Address by Acting Public Protector Adv. Kholeka Gcaleka during a webinar on the commemoration of Human Rights Month on Thursday, March 25, 2021.

Address by Acting Public Protector Adv. Kholeka Gcaleka during a webinar on the commemoration of Human Rights Month on Thursday, March 25, 2021.

 

Programme Director and Chief Executive Officer of the Public Protector SA, Ms. Thandi Sibanyoni;

Chairperson of the South African Human Rights Commission, Adv. Bongani Majola;

Executive Director of Access Chapter 2, Ms. Mmapaseka Letsike;

Chief Operations Officer of the Public Protector SA, Mr. Lucky Mohalaba;

Executive Manager of Complaints and Stakeholder Management at the Public Protector SA, Ms. Nthoriseng Motsitsi;

Distinguished guests;

Ladies and gentlemen;

 

Good morning,

Thank you so much Adv. Majola for taking time off your packed schedule to join us so that, together as Chapter 9 institutions, we may hold a mirror to ourselves as in this peer review-type dialogue which comes against the backdrop of Human Rights Day, which we commemorated a few days back. 

Since 1994, we have commemorated this day annually in remembrance of scores of peaceful anti-pass laws protesters and mourners, who paid the ultimate human sacrifice on that fateful day in Sharpville in 1960 and in Langa in 1985 respectively at the hands of apartheid police.

In paying homage to these martyrs of the struggle for an equal and inclusive society, we decided to hold this webinar and introspect as Chapter 9 institutions, interrogating the extent to which we can play a more significant role in protecting human rights.  

Our Constitution is admired by many nations across the world. For instance, as Egyptians were preparing to write a new Constitution in the aftermath of the Arab Spring, a leading US jurist, Ruth Bader Ginsburg, who was on a visit to the North African country advised the drafters to look down south to South Africa as a benchmark. 

Asked in post-revolutionary Egypt in 2012 if Cairo should use other countries’ Constitutions as a model in the process of crafting theirs, Justice Ginsburg (of the US Supreme Court) reportedly said the following:

“I would not look to the [United States] Constitution if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary… It really is, I think, a great piece of work that was done.”

One of the aspects of our Constitution which has earned our country legions of admirers across the globe is Chapter 2, in which the Bill of Rights is enshrined. As the cliché goes, this Bill of Rights is the cornerstone of our democracy. This means our entire constitutional order is anchored on the Bill of Rights. 

This Bill of Rights points to the transformative orientation of our Constitution. It is an acknowledgment of the dark past which we are all products of and the fact that we have made a clean break with that past to become a new, inclusive society, where improper discrimination has no place. 

In that chapter of the Constitution, you will find the right to equality; human dignity; life; privacy; freedom of religion; belief and opinion; freedom of expression; the right to assembly, demonstration, picket and petition, freedom of association and political rights such as the right to vote, form a political party and stand for public office.

Also found in this part of the Constitution are freedom of movement and residence; freedom of trade; occupation and profession; property rights; right to housing; education; access to information; access to the courts; language and culture; just administrative action; and the right to health care, food, water and social security. There are also children’s rights. 

This list is not exhaustive. But it confirms in no uncertain terms the transformative posture of our Constitution because all of these rights seek to address some of the shortcomings of the dispensations that preceded the democratic order.

But that is not all there is to our Constitution.  Consistent with the anatomy of a traditional state, the Constitution establishes the three arms of government — the legislature, the judiciary and the executive.

The legislature makes laws and appropriates moneys needed to run the affairs of government, the judiciary interprets the Constitution and the law and applies the interpretations while the executive implements public policy based on the laws, using the funds appropriated by the legislature. 

Although, as checks and balances, these arms keep each other in check, none of them should encroach into the other‘s exclusive terrain. This principle is known as the “trias politica” or “separation of powers“.

In addition to that trio of government arms, our Constitution introduces an innovation and another layer of accountability into the classical architecture of the state. This innovation comes in the form of the independent constitutional institutions, which are affectionately known as Chapter 9 institutions — owing to their establishment under the ninth chapter of the document.

There are seven of them, namely the Public Protector, the South African Human Rights Commission (SAHRC), the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission), the Commission for Gender Equality (CGE), the Auditor-General (AG), the Electoral Commission (IEC) and Independent Communication Authority of South Africa (ICASA). The Constitution deals with all these from section 181 to 194.  

Jointly, they carry the mammoth and overarching task of strengthening our constitutional democracy. Each of them has a unique way of contributing to this higher purpose. In order to carry out their respective mandates effectively, all these independent constitutional institutions enjoy the following constitutional safeguards: 

a) They are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.

b) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.

c) No person or organ of state may interfere with the functioning of these institutions.

I pause here briefly to underline the fact that these protections are virtually, word-for-word, the same as those that are applicable to the judiciary. See section 165 of the Constitution, under Chapter 8.

Due to the fact that these institutions are subject only to the Constitution and the law, administratively they account to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least annually.

They do this through, among other things, the tabling and presentation of their Strategic Plans, Annual Performance Plans and Annual Reports, which include audited financial statements, to designated parliamentary Portfolio Committees.

What we glean from this background is that, over and above the legislature, the judiciary and the executive, the independent constitutional institutions or Chapter 9 institutions have a pivotal role to play in the implementation, monitoring and evaluation of compliance with the Bill of Rights. 

