South Africa's People's Parliament: The Dream Deferred

Dedication:

This book is dedicated to the millions of ordinary South Africans that deal with their daily physical, emotional, spiritual, financial and social struggles, in an honest and courageous manner. Never giving up, never giving in and never taking short-cuts to meet their basic human needs, to feed their families and to pay the bills. Keep running the race (2 Tim.4:7), keep shining the light (Matt.5:16), stand firm and hold your position (Ef.6:13) - on the moral and spiritual high ground. May God continue to bless South Africa.

* Picture on front cover: The march to Parliament to put the spotlight on the political oppression of Parliament’s employees.

South Africa’s People’s Parliament: The dream deferred.

First published in 2014

Published by Gabriel Campher at Smashwords

Website: www.thecandidate.org.za

Copyright published edition: Gabriel Campher 2014

Copyright text: Gabriel Campher 2014

All rights reserved: No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopy, recording or otherwise, without the written permission of the copyright owners. All necessary steps were taken to contact the relevant copyright owners. If there has been oversight, please contact the publisher.

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ISBN : 978-0-620-59739-5 (electronic copy)

ISBN : 978-0-620-59738-8 (print copy)

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TABLE OF CONTENTS

GLOSSARY

PREFACE

CHAPTER 1 – Introduction (A dream deferred!)

CHAPTER 2 – Parliament: Supporting Democracy

CHAPTER 3 – Legal Framework for Political Activities

CHAPTER 4 – Review Of Parliament’s Policies – 2005

CHAPTER 5 – Dismissal - 2006

CHAPTER 6 – Dismissal - 2007

CHAPTER 7 – Dismissal - 2008

CHAPTER 8 – Dismissal - 2009

CHAPTER 9 – Dismissal - 2010

CHAPTER 10 – Dismissal - 2011

CHAPTER 11 – Dismissal - 2012

CHAPTER 12 – Pension - 2006, 2007

CHAPTER 13 – Illegal SAHRC - 2008

CHAPTER 14 – Illegal SAHRC - 2009

CHAPTER 15 – Illegal SAHRC - 2010

CHAPTER 16 – Illegal SAHRC - 2011

CHAPTER 17 – Illegal SAHRC - 2012

CHAPTER 18 – Illegal SAHRC - 2013

CHAPTER 19 – Illegal SAHRC - 2014

CHAPTER 20 – General Elections 2014 and Beyond

CHAPTER 21 – Conclusion

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Glossary

Ubuntu – ‘humaneness’ in isiZulu (One of South Africa’s 11 official languages)

Batho pele – ‘people first’ in Sotho (One of South Africa’s 11 official languages)

Franciscan Blessing – Blessing of Franciscan Order [established in 1209 by St. Francis]

Freedom Charter – the 1955 document that contains the demands and dreams of South Africa’s oppressed people under Apartheid.

Presiding Officers – They preside over the plenary sessions in the two Houses of Parliament: The Speaker in the lower house (National Assembly) and the Chairperson in the upper house (National Council of Provinces).

AG – Auditor-General

AIDS- Acquired Immune Deficiency Syndrome

ANC- African National Congress [political party]

Broer- ‘brother’ in Afrikaans

CC- Constitutional Court [statutory body]

CCMA - Commission for Conciliation, Mediation and Arbitration [statutory body]

CPF- Community Police Forum [statutory body]

Coloured – people of ‘mixed-blood’ heritage [Called ‘African-American’ in the USA]

COPE- Congress of the People [political party]

COSATU- Confederation of South African Trade Unions [national federation of unions]

DA- Democratic Alliance [political party]

FF- Freedom Front [political party]

FF+- Freedom Front Plus (FF and other right-wing parties) [political party]

HIV- Human Immune Virus

HR – human resources

ID- Independent Democrats [political party]

IDASA- Institute for a Democratic Alternative for South Africa [NGO]

IEC- Independent Elections Commission [statutory body]

IFP- Inkatha Freedom Party [political party]

MP- Member of Parliament

MPP- Member of Provincial Parliament

NA- National Assembly [lower house of Parliament]

