Combine the Chapter 9s? How about some time?

Yesterday (Tuesday) I noticed a call from Parliament’s website to comment on the Feasibility of Establishing a Single Human Rights Body. The call notes that in 2006, Parliament appointed an Ad Hoc Committee to undertake a Review of Chapter Nine and Associated Institutions.

One of the key recommendations of the Ad Hoc Committee was the establishment of a “Single Human Rights Body”, amalgamating the following institutions:

The National Youth Development Agency,
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities,
The Commission for Gender Equality,
The Pan South African Language Board, and
The South African Human Rights Commission.

The aim of doing this would be to avoid duplicated effort, use resources (human and financial) efficiently, and improve public access by having a coordinated approach. Parliament then invited submissions by the 25th of May 2017, just ten days after the announcement appeared online.

Now, surely the matter of doing away with some of our critical democratic institutions is not a matter to be easily decided. There doesn’t seem to be any merit in rushing a submission or comment on this.

It’s true that the Chapter 9 Institutions have become increasingly weakened over the past decade by poor allocation of financial resources (with the exception of the NYDA that is just rolling in dosh), the requirements of sticking to reporting on international treaties sometimes at the expense of pursuing local interests, the decreasing respect / value accorded to these institutions in political spaces, and the lack of follow up on the recommendations they make.

But, these institutions are Constitutionally created and protected.

The Constitution, Chapter 9, Section 181 (2) provides for the independence and impartiality of of Institutions Strengthening Constitutional Democracy, and states that they must “exercise their powers and perform their functions without fear, favour or prejudice.” Section 181 (3) states that “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity, and effectiveness of these institutions.” Section 181 (4) states that “No person or organ of state may interfere with the functioning of these institutions.” Finally, Section 181 (5) states that “These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.”

To me then, this sudden call for a review of the powers functioning of some of these organisations raises a number of questions:

1. Has the State assisted and protected these institutions as it is Constitutionally required to do?

2. When these institutions have reported to the National Assembly annually, has Parliament taken up its own role in making sure that any inefficiencies, duplications, or uncertainties around their functions, are addressed?

3. Given that these institutions play an important role in promoting equality and protecting the human rights of South Africans, particularly vulnerable groups, why is there a ten-day deadline in which to comment?

To me, the first and second questions have easy answers – No. A quick budgetary analysis will show that under-resourcing of these institutions is significant. Each year, for example, the CGE reports to Parliament quarterly through the Portfolio Committee on Women. And each year that Committee reflects on the smaller and smaller budget, and recommends that this is addressed to improve the functions, and each year…nothing happens. So Parliament is failing to ensure that its recommendations to Treasury and to the CGE are enforced.

But the answer to the third question is less clear. Why not allow more time for meaningful engagement both from the Chapter 9s themselves and from civil society? Why try to rush a process that could have significant effects on the lives of South Africans, and that would affect the nature of the Constitution, Section 189? The answer can’t be because a parliamentary report in 2006 recommended it, because there are hundreds of reports that go through Parliament each year that make recommendations and aren’t upheld (cough, cough, um electoral reform?)

There does not seem to be any clear reason for the limited time frame. A more reasonable time frame would be to allow at least one month, ideally two for civil society organisations supporting democracy to prepare their submissions on the matter. Anything less, in my view, casts a question on whether Parliament wants to uphold Section 189 (3) (4) of the Constitution.

If you agree, write to the Office of the Institutions Supporting Democracy, here [email protected], asking for an extension to at least mid-July.