This means, should there be a feeling that the country is lacking when it comes to respect for human rights, as Chapter 9 institutions, we should shoulder some of the blame.

Granted, the legislature, the judiciary and the executive must explain but we too must tell the people of South Africa what we as, an additional accountability mechanism, did about whatever lapses that would have led to human rights violations. 

In the lead up to and post March 21, commentators and thought leaders have had a lot to say about the post 1994 state’s track record where the respect for human rights is concerned.

A lot of what has been said in regrettably unflattering and paints a sad portrait of a country that emerged out of apartheid as a beacon of hope and an epitome of a conquering human spirit but has since seemingly floundered in some respects. 

In its 22 March 2021 editorial comment, the Sunday Times Daily noted: “Our human rights track record — then and now — is dismal. This, despite [South Africa’s] Constitution being hailed as one of the finest in the world. Yet South Africans every day experience an infringement of their rights in one form or another.”

The paper referred to Amnesty International's 2019 report on South Africa, in which the global human rights watchdog shone a spotlight on the “excessive use of force by the police, gender-based violence and threats to the right to freedom of expression ... refugees and migrants’ rights remaining unprotected as xenophobic violence was swept under the carpet ... women and girls still not all enjoying access to sexual and reproductive health services and information [and a] lack of access to water.”

In addition, the paper reminded us of last week’s news headlines, including the story of an 11-year-old Eastern Cape boy who was allegedly lowered into a pit latrine with a rope by his school principal apparently to find the principal’s smartphone, which seemingly fell down the shaft of excrement.

This webinar also comes in the wake of a tragic incident in which a bystander, Mthokozisi Ntumba, was allegedly shot and killed by police on the sidelines of a Witwatersrand University students’ protest. He was laid to rest in an emotional send off this past weekend. 

The protest was in recognition of the plight of impoverished students with historical debt. The arrear payments are allegedly being used by university authorities to keep such students out of lecture halls. The protest has found resonance with students across the land as the issues, which include alleged maladministration by the National Student Financial Aid Scheme (NSFAS) appear to be commonplace. 

As some of you would know, the Public Protector South Africa and the SAHRC are currently on a joint-operation as mediators to bring all role players in the debacle to the table with a view to finding long lasting solution to this problem which has established itself as an annual occurrence in the country’s academic calendar. 

The operation has been in the planning since late last year. It kicked-off last week. We have already dialogued with management, the Student Representative Council and the local NSFAS office at the University of Venda in Thohoyandou, Limpopo and the Tshwane University of Technology campus in Nelspruit, Mpumalanga. 

We also held fruitful talks with the Minister of Higher Education, Innovation and Technology, Mr. Blade Nzimande, and the leadership of the South African Union of Students. The programme continues in April. 

Some such as Political Analyst, Prof. Lesiba Tefo, argue that while the Bill of Rights is aspirational, not enough is being done to try to the extent possible to live up to those aspirations. 

This brings me to the theme of this engagement: “The convergent role of Chapter 9 institutions in the protection of human rights.”

There is no doubt that we know and understand our respective constitutional mandates as Chapter 9 institutions just as little or no doubt exists that we have made inroads in the execution of our mandates over the years. 

However, there is always room for improvement. One of the key questions to pose to this esteemed panel is how can we as Chapter 9 institutions be more proactive and therefore preventative rather than arriving on the proverbial scene post de facto when the damage is already done? 

Could we not have acted faster, for instance, to address the issue of students as a way of preventing the events of the last few weeks, especially because he have been receiving and dealing with individual complaints which pointed to deep systemic problems within the higher education sector? Could we not have foreseen this ticking time bomb for what it is and took precautionary measures? 

What about the plight of other vulnerable groups such as the LGBTQI+ community? Are we waiting for disaster to strike before we do something about the violent discrimination that they already have to contend with? 

Then there are women and children; the disabled; and the religious, linguistic and cultural communities, whose plight also came into sharp focus following the recent untimely passing of Isilo Samabandla Onke, His Majesty King Goodwill Zwelithini kaBhekuzulu. 

Most in not all of us as Chapter 9 institutions have the power to intervene on own initiative. This creates an opportunity to proactively look into systemic problems as opposed to sitting back and waiting for individual complaints. 

To what extent have we exploited those powers to cushion people from potential human right violations and above all else, live up to our shared purpose of strengthening constitutional democracy?

These are, for me, some of the key questions that we ought to deal with in this session. It is a good thing that we discuss on the eve of a new financial year. Perhaps the outcomes of this dialogue can inform the approaches we adopt going into the 2021/22 financial year. 

Importantly, I would like to hear from Access Chapter 2. Often as state institutions, we make the grave mistake of speaking amongst ourselves about issues affecting people without talking to those people. 

More than ever before we need to always encourage the participation of those with lived experiences of the social ills we exist to cure so we can get it from the horse’s mouth and obtain their input as we go about sparking policy and system reforms. 

I look forward to impactful discussions, which will hopefully alter the way we have been doing things as Chapter 9 institutions. This is important because we have a huge responsibility not only to strengthen constitutional democracy but also to help our country meet the Sustainable Development Goals, all of which already find expression in and resonate with our Bill of Rights. 

 

Thank you. 

 

Adv. Kholeka Gcaleka

Acting Public Protector

Republic of South Africa