NCOP- National Council of Provinces [upper house of Parliament]

NGO- Non-governmental organisation

NEHAWU- National Education, Health and Allied Workers Union [part of COSATU]

NOTA- none of the above

NP- National Party [political party]

NNP- New National Party [political party]

PMU - Policy Management Unit [HR unit of National Parliament]

PP- Public Protector [statutory body]

PAC – Pan-Africanist Congress [political party]

RSA- Republic of South Africa

SACP- South African Communist Party [political party]

SAHRC- South African Human Rights Commission [statutory body]

SANDF – South African National Defence Force [statutory body]

SARS – South African Revenue Service [statutory body]

SAPS – South African Police Service [statutory body]

SGB- School Governing Body [statutory body]

SMS – short message service (via mobile phone)

SU- University of Stellenbosch

UDF- United Democratic Front [political movement; active during Apartheid years]

UDM- United Democratic Movement [political party]

UN- United Nations

UNESCO- United Nations Education, Scientific and Cultural Organisation

US- United States

USA- United States of America

VAP- voting age population (i.e. people who are 18 years and older)

WC-Western Cape Province

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Preface

‘A journey of a thousand miles starts with a single footstep.’

Chinese proverb

Some people believe that I started this journey (or ‘crusade for justice’) on 6 March 2006, when I was summarily fired after nearly ten years of dedicated service. The offence: I exercised my constitutional right to stand for public office. Parliament (RSA) seemingly had an Apartheid-era policy that prohibited the candidature or appointment of employees to statutory bodies. However, at the time, some staff members were serving on statutory bodies and were unknowingly contravening the policy, because it was generally unknown. A signed copy of this policy was never produced to staff members or at my disciplinary hearing.

The disciplinary process was a ‘comedy of errors’, because the defence team missed various opportunities to secure a reinstatement:

(a) the policy was generally unknown – my supervisor, a management board member and about thirty staff members signed a petition that they did not know of the policy,

(b) the policy was not consistently applied – two staff members participated in previous elections and another was a member of a statutory body,

(c) there was no signed workplace policy,

(d) the policy was not consistent with the Constitution of the country and therefore invalid.

These issues were however not argued convincingly at the CCMA, due to the quality of the union representation. However, the SAHRC and Public Protector would play the role of the ‘White Knight’ at a critical point in this political nightmare. In the final analysis, my dismissal turned out to be a blessing, because once I was outside, I saw the real Parliament and the real ANC – and the broken promises (and shattered dreams) of Freedom. This is the story…

I believe that my political journey started when I was born, as a Coloured in a Eurocentric world - a world in which everything revolves around White people. This fact was driven home by the fact that I was born in South Africa, where racial discrimination was written into the law books – Legal? Yes. Moral? No!

My political consciousness was awaken at high school during the 1985 and 86 ‘States of Emergency’. Schools and communities were disrupted with stones, teargas and rubber bullets - the call was made: Liberation, before education! During marches and mass meetings the cry of the People was: What have I done..? What have I done..? My only sin is the colour of my skin... The ‘State of Emergency’ and the state-sponsored violence were frantic attempts by the Apartheid government to crush the people in their fight for political rights, but it merely postponed the inevitable.

My political consciousness was given revolutionary content, when I attended the University of the Western Cape (UWC) in Bellville. UWC was a beacon of hope for disadvantaged students in the 1970s to early 1990s. It provided an opportunity to these students, including myself, to obtain a tertiary qualification in a country where 75% of the education budget was spent on Whites, which formed a mere 13% of the population.

I obtained a teaching qualification and left my hometown, Bellville in 1992, to teach in the northern part of the Cape Province in the towns of Springbok, Nababeep and Loeriesfontein. With the birth of the new South Africa in 1994, the province was named the Northern Cape. I was elected chairperson of the African National Congress (ANC) in Loeriesfontein and was central in the organisation and campaign of the ANC during South Africa’s first democratic general elections in 1994 and the local government elections in 1995. I later served on the municipal council as an ANC councillor.

