People Opposing Women Abuse (POWA) Comments – Review of State Institutions Supporting Constitutional Democracy

(Extract and edited… full submission on POWA’s website)

Prof A K Asmal

Chairperson
Ad hoc Committee on Review of Chapter 9 and Associated Institutions
Parliament of South Africa

Wendy Isaack

POWA welcomes Parliament invitation for civil society organisations to participate in this important process, which will inevitably impact on established democratic processes and systems.

The submission is premised on primarily two principles. Firstly, POWA’s mandate is to work for the complete eradication of violence against women in our society and to create a society that does not tolerate violence against women and where women are powerful, self-reliant, equal and respected. Secondly, we recognise the excessive levels of violations of the human rights of women in our society generally, the multiplicity of forms of violence against women as well as the fact that this violence frequently occurs at the intersection of different types of discrimination.

Using an indivisibility of human rights approach, the submission outlines observations and recommendations on the current and future work of only two critical institutions which we believe impacts directly on our constituency: the South African Human Rights Commission and the Commission on Gender Equality. They were established respectively in terms of section 184 and section 187 of the Constitution, Act 108 of 1996 and in our constructive and critical commentary we will reflects on the 1996 Constitution text, the relevant enabling items of legislation as well as international law minimum standards and principles dealing with National Human Rights Institutions. In addition, POWA’s role in the critical events around the Jacob Zuma Rape trial that necessitated engagement with both Commissions has demonstrated both challenges and opportunities for successful engagement in the future.

B: Summary of Findings and Recommendations

1. Key Findings

1.1.The Human Rights Commission Act 54 of 1994, hereinafter HRC Act makes provision for the number and period of appointment of Commissioners. The Commission on Gender Equality Act, 39 of 1996 also makes provision for the number and period of appointment of Commissioners. [1] For both Commissions, this has implications for the actual execution of the mandates and for the financial resources expended for the fulfilment of these mandates. The challenge may be that where there are more Commissioners appointed for a shorter period of time, such as in the case of the CGE, there is a larger turnover and expenditure in remuneration without the appropriate and justifiable output and deliverables since there is a lack of continuity and consistency for the Commissioners.

1.2.In respect of governance, an example is the CSAP collaboration which is not functioning appropriately and/or tremendously challenged. The total budget for a 3 year period: June 2005 – June 2007 was 30 million. By June 2006 expenditure was only 8.34% of the total budget. The non- allocated balance by Sept 2006 was to be sent back to European Union (according to EU regulations by December 2006).

Breakdown

9 million + for community support 0% expenditure

8.1 million for CSO Support 0% expenditure

C9’s support of 7 million all spent but 30,000

Management and coordination expenditure of CSAP 44% expenditure

Most of the time was spent setting up the CSAP structure and there was no benefit to the communities of Civil Society Organisations and Chapter 9’s received new staff and resources for operations This has clearly demonstrated lack of prioritization, lack of capacity oversight and non-collaboration with Civil Society organisations or communities.

1.3. A review of the budgets, expenditure and annual reports (those which were available online) of the CGE, it was apparent that there is excessively high expenditure on administrative operations and remuneration when compared with the budget allocated for conducting programmatic work.

1.4.For both Commissions, with the exception of the Chairperson and a few Programme staff members of the Human Rights Commission, we have found through our engagement – or lack of space provided for same, that current staff composition does not necessarily lend credibility, strategic leadership and institutional vision. A number of key questions and issues warrant specific mention: Does the CGE lack a feminist discourse and human rights approach to its work? For both Commissions, is there sufficient and clear understanding of the interdependence and interrelatedness of all human rights in the execution of mandates. In particular, does the Human Rights Commission consider incidents of violence against women to be also a human rights issue and not always necessitating referral to the CGE?

1.5. The Commissions have constitutional and legal legitimacy; the urgent enquiry is whether they have social legitimacy. In some instances we have found that they do not have sufficient social recognition and therefore do not necessarily contribute to the necessary societal transformation.

