concerning departmental financial management capacity and quality of information systems. Portfolio committees would also have an interest in the projected performance information audits of the AG – as required by Section 20 (1) (c) of the Public Audit Act. Furthermore it has been suggested that the AG could also assist in training and capacity building programmes for parliamentary researchers and other support staff[108]. Despite the potential benefits of a closer interaction between the AG and portfolio committees and indeed, the steady increase in the interactions between these structures, it appears that relations are still being developed. In this regard the AG has proposed that a “guide or protocol be developed to direct the provision of assistance…to the respective committees of Parliament.”[109]
Parliamentary Oversight over the Institutions Supporting Democracy
The National Assembly is responsible for ensuring that the Constitution and legislation such as the South African Human Rights Commission Act and the Public Protector Act are implemented effectively. This requires, amongst other things, appropriating the resources necessary for the different branches and organs of state to carry out their respective mandates. This is why the Assembly requires all organs of state, including the ISDs, to annually submit strategic plans, performance reports and financial statements, and why the ISDs are ultimately answerable for their administrative and financial affairs. In fulfilling its oversight responsibilities in relation to the ISDs, however, the Assembly must also be conscious of and respect their independence. This has been interpreted to mean that, whereas the Assembly should monitor the broad implementation of the respective acts, it may not reflect or make pronouncements on the specific operations or “day to day” proceedings of the institutions - in much the same way as Parliament is prohibited from reflecting on proceedings in the courts. As an example of the impact of these provisions on the ability of the Assembly to exercise oversight over the ISDs, it is worth mentioning the enquiry undertaken by the Assembly into the operational problems of the PP in 2006. In its findings the Committee established to conduct the enquiry emphasised that it was able to intervene only because it was requested to do so by the PP[110].
Given that the ISDs are not accountable for specific operations and that, unlike the executive, they need only report “at least once per annum”[111] it would seem acceptable to suggest that the Assembly, in conducting oversight, need only engage with these institutions on a relatively infrequent basis. Currently the SAHRC and PP report to the Portfolio Committee on Justice and Constitutional Development (referred to as the Justice Committee). Thus usually happens once a year when their budgets are reviewed[112]. Considering the importance of these institutions in protecting constitutional democracy and the multitude of teething problems experienced – as evident from their annual reports and touched on above – it could be argued that, in general terms, the Assembly has not fulfilled its oversight responsibilities adequately.
One of the apparent reasons for this appears to be the lack of capacity and the heavy workload of the Justice Committee. The Committee is responsible for overseeing the Department of Justice, the Judiciary and a range of other constitutional and statutory bodies[113] and has processed a considerable amount of legislation compared to some other committees. That the aforementioned enquiry into the operational problems in the office of the PP was referred to an ad hoc committee and not the Justice Committee is perhaps partly the result of the challenges faced by the Committee. In addition, it is noteworthy that the Assembly established ad hoc committees to appoint office bearers to these institutions. Aside from possible political considerations the accounting mechanism would ordinarily seem the appropriate structure to understand the requirements and performance of office-bearers. Apart from addressing general capacity shortcomings in the Assembly and the Justice Committee in particular, a variety of options seem available for enhancing Parliamentary oversight over the ISDs.
First, the Corder Report suggested that a special standing committee be established to engage with and oversee these institutions[114]. This would certainly alleviate pressure on the Justice Committee. However, considering that many committees have had problems with quorums, attributed to the fact that Members already struggle to manage competing responsibilities with the large number of committees, the establishment of a further committee could exacerbate these difficulties. It is worth mentioning that the Assembly, to meet Section 10 (3) of the Public Audit Act[115], established a standing committee to maintain oversight over the Auditor-General. The argument for a special committee dedicated to the AG as opposed to other ISDs can only be that the AG’s sole function is to report to the Assembly whereas the other institutions do not have such a direct relationship. As an alternative to the Corder model is has been suggested that a sub-committee of the Justice Committee be mandated to engage with and report on the operations of the relevant ISDs[116] – possibly for a trial period. SCOPA also makes extensive use of sub-committees and it is interesting to note that when portfolio committees were recently downsized, the size of SCOPA and the Justice Committee were retained due to their active schedules[117]. A third option would be to devolve responsibility for overseeing the SAHRC, PP and CGE to another portfolio committee – provided such a committee had the necessary capacity to carry out this function. The Portfolio Committee on Public Administration is one such option although it should be remembered that, despite that fact that oversight over the ISDs is limited to administrative matters, these institutions are mandated to promote and protect the Constitution and so any oversight body would likely require expertise in this field.