My political journey was always driven by a revolutionary fire that was fuelled by the desire for justice, fairness and integrity. As such, I joined the ANC, which was a collection of individuals that subscribed to the same values. The ANC was the only progressive social and political force that worked to improve the lives of the poor, the disadvantaged and the marginalised. It was then automatic for me to vote ANC in the general elections of 1994, 1999 and 2004, as well as the local government elections in 1995 and 2001.

I became however disillusioned with the arrogance and nepotism of the ANC government and decided not to vote ‘ANC’ in the 2006 local government elections, because I would become an accomplice in the ANC’s betrayal of the people. I also decided not to vote for the other parties, which did not have any substantive policies, but were merely ‘anti-ANC’. As such, I decided, in 2006 to stand as an independent candidate in my municipal ward, to bring about change in and services to my ward.

This book contains my political thoughts, as well as the many letters that I wrote and received in my endeavour to prove the injustice that was committed against me and my former colleague Shamiel Abbas of the Independent Democrats. Abbas trusted his political party to fight for him, but the fight never materialised – he lost 24 years of dedicated service in the public service.

In this book, I have arranged the letters into three themes: (a) illegal and unconstitutional dismissal, (b) fight for my pension and (c) the illegally constituted SAHRC. In the first few chapters, I have included information to contextualise the political situation, the vision of parliament and my ethical world-view, which would inform an appreciation and understanding of the letters that would appear in the other chapters.

I put markers (*) for you, the reader to help you make sense of the writing – the South African context, the terminology and whether a letter was responded to. This is accentuated by proverbs; words of wisdom from famous people and the Bible. The format of the book could have been in one of two ways;

1. putting a letter and its response together or

2. putting the letters in chronological order, even though a response might have been received many months later.

I went for the second option, because it indicates the frustration and disbelieve that I went through – waiting for a response, waiting for a helping hand, whilst the dreams of my family were being destroyed.

When former President Nelson Mandela (Madiba) was released from prison, he said: Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.

I am afraid that it did happen in a free South Africa, which (almost?) nullifies the sacrifices of people, like Madiba, Steve Biko, Desmond Tutu and Kader Asmal, to name but a few. The ideal of a People’s Parliament is an ideal that many South Africans and other nationals have fought for, but we realise that it is an ideal that is a work in progress – the People must stay continuously vigilant to ensure that Parliament is for the People and by the People.

GABRIEL CAMPHER

February 2014

Cape Town

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CHAPTER 1

Introduction

A dream deferred!

If you have run with footmen, and they have wearied you; Then how can you contend with horses? God – The Book of Jeremiah (12:5)

A dream deferred by Langston Hughes

What happens to a dream deferred?

Does it dry up like a raisin in the sun?

Or fester like a sore and run

Does it stink like rotten meat?

Or crust and sugar over a syrupy sweet

Maybe it just sags like a heavy load

Or does it explode?

In the book, Thabo Mbeki: The dream deferred, Mark Gevisser wrote that former President Mbeki, never really knew his father (Govan), because of his father’s political activities (always in meetings, on the run from police or in prison). As such the young Mbeki had to give up (defer) his own personal dreams; of having a father and a happy childhood, to obtain freedom for millions of South Africans. The day when he finally met his father, who spent 26 years on Robben Island (with Nelson Mandela), it was not as father and son, but as comrades, because he had been assisting the ANC’s president, Oliver Tambo for decades to run the movement from outside South Africa.

In order to survive in exile, Thabo Mbeki had to be paranoid about infiltration by the Apartheid government’s secret police, but that paranoia filtered into his leadership style, which eventually led to his ousting (‘recall’) as president of a free South Africa. One can add that he had to defer his dreams, but at what cost to him and the nation, especially the millions that were infected and affected by HIV and AIDS, because of his paranoia about foreign pharmaceutical companies and his denial that Aids is caused by a virus? Mbeki’s deferred dream ‘dried up, like a raisin in the sun’.

