Submission on state institutions supporting constitutional democracy, 2007
As a section 21 not-for-profit company and a registered law clinic, the AIDS Law Project (ALP) seeks to develop, implement and use laws and policies to protect and advance the rights of people living with HIV/AIDS. In so doing, it aims to ensure arights-based response to the HIV/AIDS epidemic that it believes is best suited to reducing new HIV infections and minimising the negative social impact of AIDS. Part of the Centre for Applied Legal Studies at the University of the Witwatersrand, Johannesburg from 1993 until 2006, the ALP – as an independent organisation – is now formerly associated with the Wits School of Law.
Fundamental to our work is the Constitution of the Republic of South Africa, 1996 – the rights that it entrenches; the positive and negative obligations that it imposes on the state; and the structures that it recognises and empowers to ensure the realisation of the values upon which our sovereign, democratic state is based. In our view, these three elements are intertwined and interdependent – rights cannot be realised without corresponding obligations to respect, protect, promote and fulfil them; obligations can be avoided in the absence of accountability mechanisms.
It is with this in mind that we welcome the National Assembly’s decision of 21 September 2006 to establish an Ad Hoc Committee (“the Committee”) on the Review of State Institutions Supporting Constitutional Democracy (“the Chapter 9s”) and the Public Service Commission (PSC). In particular, we welcome the Committee’s terms of reference, which implicitly recognise the important roles ascribed by the Constitution to the Chapter 9s and the PSC whilst at the same time acknowledging potential room for improvement.
Our interest in this review process is twofold:
- First, our experience in dealing with various Chapter 9s – which is reflected in Annexure 1 to this submission – indicates that many of them are not fulfilling the roles envisaged by the Constitution. In our view, this ordinarily has little to do with the bodies’ constitutional and statutory mandates but is rather a direct result of timid and/or uninspired leadership. Where leadership has been strong and impassioned, Chapter 9s have flourished. With this in mind, our submission seeks to understand the structural problems that undermine strong and effective leadership and how these may be addressed.
- Second, we are aware of the inherent tensions involved in any process where one arm of government considers amending the mandate and/or functioning ofany organ of state set up to monitor, report on and hold that arm of government to account. While Parliament is entitled – and is indeed the only body constitutionally mandated – to perform this task, it must do so in a way that strengthens the ability of the Chapter 9s to discharge their primary roles. By inviting interested parties such as ours to reflect on their experiences, the Committee appears mindful of the need to address this concern.
Notwithstanding our commitment to this process, our submission does not seek to addressthe Committee’s full terms of reference. For example, we only consider those institutions with whom we have interacted directly since their coming into existence – the South African Human Rights Commission (SAHRC), the Commission on Gender Equality (CGE),the Public Protector and the Auditor-General (AG). Further, our considerations and recommendations are somewhat limited in their scope, being based largely on ourexperience during and flowing from such interactions.
In particular, our submission begins with an overall assessment of the relevant institutions. It thereafter addresses the appropriateness and/or adequacy of the institutions’ constitutional and statutory mandates, with a focus on the desirability of any rationalisation of function, role and/or organisation. In addition, but in brief, we also consider the need for a more structured oversight role of the various institutions, with particular attention to the roles of Parliament and civil society, as well as the funding implications of our proposals.