Chapter Nine Institutions: Time to Guard the Guardians
Video presentation: ISS-Goedgedacht Seminar: “Chapter Nine Institutions: Guardians of Our Constitution”
At the recent meeting between State Institutions Supporting Constitutional Democracy and Parliamentary Committees MPs weighed in on ‘this independence thing’ of Chapter Nine Institutions. One MP asserted that there must be ‘one country, one voice!’ Instead of being vigorously challenged, she was supported by other MPs opposed to Chapter Nine Institutions criticising Government.
This week those with political power demonstrated a similar lack of understanding and respect for the independence of Chapter Nine Institutions. The ANC’s Jesse Duarte and Gwede Mantashe labelled the Public Protector a ‘populist’ who is targeting President Zuma as ‘her personal project’, amongst other scathing and dangerous personal attacks. Such attacks on a Chapter Nine Institution cannot go unchallenged by other Chapter Nine Institutions. All share joint responsibility for creating a human rights culture in our country. When Chapter Nine Institutions give effect to our mandates, political leaders across the board, are entrusted by the Constitution to respond with due respect and to use due process.
Section 181 in Chapter Nine of SA’s Constitution asserts that ‘no person or organ of state may interfere with the functioning of these institutions’. It recognises that our institutions are ‘independent, and subject only to the Constitution and the law; must exercise their powers and perform their functions without fear, favour or prejudice. Other organs of state must assist and protect these institutions to ensure their ‘independence, impartiality, dignity and effectiveness’.
The Review of Chapter 9 and Associated Institutions (popularly known as the Asmal report) notes that the Constitution ‘established an array of Constitutionally protected institutions to strengthen democracy and to promote respect for human rights’ Against the background of an ‘inherited state which was farcically bureaucratic, secretive and unresponsive to the basic needs of the majority of its citizens’, these institutions were established ‘to restore the credibility of the state...ensure that the state became more open and responsive to the needs of its citizens and more respectful of their rights’
One of its key recommendations; that there be a single human rights body, is not a panacea for the hard questions that Asmal recognised. In responding to and interrogating this recommendation, Parliament has to address the reality of political patronage. It has to scrutinise political influence in the selection process, in budgets and in Parliament’s role and responsibility to ensure reports of institutions supporting democracy are used to exercise oversight over the executive (still often characterised by secrecy, bureaucracy and unresponsiveness). Otherwise there is the danger that Chapter Nine institutions can be weakened and set up against each other, rather than complimenting each other to achieve our shared objective.
Following the Asmal report, the Independent Panel Assessment of Parliament, was established in 2007 ‘to enquire into, report and make recommendations regarding the extent to which Parliament is evolving to meet the expectations outlined in the Constitution...specifically the extent to which Parliament ensures there is accountability, responsiveness and openness”. It begins with a quote from former President Mandela’s speech to the final sitting of the first democratically elected Parliament in 1999. “...the committees posed difficult questions of the Executive and given the public insight and oversight of Government as never before...”
The Panel’s report concluded that “The effectiveness of Parliaments oversight work is directly related to the independence of the institution and the ability of individual members of Parliament to raise a critical voice against shortcomings identified in other organs of state, particularly the Executive.” The reality, as noted in the report, is that ‘the integrity of Parliament came into disrepute over the conduct of MPs and the Executive during the arms-deal, the HIV/Aids debacle, Travel-gate and more recently during the dissolution the Directorate of Special Operations, when public criticism portrayed Parliament as a rubber stamp of the Executive and/or the ruling party’.
Former MPs and Ministers reflecting on the HIV/Aids debacle rightly address the culpability of two individuals; President Mbeki and Minister Manto Tshabalala-Msimang. Such analysis has to encompass our collective responsibility for not challenging, (in ourselves, each other and our institutions), the deeply engrained culture of subservience to ‘the leader’, the status quo and the dominant hierarchy. Political patronage, evident across political parties and civil society cannot continue. Critical decisions can no longer be made on the basis of fearing those who dispense or withhold position and power.
Our country’s Constitution is praised as being pro-poor. Despite this, South Africa has high levels of poverty, inequality and violence. Collusion with Business and Government corruption undermines South Africa’s ability to transform this reality. Against this background, the integrity and Constitutional mandate of those entrusted with protecting human rights cannot be undermined and attacked. When it happens it has to be exposed and challenged by all of us.
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Pregs Govender, SAHRC Deputy Chair. Independent Panel Assessment of Parliament Chair (2007-2009). MP (1994-2002)