Prof Adam Habib, then of the University of Johannesburg, explained the 2008 xenophobic violence at the time in the country as an explosion, a volcanic eruption. The signs, ‘like a sore’, were visible for a long time, but the ANC government conveniently ignored the stench. In 1994, 1999 and 2004 the people voted for ‘houses, security and comfort’ (as per the Freedom Charter), but the money was diverted into the pockets of the fat cats. The dissatisfaction of these homeless and jobless South Africans eventually exploded into murder and mayhem that were aimed at black foreigners, who were competing against them for the same limited resources – jobs, food and shelter. The deferred dream of the ANC government ‘exploded’.

In 1955, at the height of Apartheid, many community organisations met in Kliptown (Soweto) as ‘The Congress of the People to put their demands on paper. This list of demands or rights (or dreams!) developed into the Freedom Charter, which informed our Constitution (Act 106 of 1996) in a free South Africa. The Freedom Charter contained dreams like; the People shall govern and there shall be houses, security and comfort". Fifty-nine (59) years later, in a free and democratic South Africa, the dream of a People’s Parliament, a Parliament that speaks for the People (not for fat cats), has not been realised. Members of Parliament swear allegiance to the Constitution and the People, but in their actions they toe-the-party-line to protect their parliamentary seats.

Archbishop Desmond Tutu (the Arch), one of the most respected South Africans, locally and internationally, indicated that he would not vote in the 2009 general elections. Will he vote in 2014, which will mark 20 years of a free South Africa? The dream that the Arch dreamed in 1994, has not been realized. The big question is this: "What will the millions of other South Africans do with their power - their vote? Will their dreams ‘just sags like a heavy load’, will it ‘dry like a raisin in the sun’ or will it ‘explode’?

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The Notion of a People’s Parliament

‘A king is a king, because of people.’

- Zulu proverb (South Africa)

Before 1994, the majority of South Africans was not represented or spoken for in the Parliament of South Africa. They did not elect ordinary men and women, that is, Members of Parliament (MPs), to represent them in Parliament, where the laws of the country were made. The Apartheid laws, which were applied to them, were not of their making and not to their benefit. It only served the interest of a small minority of the population, which was deliberately White. This was the antithesis of what the South African People yearned for - a Parliament that put them at the centre of government.

In 1955, various anti-Apartheid organisations met as the Congress of the People in Kliptown, Johannesburg to compile a charter (list of demands/rights/dreams) that would herald in a free South Africa. The famous first article of this charter, called the ‘Freedom Charter’ is:

1. The People Shall Govern

Every man and woman shall have the right to vote for and stand as a candidate for all bodies, which make laws. All the people shall be entitled to take part in the administration of the country. (my emphasis)

The oath/affirmation of a new Member of Parliament

I, AB, swear/solemn affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other laws of the Republic; and I promise to perform my functions as a member the National Assembly or delegate of the National Council of Provinces to the best of my ability [from: The South African Constitution, (Act 108 ,1996)]

It has become clear that a vast majority of MPs do not really understand the oath or affirmation and their duty to speak for the People. Parliament has become a ‘Party Parliament’, because the MPs put the interests of their political party, before that of the People.

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The dream of a ‘People’s Parliament’ deferred

It seems that the dream of a People’s Parliament has been deferred in the post-Apartheid South Africa. This nullifies the Freedom Charter, the Constitution and the oath of the MPs. It also means that the many people that were killed, maimed, imprisoned or exiled, because of Apartheid was in vain. The once respected freedom fighters have become greedy politicians, who have the ‘What’s in it for me?’ attitude. Some of them, like a former ANC spokesman and now an MP for COPE, said blatantly that he did not join the anti-Apartheid struggle to be poor!