Along with improving its internal mechanisms and practices it is important for the Assembly to insist that the reports of the state institutions, and specifically the ISDs are standardised, concise and of high quality. The Justice Committee has noted, for instance, that the ISDs “should be making reports more accessible to Parliament, making them less lengthy…and providing an executive summary etc.”[118] Expanding on these observations, the University of Cape Town (UCT) Evaluation of Annual Reports emphasised that comprehensive and timely information is crucial for the ISDs to be held accountable, and this is often lacking in the current annual reports. Specifically, in the case of the SAHRC, the UCT Report highlighted that although the Commission typically reports “on objectives, activities and outputs, (this) information is not reported consistently over time.” In addition, attention should be given to details such as “cases dealt with and resolved; cases referred to other institutions; cases rolled over from previous years etc. Regarding the AG, UCT again raised issues of constituency and formats of accounting reports[119].
Generally, due to the PFMA as well as feedback from Parliament and analyses such as the aforementioned UCT report, accounting practices of the ISDs have gradually improved. It is nevertheless evident that further refinement is required to align these practices with the needs of Parliament.
RECOMMENDATIONS
Based on the preceding observations, IDASA recommends the following:
1. That the budget arrangements for the ISDs (with the exception of the AG) be amended to allow for greater Parliamentary and ISD involvement. Although a number or alternatives exist, a favorable option may be to allow the ISDs to submit their medium-term budget proposals to the relevant portfolio committees. The respective committees could then engage with both these institutions and Treasury on the projected allocations and report to the House. Ideally ISD budgets should be separated from the Ministries, perhaps to form a separate Vote, although consideration would have to be given as to who would then coordinate, compile and introduce these budgets. Added to this Parliament should introduce legislation in terms of Section 77 (3) of the Constitution to provide for a procedure to amend money bills as a matter of urgency.
2. That Parliament reviews the appointment processes for the ISDs, and specifically the extent of public participation and civil society involvement, with the aim of safeguarding their independence and impartiality. One option may be to establish an autonomous, multi-stakeholder panel to consider nominations and/or recommend appointments to these institutions although careful consideration would obviously need to be given to the specific composition and functions of such a body.
3. That Parliament introduces uniform rules prohibiting commissioners from holding political posts or even being members of political parties.
4. That emphasis is placed on accelerating the efforts of the Oversight Task Team specifically in terms of strengthening the culture of oversight generally and clarifying the role and function of committees in their interaction with the ISDs in particular. In this regard ongoing training should be provided, both for Members and ISDs, on the complementary roles of the institutions and steps initiated to ensure that committees meaningfully and timorously respond, via the Houses, to ISD reports.
5. That the Assembly focuses on monitoring the extent of assistance given to the ISDs by other organs of state as contemplated in the Constitution and should itself set the example by supporting the institutions when required. In this way Parliament should, through its commitment to constitutional democracy, be at the forefront of establishing a culture of oversight.
6. To facilitate oversight over the ISDs and specifically the SAHRC, PP and CGE, it may be an option for the Assembly to establish a sub-Committee of the Portfolio Committee on Justice and Constitutional Development to engage with and give feedback on the strategic plans, annual reports and budgets etc. of these institutions. This could be implemented for a trial period.
BIBLIOGRAPHY
Acts
· Constitution of the Republic of South Africa, 1996
· Public Audit Act 25 of 2004
· Ad Hoc Joint Sub committee on Oversight and Accountability Final Report (2001)
· SAHRC Sexual Offences against Children Report (2002)
· Murray Dr. R, Lessons from South African Commission on Human Rights: An Examination of a National Human Right Institution, University of London, (2002)
Research Assistance
Mariam Sirkhotte, Masibulele Mfunzana and Nathi Mjenxani of the Political Information and Monitoring Service, IDASA
[1] Dr. Rachel Murray, Evaluating the Effectiveness of National Human Rights Institutions, 2006
[2] As a further example, another Chapter Nine institution - the Public Service Commission – was established by the Constitution to promote suitable values and principles in the public service and investigate complaints against public administration practices, amongst other things.