1.6. On relationships with non-governmental and community based organisations, section 6 of the CGE Act and section 5 of the HRC Act provide, respectively, for the establishment of one or more committees. This provision was utilised successfully by the CGE when Dr. Sheila Meinjies established a section 6 committee for the lesbian and gay sector in 2003/4. In addition ssection 11 of the CGE Act mandates interaction with civil society organisations to further the objects of the Commission.

1.7. On independence and impartiality section 4 of the HRC Act and section 10 of the CGE Act reiterates section 184 of Constitution adding prohibition on engaging in matters/conducting investigations where he/she has pecuniary interests. For both Commissions, all organs of State should afford them assistance for the protection of their impartiality, independence and dignity. However, it must be established whether there have been situations where their independence and impartiality from government and donors and civil society organisations has been compromised.

1.8. On relationships and co-ordination between the Institutions the HRC Act in section 7 provides for the maintenance of close liaisons to foster common practices and policies to promote cooperation. Section 11 of the CGE Act provides that the CGE may refer matters to HRC and PP, as far as practical, maintain close liaisons with other institutions in order to foster common policies and practices, to promote co-operation in relation to the handling of complaints in cases of overlapping jurisdiction. Other than the research and advocacy work on Virginity Testing, there is insufficient evidence of close co-operation between the various institutions. In this regard, we reiterate the indivisibility and interrelatedness of human rights as well as the notion that women’s rights are human rights.

1.9. Finally, on investigation of complaints, it is POWA’s position that it is an inappropriate use of human and financial resources of both Commissions to investigate complaints in isolation. While we recognise the relevance and necessity of this mandate, it is however important that complaints investigated are then used strategically such as in developing thematic areas for programmatic work which also will contribute to advocacy in law and policy reform.

1. Recommendations

2.1. An appropriate amendment of the relevant items of legislation to ensure that the same number of Commissioners are appointed for both the CGE and HRC to serve for the same period of time which will allow continuity and consistency in the fulfilment of mandates.

2.2. It is critical that systems are put in place to ensure regular financial scrutiny and therefore accountability.

2.3. Both Commissions must without delay act in accordance with their legislative mandates of developing and conducting information programmes to foster understanding of their work, their roles and activities as well as on the promotion of human rights. This will facilitate their social legitimacy.

2.4. In accordance with their mandates (section 5 HRC Act and section 6 and 11 CGE Act), the Commissions must proactively build relationships with NGOs and CBOs – particularly in areas lacking service delivery. NGOs and CBOs are a valuable source of information and can play a critical role in identifying thematic issues for intervention which will contribute to law and policy reform. In addition, NGOs and CBOs are in a position to ensure the effectiveness of the Commissions, testing their effectiveness and liaising with them over certain interventions while also critiquing their performance.

2.5. The role and functions of the Commissions should be publicised especially amongst its own staff to facilitate understanding of mandates.

2.6. On matters of public interest we must see more visible co-operation between the various institutions as per their respective mandates.

2.7. On powers and functions of the CGE and HRC, we note that there are numerous challenges and obstacles in executing their monitoring and assessment duties. It must be ascertained what activities have they engaged in to overcome these challenges? Civil society organisations have a critical role to play in this- empirical data to hold government accountable is often in the possession of NGOs and CBOs? Commissions must provide information relating to successful interventions with civil society. In respect of research and public awareness programmes, NGOs often have the expertise and can make a contribution – have these expertise been utilised? What role have they played in ensuring the state’s compliance with international law norms?

2.8. The HRC Act and the CGE Act make provision for the submission of quarterly and annual reports respectively to Parliament on the observance of human rights and on their activities in a given reporting period. Space and opportunity should be created for the engagement with shadow reports from civil society organisations on the activities of the Commissions and most importantly on the State’s accountability to protect and promote human rights and the observance thereof.

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[1] Human Rights Commission Act of 1994 section 3: Not less than five members full time appointed for a period not exceeding seven years; and Commission on Gender Equality Act, section 3: A Chairperson and no fewer than seven and no more than eleven members with the necessary knowledge or experience with regard to matters connected with the objects of the Commission appointed full time or part time and shall hold office for a fixed term not exceeding 5 years.