The Constitution created various institutions to strengthen our democracy (government by the people) against a too strong executive branch. These institutions include Parliament, the Human Rights Commission, the Public Protector, the National Prosecuting Authority and the Independent Electoral Commission. Of all these institutions, Parliament, is supposed to be the supreme institution of democracy, but it has systematically weakened itself and the other institutions, in favour of the executive. In the Westminster parliamentary system, the junior party members are in Parliament and the senior members are in government. As such ambitious Parliamentarians will always tow-the-party-line to ensure that they will be promoted to a cabinet position. The result is that these institutions, especially Parliament, are too weak to properly hold the executive accountable to the People. The People’s Parliament has been deferred…

The only way to strengthen our democracy is for ordinary citizens to elect men and women of integrity to Parliament – men and women that will honour their oath or affirmation and speak for the South African People. Only the citizens can ensure that the People’s Parliament becomes a reality. The power is in their hands! As the Freedom Charter states; Let the People govern!

This notion of a People’s Parliament is based on the willingness of the People to give up some of their freedoms and power to leaders to rule them – no, to lead them. The French philosopher, Jean-Jacques Rousseau, called this willingness the ‘general will’ in his book, the Social Contract of 1762.

"I MEAN to inquire if, in the civil order, there can be any sure and legitimate rule of administration, men being taken as they are and laws as they might be. In this inquiry I shall endeavour always to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided.

I enter upon my task without proving the importance of the subject. I shall be asked if I am a prince or a legislator, to write on politics. I answer that I am neither, and that is why I do so. If I were a prince or a legislator, I should not waste time in saying what wants doing; I should do it, or hold my peace.

As I was born a citizen of a free State, and a member of the Sovereign, I feel that, however feeble the influence my voice can have on public affairs, the right of voting on them makes it my duty to study them: and I am happy, when I reflect upon governments, to find my inquiries always furnish me with new reasons for loving that of my own country." [from ‘The Social Contract’ - Book I]

It is thus the duty of the People to remain vigilant and engaged to ensure that the leaders use the People’s power appropriately and to the benefit of the people – and then the People shall govern!

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Parliament of South Africa

Mapping the future; Strategic Map - 2004 to 2009

VALUES

Our values are the set beliefs that guide the management of Parliament. We keenly believe in the following;

- Constitutionality

- People-centredness

- Co-operative government

- Professionalism

- Good institutional governance

MISSON

Our mission indicates the purpose of parliament, its reason for existence as outlined in the mandate. Our mission therefore is;

As the freely elected representatives of the people of South Africa, our mission is to represent, and to act as a voice of the people, in fulfilling our constitutional functions of passing law and overseeing executive action.

VISION

The future dream and ambition of Parliament being within sight but out of reach.

Our vision therefore is;

To build an effective people’s Parliament that is responsive to the needs of the people and that is driven by the ideal of realizing a better quality of life for all the people of South Africa.

A people’s Parliament to transform an entire society. Establishing a society based on democratic values, social justice and fundamental human rights.

A people’s Parliament of freely elected representatives building on the foundation of a democratic and open society based on the will of the people, their participation and access to Parliament.

A people’s Parliament providing a national forum for public consideration of issues, which includes educating, informing an involving the people of South Africa in its processes and acting as a voice of the people.

A people’s Parliament co-operating with other spheres of government as it deepens and entrenches our democratic values.

A people’s Parliament working with continental and international bodies to create a new democratic and participatory world order.

A people’s Parliament passing good laws, and scrutinizing and overseeing executive action, as it moves to improve the quality of life of the people of South Africa, building a united and democratic South Africa.

* This 2004 parliamentary document mapped out the future for Parliament over a five-year period. Whether they met these goals in 2009 or even in 2014; you’d be the judge.

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CHAPTER 2

Parliament: Supporting Democracy

‘Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.’ - Nelson Mandela

The Asmal report

‘A person makes a living by what he receives, but he makes a life by what he gives.’

- Norman McEwan

The Ad hoc Committee on the Review of Chapter 9 and Associated Institutions was established on 21 September 2006 and reported to the National Assembly on 31 July 2007. The committee was tasked to; (a) review the appropriateness of the appointment of commissioners and office bearers to enhance consistency, accountability and affordability; (b) review institutional governance to enhance accountability and efficiency; (c) improve the coordination of these state institutions with the executive, parliament and other stakeholders and (d) review the funding model. This multi-party committee was chaired by Prof Kader Asmal, MP.

