Gender Commission finally has commissioners but battles are not over yet

It is a no-brainer that a commission without commissioners ceases to operate. But, by the second half of May, the Commission on Gender Equality (CGE) had only two commissioners left, with terms expiring before June 7.

So it was déjà vu at the CGE: in 2006-2007, the CGE had no commissioners, for which the blame should be laid before Parliament’s door, as it failed to ensure new appointments. During the latest replay, the number had already back in 2010 dropped below the legal requirement of seven commissioners. The presidency only managed to make the appointments on May 31, a week before the expiry of the last remaining commissioner’s term.

If the commission is not legally constituted, it could have far-reaching implications for the exercise of its powers, which include the issuing of subpoenas and holding of hearings.

The lack of commissioners forced those remaining to disband internal sub-committees responsible for financial oversight and for projects on gender-based violence and other CGE work, according to Janine Hicks, whose first term as commissioner would have ended on June 7. She was among the new appointments that the presidency finally made on May 31.

The delay in appointments seemed to stem from confusion over numbers to be appointed to fill vacancies (the CGE Act provides for the appointment of 11 commissioners plus a chairperson), as well as differentiation between part- and full-time commissioners.

Parliament had placed before the presidency a list of nine commissioners to be appointed.

Among those appointed is Wallace Mgoqi, confirming that the ruling party still regards Chapter Nine institutions as parking spaces for loyal comrades. Mgoqi may be known for defying the DA after his axing as Cape Town city manager but definitely not for any gender work.

The successful candidates had been in limbo after Parliament’s recommendation, not knowing if and when the presidency would effect the appointments. Hicks, along with then commissioner Kenosi Meruti, CGE CEO Keketso Maema and management in May presented the CGE’s strategic plan for 2012-2017 to the portfolio committee on women, children and people with disabilities.

Commissioners used that opportunity to appeal to the portfolio committee to pursue the matter of the delays with the presidency and also wrote to the speaker. The portfolio committee promised to look into it.

It is notable that among the constitutional chapter nine institutions particularly the CGE seems subject to delays in appointments. The CGE had been without a chairperson since 2009, another appointment that the presidency failed to make. Maema acted in the position of CEO for two years before finally being appointed in 2010.

Feminists close to the process regard these problems as ramifications of the ANC’s toying with the idea to have the commission disbanded, especially after public protector and auditor general investigations into misconduct and fraudulent and irregular expenditure in the 2007/2008 and 2008/2009 financial years.

A controversial independent audit recommended in 2008 that the commission be placed under “mentorship”; Parliament’s ad hoc committee on the review of chapter nine and associated institutions, which the late Kader Asmal chaired, recommended in 2007 that the CGE be collapsed into the Human Rights Commission.

While the commission has not been able to totally avoid controversy in recent years, as its last chairperson, Nomboniso Gasa, left under a cloud, the outgoing crop of commissioners worked hard to clean up the commission’s act. The commission is due to receive its second unqualified audit from the auditor general, testimony to its return to sound governance.

It has also been applying its full powers to call hearings and subpoena government departments and companies to appear before it.

However, while the outgoing commissioners turned things around, Parliament still has to attend to the long overdue alignment of the CGE Act with the 1996 Constitution and the Public Finance Management Act, recommended by its own ad hoc committee on the CGE forensic investigation already in April last year.

Previously the justification for pressure to scrap the commission was that the commission was dysfunctional. Why it would make sense to scrap the organisation rather than to fix it, is unclear. Particularly, as Hicks notes, as gender power relations have not substantively improved between the promulgation of the CGE Act in 1996 and today.

Some of the impetus for scrapping the CGE emanates from the new institutional kid on the block, the ministry for women, children and people with disabilities (or “the ministry for everybody except able-bodied adult men”, as an activist joked).

The incumbent, Lulu Xingwana, is known as a proponent of collapsing the commission into the HRC. Since the minister’s appointment in 2010, attempts by the CGE to set up a high-level meeting with her on role clarification have been unsuccessful.

Xingwana has complained about 50 percent of “her department’s budget” going to the commission, which is an incorrect depiction, as the commission has its own budget allocated by the treasury which is merely channelled via the department. Previously it was channelled via the justice department.

She should reconsider her position. The CGE has unique oversight powers which a minister cannot exercise in relation to her peers in cabinet. Also, the CGE’s present budget remains inadequate for the implementation of its mandate, which means the ministry won’t win much if it absorbed that budget. It makes political sense to vie for more money to be allocated to gender work all-round, including her ministry, instead of merely transferring an already measly budget from one institution to another.

If motivating increased spending on women’s empowerment is a problem, treasury should be reminded of the deteriorating statistics on rape and socio-economic inequality, which affect women most.

This monthly column series, which appears in The Star, Cape Times, Mercury and Pretoria News, is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.