Independence lost must be found again

PARLIAMENT has called for nominations for seven members of the South African Human Rights Commission. The closing date was September 16.

It is expected the interviews will be held next month. Following the recent process for the public protector, it is assumed the appointment of the members of the SAHRC will receive similar interest and attention.

I had the privilege to serve as a member of the first Human Rights Commission (in terms of the interim constitution of 1993). We gathered at the Ou Raadsaal of Paul Kruger’s Transvaal Republic in Pretoria on October 2 1995. Chaired by the then minister of justice, Dullah Omar, all of us having been sworn in as commissioners, I was elected chairman by my colleagues.

I went on to serve as a member and chairman until 2001, when I resigned.

The commission is one of six state institutions supporting democracy established in terms of Chapter 9 of the constitution.

It is provided in the constitution for these institutions to be independent, execute their duties in an impartial manner and “exercise their powers and perform their functions without fear, favour or prejudice”.

It is the task of the commission to raise public awareness of human rights, receive and investigate complaints and “take steps to secure appropriate redress where human rights have been violated”. In other words, the commission is required to “promote the protection, development and attainment of human rights”.

The first commission was approved unanimously by members of parliament.

It consisted of men and women, black and white, who had been associated with all the political persuasions: ANC, IFP, Democratic Party, National Party, Conservative Party. That was deliberate and it created a large measure of popular confidence and trust in the commission.

Among its first acts was to examine how best it could establish itself as “independent” in keeping with the letter and spirit of the constitution.

The commission resolved to take some voluntary steps. Members would not actively participate in any political party.

After all, the SAHRC Act makes clear that no one is eligible to be a member of the commission who is an office bearer or member of staff of any political party, or is employed by the state, or is an MP.

This gives credence to the stance taken by that first team of commissioners.

It was inconceivable those days for any member to proclaim that DOGGED: All Chapter 9 institutions are indebted to Thuli Madonsela they were deployed by their political party, or to declare that they were a loyal cadre of whatever political movement. It was unthinkable in any of the Chapter 9 institutions that someone who, immediately before, had served as the adviser to the president could be appointed. Presidents Nelson Mandela and Thabo Mbeki, as well as Omar, knew that was sailing too close to the wind.

Since that first commission, the commitment to “independence” has frayed. The ANC, in particular, has actively sought and has used its majority to push through nominations, some of them politically tainted, for appointment to the commission.

The result has been that the cross-party consensus that gave credibility to the early commission was no longer possible. That may have been due to the sharpening of the political contestation, if not the acknowledgement of the growing significance of these institutions.

The struggle to render the commission independent has hardly been fulfilled.

For years we struggled with the idea that the commission was “overseen” and accountable to the Department of Justice. We submitted representations to that effect to the speaker of the National Assembly at the time, Frene Ginwala, who understood our concerns, to the extent that Professor Hugh Corder and later Professor Kader Asmal were appointed to look into the independence and effectiveness of the Chapter 9 institutions.

These reports lay in parliament for years accumulating dust. I believe Asmal’s report eventually received some attention in the fifth parliament.

A little-known but important reason that the independence of the Chapter 9 institutions must be affirmed is that they bear responsibility for nominating to parliament those who may be appointed as members of the Independent Electoral Commission.

Chaired by the chief justice, the chairpersons of the SAHRC and the Commission for Gender Equality and the public protector shortlist and interview candidates for positions on the IEC. Should any one be under the instructions of a political party, it could considerably distort the independence and ultimately the credibility of our electoral management processes.

In my view, the encroachment of the executive on the independence of the SAHRC has been deepened by the 2014 amendments to the act. Whereas previously members elected two of their number to serve as chairperson and deputy chairperson, the 2014 amended act now prescribes that “the president must, on the recommendation of the National Assembly, appoint a chairperson and deputy chairperson of the commission”.

This constitutes the encroachment of executive control of the commission that is unwarranted. This is more so when viewed against the reputation of the National Assembly as being pliant towards the president and appears to believe it is obligated to serve the president’s whims and is disinclined to hold the executive to account.

And yet, thanks to the doggedness of outgoing public protector Thuli Madonsela, all Chapter 9 institutions are indebted to her for the judicial affirmations of the independence of these constitutional bodies that the courts have in recent years pronounced.

It now requires the creativity and advocacy of the SAHRC to do more than merely “performing their duties” but to advance and develop a culture of human rights in society, in the respect of the quality and effectiveness of its “redress” measures it prescribes. Members must be daring, savvy and determined to push the boundaries of human rights much more than they have been known to do in recent years.

For that reason the nominations for members of the SAHRC have taken a significance larger than they have before.

Pityana is a former member of the South African Human Rights Commission and retired principal and vice-chancellor of Unisa

Members must be daring, savvy and determined to push the boundaries of human rights