The committee found that state institutions, which were established by the Constitution to strengthen democracy (also called Chapter 9 bodies) followed different and inconsistent funding processes. This could compromise their independence, because their budgets were obtained via the state departments, i.e. the executive. The committee recommended that these institutions’ budgets should be part of Parliament’s budget vote to ensure independence from the executive, so that their oversight over the executive could be enhanced.

In the foreword of the committee’s report, it was stated that the report was aimed at six constituencies; (a) the eleven state institutions reviewed, (b) Members of Parliament, (c) the public, (d) the executive, (e) Parliament and (f) the media.

It is worth noting what it said about the public, that is the South African people. It stated that the South African people should use the report to deepen their understanding of these institutions, which were established to protect and promote their human rights. The successful execution of these institutions’ mandate has a direct bearing on the quality of life of South African citizens, especially the poor, rural and marginalised. These state institutions were given the power (by the Constitution) to act on behalf of, especially these people, who do not have access to the courts to enforce their rights. The other tasks of these institutions are; (a) to restore the credibility of the state and the rule of law in the eyes of citizens and (b) to ensure that the state becomes more open and responsive to the needs of the South African people.

The Ad hoc Committee positioned its investigation within the historical context of a country that was still in its infancy among other democratic nations. The drive of the post-apartheid government was to transform the nation’s oppressive and secretive culture, in which the human rights of the black majority were disrespected to a culture in which human dignity and rights are celebrated. This led to the establishment of state institutions (the ‘protectors’) that had to protect constitutional democracy by monitoring the observance and implementation of a culture of human rights. The eleven institutions that were reviewed are independent of the government and (should) exercise their functions ‘without fear, favour or prejudice’. They are not accountable to executive, but to the citizens through the elected representatives in Parliament, because they had to report to Parliament, at least once per year.

Institutions that were reviewed

All the institutions that were reviewed, except the National Youth Commission were the products of the negotiations for a new constitution in a democratic South Africa and are therefore established by the Constitution. The other 10 state institutions are;

a) The Public Protector

b) The South African Human Rights Commission

c) The Commission for Gender Equality

d) The Auditor-General

e) The Electoral Commission

f) The Public Service Commission

g) The Financial and Fiscal Commission

h) The Pan South African Language Board

i) The Independent Communications Authority of South Africa

j) The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

RECOMMENDATIONS

1. Financial matters

Even though the Constitution states that these state institutions are independent, their funding mechanisms do not enhance this requirement. All these institutions’ budgets are located within the budget allocations of different state departments. The only exception is the Public Service Commission, which has its own budget vote. The state departments merely act as conduits for the transfer of funds, because these institutions submit their budget proposals to the national treasury. These institutions then accounted to Parliament and not the department.

The Ad hoc Committee found that this arrangement had a negative impact on the perceived independence of these state institutions, which have to support constitutional democracy. The committee then recommended that the budgets of these institutions should be located within Parliament’s budget, because (a) these institutions are accountable to Parliament and (b) it would enhance their independence from the executive.

I am however of the view that these institutions should also be independent of Parliament, because Parliament, being part of the wider public sector could also be the subject of their investigations, as it happened in my case. These institutions should also have their own budget votes, like the Public Service Commission. This would make them truly independent of the executive and Parliament, the two arms-of-government where politics and not ethics is the driving force.

2. Appointments and removals

The Ad hoc Committee acknowledged that the different mandates, powers and functions of these institutions meant that their composition and appointment procedures could not be identical, however these appointment procedures should be consistent with the principle of upholding and protecting the independence of these institutions.

The president and cabinet ministers currently appoint the commissioners and office bearers, as in the case of the Public Protector and Auditor-General. The Ad hoc Committee found that the president’s powers are non-discretionary, which meant that he/she could not refuse to make the appointments recommended by Parliament. The recommendation is preceded by a public process in which a parliamentary committee calls for nominations from the public to fill vacancies in the institutions. The nominees are then shortlisted and interviewed by the committee, where after a list of names are recommended to the president or the relevant minister to make the appointments.

