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Unshackle Chapter 9 institutions to make them effective

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A banner of the South African Human Rights Commission. Chapter 9 institutions, Public Protector’s office and the South African Human RIghts Commission, have fared well but they have not been able to perform as anticipated to take us to where we should be as a country, the writer says. – Picture: Motshwari Mofokeng / African News Agency (ANA)

By Bheki Mngomezulu

As we celebrate 30 years of freedom since the new political dispensation which was ushered in by the first democratic election in April 1994, this is our opportune moment as a nation to take stock of how far we have gone in the realisation of the goals we set for ourselves.

Any self-introspection inevitably includes confirming the successes we have made and building on that while also acknowledging some of the challenges the country must still address.

Every year on March 21, South Africa celebrates Human Rights Day (previously known as Sharpeville Day). This followed the unfortunate incident on March 21, 1960, in Sharpeville where black people protested the carrying of passes.

The apartheid state responded by force, killing 69 people, 10 of them children. Moreover, 180 people were injured. This figure includes 19 children. Some of the casualties were left paralysed.

At the dawn of democracy in this country, the Interim Constitution was adopted in 1993 to pave the way for the first general election. After the election, the new Constitution was adopted in 1996 as Act 108.

Chapter 9 of the Constitution is titled “State Institutions Supporting Constitutional Democracy”. The first two of these institutions are the Public Protector and the South African Human Rights Commission (SAHRC).

These two institutions are critical in terms of democratic consolidation. The Public Protector receives, investigates and reports on cases. Importantly, it also takes remedial action.

It sometimes makes recommendations on what other state institutions such as the National Prosecuting Authority must do. Every citizen has the right to launch a complaint in this office, thereby exercising their human rights.

First, the SAHRC is responsible for the promotion of respect for human rights. Second, it must promote the protection, development and attainment of human rights. Third, it is saddled with the responsibility to monitor and assess the observance of human rights in the Republic.

Like the Public Protector, the SAHRC:

  • Has the power to investigate and report on its observation of human rights.
  • Is empowered to take steps to secure appropriate redress in instances where human rights have been violated.
  • Has the responsibility to conduct research so that it arrives at the correct conclusion.
  • Has the responsibility to educate.

While all these constitutional prescripts are there, 30 years down the line, as a country we are not where we envisaged we would be. Both the Public Protector and the SAHRC have made some strides, but they have not been able to perform as anticipated.

Starting with the Public Protector, this office has experienced many challenges under a different leadership. The first incumbent in 1995 was Selby Boqwa. Lawrence Mushwana assumed office in 2002. On October 19, 2009, advocate Thuli Madonsela ascended to the office. She was succeeded by advocate Busisiwe Mkhwebane on October 19, 2016.

One of the main challenges that this office has wrestled with has been political interference – both real and perceived. Of these leaders, advocate Madonsela is generally credited for having brought stability and respect into that office. But she, too, could not be insulated from political influence.

The way she handled the matter involving former president Jacob Zuma in an arguably personal manner discredited her somewhat. While some praise her for proposing the establishment of the State Capture Commission, others blame her for tampering with Section 84 of the Constitution on the powers and functions of a sitting president.

Specifically, Section 84(f) states that the president is responsible for “appointing commissions of inquiry”. Madonsela’s proposal was that the Constitutional Court should be the one appointing the chairperson of such a commission. Sadly, the Constitutional Court complied. This incident compromised both Madonsela and the office she ran.

Mkhwebane was accused of being Zuma’s saviour even before she started doing her work. Inevitably, this meant that anything she did was bound to be perceived negatively regardless of how well or badly she executed her constitutional mandate.

Where political influence became glaring was when she announced that she was going to investigate the Phala Phala matter involving President Cyril Ramaphosa. She was immediately suspended from her office. Subsequently, she was subjected to an inquiry.

Since her removal process was unprecedented, rules had to be crafted. The process was rushed – not with the intention to serve justice but to push a political agenda. Her detractors realised that her term of office was coming to an end. They unjustifiably rushed the process, which would rob her of all her benefits.

The circumstances under which the current incumbent ascended to the office did very little to protect the image of this institution.

Regarding the SAHRC, its mandate was clearly stated in the Constitution. However, financial challenges and political influence have made the work of this institution difficult. Staffing issues further cripple the work of the commission. Therefore, the commission has not performed optimally.

Therefore, while it is true that the two institutions have done something to protect human rights, the country is not where it is supposed to be. Apart from financial and resource constraints, the two institutions have been weakened by political influence. In short, 30 years down the line, South Africa is not where she should be. The two institutions still have a lot to do. To achieve this goal, self-introspection is critical.

Prof Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy (CANRAD) at the Nelson Mandela University