[3] Corder Report on Parliamentary and Accountability, 1999
[4] Andrews P and Ellman D, Post Apartheid Constitutions, 2001
[5] R. Murray, 2006
[6] Devenish G. E, Commentary on the South African Constitution 1997
[7] Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 2 SA 97 (CC) par [25].
[8] C Murray, The Human Rights Commission et al: What is the role of South Africa’s Chapter 9 Institutions? 2006
[9] Human Rights Commission Act, Act 54 of 1994
[10] Public Protector Act, Act 23 of 1994
[11] The AG may nevertheless, under Section 36 (b) of the Public Audit Act, Act 25 of 2004, have funds appropriated by Parliament.
[12] SAHRC Fifth Annual Report, 2002
[13] The University of Cape Town (UCT) Evaluation of Annual Reports 2006 suggested “the fact that the SAHRC sources significant public pubic and private international donor money, including money from the European Union, raises concerns over whether there is sufficient appreciation on the part of Treasury that the necessary allocation of resources is critical for the SAHRC to fulfill its mandate”.
[14] The Department of Justice in 2002 established a Special Directorate for Chapter Nine institutions aimed at identifying their concerns. However, there is limited information on the operation of this Directorate.
[15] As provided for in Public Finance Management Act, Act 1 of 1999, s28
[16] Parliamentary Monitoring Group (PMG) records
[17]This is being done through The Oversight Task Team, established to implement the recommendations of the Joint Ad Hoc Committee on Oversight and Accountability, 2001
[18] New National Party of South Africa v Government of the Republic of South Africa 1999 (5) BCLR 489 (CC)
[19] Ibid
[20] Corder, 1999 p 27-28
[21] Ibid, 1999 p 130
[22] Ibid, 1999 p 28
[23]Joint Ad Hoc Committee on Democracy an Good Political Governance, Public Hearings Report, February 2006 (Established with the purpose of contributing to South Africa’s inaugural Peer Review (APRM) process in 2006)
[24] “…could theoretically compromise the functional independence of the Office..”, Ibid, 2006 p 23
[25] Procedures in respect of the various ISDs laid out in the Interim Constitution, which governed the first round of appointments, differed in a number of respects.
[26] The Constitution of the Republic of South Africa, Act 108 of 1996, s193
[27] Act 108 of 1996, s193
[28] Electoral Commission Act, Act 51 of 1996, s6(3)
[29] Electoral Commission Act, Act 51 of 1996
[30]United Nations General Assembly, (Resolution 47/134 of 20 December 1993)
Composition and guarantees of independence and pluralism
1. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of
human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of: Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists; Trends in philosophical or religious thought; Universities and qualified experts; Parliament; Government departments (if they are included, these representatives should participate in the deliberations only in an advisory capacity). 2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect this independence. 3. In order to ensure a stable mandate for the members of the institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured
[31] Act 108 of 1996, s181 (2), (3), (4)
[32] Act 108 of 1996, s194
[33] Act 108 of 1996, s193 (2)
[34] Act 108 of 1996, s193 (6)
[35] Public Protector Act, Act 23 of 1994, s3
[36] Commission on Gender Equality Act, Act 39 of 1996, s3
[37] Or the Constitution in respect of the AG, Act 108 of 1996, s193 (3)
[38] Jeremy Sarkin Current Developments : Reviewing and Reformulating Appointment Processes to Constitutional (Chapter Nine) Structures, 1999 15 SAJHR, p 588
[39] Murray R, 2002 p 13, Sarkin J, 1999, Meintjies S, 2005
[40] Act 200 of 1993, s115 These arguments would still apply under the final constitution.