The Ad hoc Committee noted that there were instances where the president did not appreciate the non-discretionary nature of his powers. For example in 2002, Parliament recommended eleven persons to be appointed to the South African Human Rights Commission, as per the appropriate legislation, but President Thabo Mbeki decided to appoint only five commissioners. The same blunder was repeated in 2009 when President Jacob Zuma only appointed six commissioners. He was incompetently assisted by Parliament who only recommended six people, even though the applicable legislation states; ‘there shall be a Human Rights Commission, which shall consist of a chairperson and 10 members’.

A second instance where the president did not appreciate the non-discretionary nature of his powers was with the appointment of the commissioners of the Commission for Gender Equality. Parliament made the recommendation in October 2006, but the appointment was only made in May 2007. The delay was blamed on the inability (!) of the presidency to determine the terms of office of full-time commissioners.

The Ad hoc Committee recommended that the president should make the appointments, but that his/her powers should remain non-discretionary. The ministers should not play any role in the appointments to these independent institutions.

The Ad hoc Committee found that the president appointed the chairpersons of certain institutions, while other institutions elected the chairperson from amongst themselves. The independence of the institutions could be ‘tarnished’ in the former situation, while the independence and legitimacy of the institution is enhanced in the later situation. The Ad hoc Committee identified another method to appoint the chairperson and that is by the parliamentary committee charged with filling the vacancies. The Ad hoc Committee then recommended that legislation should guide the process, whether the institution itself or the relevant parliamentary committee appoint the chairperson and deputy chairperson.

The current status if the Asmal report

The report has gathered dust, for the most part, on some shelf in Parliament. When Prof Asmal died in June 2011, almost four years after the tabling of the report in Parliament, there was no movement on the findings or recommendations. A unit was later established in the Office of the Speaker that would deal with Chapter 9 bodies, as was recommended by the report. Whether it would be a mere liaison-office or an office of substance has to be seen. However, there was no movement on the other matters, except the appointment of the SAHRC’s commissioners in 2014, in terms of a new Act.

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Civil Society Advocacy Programme (CSAP)

Purpose and objectives

The CSAP was established on 30 October 2007, with the aim to develop a code of good practice to guide the working relationship between the chapter 9 bodies (C9s) and Parliament. This would address the concerns about the independence and impartiality of these independent constitutional bodies. They are unique in that they are independent of, but accountable to Parliament.

Some commentators are of the view that C9s should not advocate or lobby Parliament, but should support Parliament. Others believe that the C9s complement Parliament’s oversight role, because they have wide constitutional mandate and independent status of these bodies, as well as the fact that Parliament itself can be investigated by the C9s, for example the Office of the Public Protector (OPP) and the South African Human Rights Commission (SAHRC).

A constitutional court case (Van Rooyen and Others vs State) in 2002 provided the general test for judging the independence for organs of state. The determining factor identified by the court was whether from the objective viewpoint of a reasonable and informed person, there will be a perception that the institution enjoys the essential conditions of independence [Van Rooyen and Others v S and Others 2002 (8) BCLR 810 (CC)]. In other words, an institution must not only be independent. It must also be seen to be independent.

The constitutional court identified the following requirements for ‘independence’;

a) financial independence;

b) institutional independence, in particular control over its administrative decisions;

c) appointment procedures and security of tenure of appointed office bearers.

Working relationship: Parliament & Chapter 9 Bodies

The C9s and the executive are accountable to Parliament, but Parliament’s oversight over these two institutions is different – Parliament may direct the work of the executive, which uses public money to realise the rights of citizens. It can however not direct the work of the C9s, which stands in a complementary or supportive role to Parliament and has constitutionally guaranteed independence from Parliament.

The working relationship should take cognizance of the fact that the C9s should execute its duties in an independent and impartial manner.

Parliament’s oversight role is however limited by the dynamics of party politics, because it is a political or partisan institution. It has a close relationship with the executive (another partisan institution), because it elects the head of the executive (i.e. the president of the country) and the cabinet ministers are members of Parliament. In addition, a too close working relationship should not