The Human Rights Institute of South Africa (HURISA) in collaboration with the Open Society Foundation of South Africa (OSF-SA), and Konrad Adenauer Stiftung, hosted a two-day conference on the future of the Chapter 9 Institutions from 12-13 June 2008 in Johannesburg.

Participants at the conference titled “Strengthening the capacity of national institutions” analysed two reports: the 2007 Report of the Parliamentary ad hoc Committee on the Review of the Chapter 9 and Associated Institutions (otherwise known as the Asmal report) And the HURISA report into the Effectiveness and Impact of Three Constitution Building Institutions in South Africa.

The HURISA report analyses the South African Human Rights Commission (SAHRC), Commission on Gender Equality (CGE), as well as the Public Protector.

In her presentation, HURISA Executive Director, Corlette Letlojane, argued that the Chapter 9 Institutions are not accessible to poor and marginalised people in the rural areas because they are largely urban-based. The HURISA report also focused on the consequences of the overlapping functions of the SAHRC, CGE and Public Protector as well as how external factors such as political influence and limits to their power and authority affect the way they carry out their work.

Examining the SAHRC, CGE and Public Protector

The Asmal report proposes the establishment of an umbrella human rights body – the South African Commission on Human Rights and Equality. It recommends that the National Youth Commission (NYC), Commission on the Promotion and Protection of Cultural, Religious and Linguistic Communities (including the Pan South African Language Board), SAHRC and CGE, be incorporated into this overarching human rights body.

People Opposing Women Abuse (POWA), a NGO working towards the eradication of all forms of violence against women, are opposed to the idea of incorporating the CGE into this proposed new body.

POWA’s Legal Services and Advocacy Programme Manager, Wendy Isaacks, said the maintenance of and sustainability, without rationalisation, of the SAHRC and the CGE are central to the realisation of the State’s duty to protect women from violence. She argues that the CGE must pay special attention to the fact that certain groups of women are more vulnerable than others.

Isaacks’ view is echoed by the CGE Chairperson, Nomboniso Gasa, who stated that the Commission has already put systems in place to address the weaknesses identified by the Asmal report.  Gasa pointed out that South Africa needs to have a debate that will translate into building the Chapter 9 Institutions as opposed to amalgamation. She lashed out against the HURISA report for being “gender-blind” and “missing the fundamental issue of gender equality.”

Responding to this criticism, Letlojane cautioned against what could be seen as protecting “turf”. Letlojane emphasised that that some of the Chapter 9 institutions have been ineffective in carrying out their mandates; she said this needs acknowledgement.

The HURISA report found that the Chapter 9 Institutions are reactive rather than proactive in their work. For example, the report points to a perception among many South Africans that the SAHRC only reacts after issues of human rights violations have been highlighted in the media.

SAHRC CEO, Tseliso Thipanyane, admitted that the Commission could still do more on poverty and calling ministers to account. Thipanyane urged delegates to consider the availability of sufficient resources when talking about the effectiveness of the Chapter 9 Institutions. He argued that members of parliament are accountable to their political parties, adding that this undermines the country’s so-called participatory democracy. It would therefore be the political party, and not the SAHRC which would take action against parliamentarians.

The HURISA report concludes that the majority of people believe the Public Protector to be either ineffective or obedient to the interests of the African National Congress (ANC). The report states that it is worrying that there is a culture of absolving any wrongdoing, especially in cases such as the arms deal, the Oilgate scandal, as well as Phumzile Mlambo-Ngcuka’s controversial trip to the United Arab Emirates in 2005.

Responding to this criticism, Public Protector, Lawrence Mushwana, said: “I am a member of the ANC but cannot protect corrupt people.”

Mushwana said the doors are open for what he calls “reliable NGOs” to work with the Public Protector to reach out to the communities, to overcome the problem of accessibility. He said the Public Prosecutor is currently launching mobile offices in the villages around the country, to educate the people about its work.

International experience

The conference also drew experiences from other African countries facing similar challenges. According to Redson Kapindu, who spent five years with the Malawi Human Rights Commission, unlike South Africa, Malawi has established these institutions under different pieces of legislation.

Kapindu stated that most Malawians believe that separating these institutions will lead to greater expertise and speed up service delivery. He supports the amalgamation of some of the South African Chapter 9 institutions.

Implications of amalgamation of Chapter 9 Institutions

The Asmal report recommends a team consisting of the heads of the relevant institutions and a number of members of the National Assembly be established to produce a roadmap to guide the process. Once established it is proposed that the team report to the National Assembly within a year.

Sebastian Seedorf, senior researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), noted that the proposed amalgamation would help avoid overlapping, strengthen the institutions, and address the problem of capacity.

According to Seedorf, some of the following options should be considered when discussing the proposed human rights body:

• Focus on individual cases or focus only on awareness
• Have powers to litigate, subpoena, search and seize documents
• The involvement of a wide range of stakeholders, including the opposition when making appointments
• Appoint a member from civil society, to make them more independent 

More information

• Report of the Parliamentary ad hoc Committee on the Review of the Chapter 9 and Associated Institutions, 31 July 2007
• HURISA Report, Effectiveness and Impact of Three Constitution Building Institutions in South Africa, June 2007
• People Opposing Women Abuse (POWA) submission to the Ad-Hoc Committee on the Review of State Institutions Supporting Constitutional Democracy

– Butjwana Seokoma, Information Services Coordinator, SANGONeT