[41] Jeremy Sarkin Current Developments : Reviewing and Reformulating Appointment Processes to Constitutional (Chapter Nine) Structures, 1999 15 SAJHR p 593
[42] Sheila Meintjies Gender Equality by Design : The Case of South Africa’s Commission on Gender Equality, Politikon, Nov 2005, 32(2) p 269
[43] As a further example, the PP– perceived by some to be affiliated to the ruling party- has been criticized for its soft treatment of highly politically sensitive investigations. When the first Public Protector was in 1996 charged with investigating whether there had been any wrongdoing by the then Minister of Health in regard to the funding of “Sarafina 2”, the AIDS prevention play, the Office exonerated the Minister whereas a subsequent commission of enquiry (Heath Commission) came to different conclusions. Similarly, the “Oilgate” affair raised questions about the limited manner in which the current Public Protector had interpreted his mandate when investigating the alleged misuse of state funds by the ruling party.
[44] Ibid
[45] R Murray, 2002 p 4
[46] Sheila Meintjies, Gender Equality by Design : The Case of South Africa’s Commission on Gender Equality, Politikon, Nov 2005, 32(2) p 59
[47] C Murray, 2002, also emphasizes that ISDs , that “like the courts”, ISDs are expected to be independent and impartial, and act “without fear or favour”.
[48] As an example, it has been argued that “distrust…about political associations (in the Commission for Gender Equality) has led to the ineffectiveness, and questions over the independence of the CGE. (S Meintjies, 2005 p 270)
[49] Jeremy Sarkin Current Developments : Reviewing and Reformulating Appointment Processes to Constitutional (Chapter Nine) Structures, 1999 15 SAJHR, p 611
[50] Ibid
[51] Jeremy Sarkin Current Developments : Reviewing and Reformulating Appointment Processes to Constitutional (Chapter Nine) Structures, 1999 15 SAJHR p 588
[52]Recognizing the need for an alternative appointment process independence, the CGE and independent scholars have canvassed the idea of an independent panel- so that appointments are not solely based on the recommendations of parliamentarians.
[53] Paris Principles B1, United Nations General Assembly, (Resolution 47/134 of 20 December 1993)
[54] Electoral Commission Act, Act 51 of 1996, s6 (2) (b)
[55] CGE has a Code of Conduct (see sec 2.1, Code of Conduct) - but it does not explicitly contain the prohibition in question referred to in this paper.
[56] Angela Quintal, Spotlight on Selection of Commissioners, Star, 9 March 2004
[57] James Matshekga Toothless Bulldogs? The Human Rights Commissions of Uganda and South Africa: A comparative study of their independence, AHRLJ, 2002, 2
[58] Interview with Jodi Kollapen, SAHRC Chairperson
[59] Act 108 of 1996, s193 (5) (b) (ii)
[60] Act 108 of 1996
[61] Jeremy Sarkin Current Developments : Reviewing and Reformulating Appointment Processes to Constitutional (Chapter Nine) Structures, 1999 15 SAJHR, p 611
[62] Act 39 of 1996
[63] Act 39 of 1996, s3(2)
[64] Ibid at 613
[65] Ibid
[66] see C. Muray ibid at fn 8
[67] Act 108 of 1996
[68] Corder Report 1999
[69] Act 54 of 1994
[70] As contemplated in Section 118 of the Interim Constitution and 181 (5) of the Final Constitution
[71] Act 23 of 1994
[72] Section 15 (2) asserts that the PP may, apart from compulsory annual activity reports, submit a report to the Assembly on the findings of a particular investigation if he or she considers it in the pubic interest or it requires the urgent attention of or an intervention by, the Assembly or at the request of the Presiding Officers.
[73] Act 55 of 2000
[74] Act 4 of 2000
[75] PEPUDA refers to Section 15 of the SAHRC Act, Act 54 of 1994
[76] Act 1 of 1999
[77] Due to the fact that strategic plans are often repetitive, National Treasury is considering amending Regulation 5.1 so that strategic plans cover a longer period, 4-5 years, and need not be submitted on a yearly basis. Separately, the PFMA also includes a range of other provisions relating to accountability and transparency such as the obligation to establish audit committees, implement effective supply chain management systems and fraud prevention strategies etc.
[78] Public Audit Act, Act 25 of 2004, s4, s5, s11, s20-s22 – which repealed the Auditor General Act of 1995.
[79] See Presentation by the AG to the Chairpersons Committee of the National Assembly 16 October 2006
[80] Financial reporting is the responsibility of the Chief Executive Office (CEO) who is also the Deputy Auditor-General
[81] Report 19 of the Public Protector: “Causes of delays in communication in the Public Administration” June 2002, (only discussed in the Portfolio Committee on Public Administration in early 2005)
[82] Standing Rules of the Assembly and National Council of Provinces
[83] Examples include Report 13 of the Public Protector 1999 and the SAHRC Sexual Offences against Children Report 2002.
[84] Ad Hoc Joint Sub committee on Oversight and Accountability 2001
[85] NA Rule 137: (1) A committee must report to the Assembly on a matter referred to the committee when the Assembly is to decide the matter in terms of these Rules, the Joint Rules, a resolution of the Assembly or legislation; (b) if the committee has taken a decision on the matter, whether or not the Assembly is to decide the matter as contemplated in paragraph (a); or (c) if the committee is unable to decide a matter referred to it for a report. (2) A committee must report to the Assembly on: (a) all other decisions taken by it, except those decisions concerning its internal business; and (b) its activities at least once per year.
[86] Corder Report 1999, see also SAHRC Annual Report 2000-2001
[87] Ad Hoc Joint Sub committee on Oversight and Accountability 2001
[88] See also SAHRC Annual Report 2001
[89] Lesson from South African Commission on Human Rights: An examination of a National Human Rights Institution 2006.
[90] An annual debate on the advancement of socio-economic rights (or specific right) may be worth considering - with reports from the SAHRC of obvious relevance in this regard.
[91] Interviews with Institutions Supporting Democracy 2006
[92] Act 50 of 1999
[93] The University of Cape Town (UCT) Evaluation of Annual Reports 2006
[94] The University of Cape Town (UCT) Evaluation of Annual Reports 2006 observed that the SAHRC is currently limited in its capacity to deliver on the vast set of activities stipulated in these acts. It should be emphasized that Parliament should, in terms of it oversight role, ensure that institutions have appropriate resources to carry out any additional responsibilities.
[95] Lessons from South African Commission on Human Rights: An Examination of a National Human Rights Institution 2006.
[96] Report ATC-20 February 17, 2004
[97] In terms of committee record-keeping, for example, it has been suggested that committees of both Houses audit their recommendations and responses and that this is included in the annual committee reports issued in terms of the rules.
[98] Parliamentary Monitoring Group: meeting of the Ad Hoc Committee on the Review of the Institution Supporting Democracy 2006
[99] The University of Cape Town (UCT) Evaluation of Annual Reports 2005
[100] Institutions Supporting Democracy 2006
[101] Corder Report 1999 and Interviews with Institutions Supporting Democracy 2006
[102] See Assembly Rule 206 (2)
[103] Presentation by the AG to the Committee of Chairpersons of the National Assembly, 16 October 2006
[104] Predominantly the Public and Municipal Finance Managements Acts
[105] C Murray and L Nijzink Building Representative Democracy: South Africa’s Legislatures and the Constitution, Parliamentary Support Programme 2002
[106] Annual Report of SCOPA 2005
[107] Regarding expertise, SCOPA is a member of The Association of Public Accounts Committees (APAC): a non-profit, autonomous entity dedicated to empowering members of accounts committees through management and skills development.
[108] Presentation by the AG to the Committee of Chairpersons of the National Assembly, 16 October 2006
[109] Presentation by the AG to the Committee of Chairpersons of the National Assembly, 16 October 2006
[110] Report by the Ad Hoc Committee on the operational problems in the Office of the Public Protector, ATC: September 06; also see Hansard 7 September 06
[111] Act 108 of 1996, s181(5)
[112] Reports of the Parliamentary Monitoring Group
[113] National Prosecuting Authority, the Legal Aid Board etc.
[114] Corder Report 1999 and Interviews with Institutions Supporting Democracy 2006
[115] Act 25 of 2004
[116] Institutions Supporting Democracy 2006
[117] Reports of the Parliamentary Monitoring Group, Assembly Rules Committee 14 October 2005
[118] Lessons from South African Commission on Human Rights: An Examination of a National Human Rights Institution 2006.
[119] The University of Cape Town (UCT) Evaluation of Annual Reports 2005