The South African Human Rights Commission is not without its faults: It is not always consistent in the way it tackles human rights issues and because of resource constraints and occasional ineffectual management it sometimes fails to deal speedily and effectively with complaints by ordinary citizens about the infringement of their rights. However, compared to the other institutions set up in terms of the Constitution to promote and protect human rights, it has done sterling work.
Because the Chairperson and all but one of the present Commissioners must retire next month, Parliament has now begun the process of appointing new Commissioners. And there are worrying signs that the ANC majority in Parliament will deal a fatal blow to the Human Rights Commission by “deploying” mediocre ANC party-hacks with little human rights experience to that important body, a body that can play a huge role in helping ordinary (often poor and marginalised) citizens to gain access to justice to help them enforce their rights.
The Constitution states that the Human Rights Commission is independent and that it must act impartially and must exercise its (considerable) powers and perform their functions without fear, favour or prejudice. Parliament has a constitutional duty to assist and protect the Human Rights Commission and to ensure its independence, impartiality, dignity and effectiveness.
An ad hoc committee of Parliament has drawn up a preliminary shortlist of candidates to be interviewed. The list of names nominated by the ANC is, to say the least, underwhelming and troubling.
It includes the names of Benjamin Ntuli (a former ANC MP who failed to be re-elected to Parliament in April); Andre Gaum (a guy who tried to censor the student newspaper at Stellenbosch when he was on the SRC, is an old National Party politician who jumped ship to the ANC and then became deputy Minister of Education, but also failed to make it back to Parliament in April); Mochubela Jacob Seekoe (a former South African Ambassador to Russia with a Chemistry degree from Moscow); Maxwell Moss (a former ANC MP who failed to make it back to Parliament in April) ; Lindiwe Mokate (a former chief executive of the Human Rights Commission who resigned after a disastrous and highly controversial stint there); Lawrence Mushwana (the Public Protector who has shown a spectacular lack of independence and whose Oilgate report was set aside by the Gauteng High Court recently because it failed properly to investigate the complaint implicating the ANC); Wallace Mgoqi (former city manager of Cape Town implicated in several dodgy decisions taken during his tenure there); and Ephraim Mohlankane (who has such a stellar career that a Google search reveals a full zero entries under his name).
What makes this list so deeply depressing is that far more credible and worthy candidates actually applied to become Commissioners.
The list of credible candidates include Andile Mngxitama (a writer and publisher of “Frank Talk”, the latest edition arguing that blacks cannot be racist); Prof Jeremy Sarkin (who used to be a Senior Professor in Public Law at the University of Western Cape and is a member of the UN working group on enforced and involluntary disappearances); Adv Tseliso Thipanyane (current CEO of the Human Rights Commission and former Public Law academic); Dr Janet Cherry (who was detained for 342 days by the apartheid security police, worked for the Truth and Reconciliation Commission and teaches sociology); Dr Bukelwa Hans (former South African Ambassador to Finland); Bishop Paul Verryn (who opened the doors of the Central Methodist Church in Johannesburg to refugees and has worked tirelessly for the poor and the marhinalised); Hanif Valley (lawyer for the Truth Commission and published author); Nozizwe Madladla-Routledge (former deputy minister of Health and general independent spirit); Prof Hussein Solomon (lecturer in political science); and Pritima Osman (who has a long history of doing human rights based NGO work).
(To be fair, the nominations supported by opposition parties also contain the names of a few has-been politicians, but unlike the ANC list, the majority of the individuals nominated by opposition parties have shown at least some knowledge of and commitment to human rights.)
Of course, the mere fact that an individual is a member of the ANC (or any other political party for that matter) should not disqualify that person from a job on the Human Rights Commission. Justice Albie Sachs was a prominent member of the ANC before elevation to the Constitutional Court and he turned out to be a brilliant judge who handed down some of the most progressive judgments of the court.
The question is whether there is a reasonable apprehension that the relevant candidate will be biased and will not act without fear, favour or prejudice. Some of the ANC candidates might well pass this test, but the fact that a large number of failed ANC politicians appear on that party’s list for appointment to the Commission, suggests that the Commission is in danger of becoming no more than a dumping ground for party hacks. This has the potentially fatally to undermine the independence and impartiality of the Commission.
As the Asmal Report made clear, an invigorated and well resourced Human Rights Commission could play a major role in addressing the deeply troubling fact that most South Africans (especially poor and marginalised black South Africans) do not have access to lawyers and cannot enforce their rights and the obligations of others towards them in courts. If a majority of has-been politicians are appointed to the Commission, the Commission will not be able to fulfill this role and all this talk about the transformation of the legal system to provide better access to justice for all South Africans would have been no more than empty rhetoric.
I sincerely hope that cooler heads will prevail and that the ANC will not use its majority in Parliament to nominate candidates who – through their words and actions – have not demonstrated a deep commitment to human rights. The Human Rights Commission can really make a difference. Even if Parliament nominates only individuals who are generally sympathetic to the ANC, there are enough talented individuals on the list to give the Commission at least a shot at being relevant.
However, if the ANC pushes through its current list, the Human Rights Commission will almost certainly become a toothless tiger and the constituency most in need of its services – the poor and the marginalised – would have been sold down the river once again.
The approach,
With respect Prof, you seem to be surprised that politicians are thinking likewise. I think your approach amounts to a challenge of logic and common sense. This is because in my view, it would be shocking than not, to see the ANC appointing the latter list you displayed to the exclusion of their preferred candidates.
I think instead of putting blame on the party, we should do so on the principle of democracy, for this is one of its disadvantages.
As someone who (correctly) comments negatively on the unusual dropping of corruption charges, I think it would be equally unusual for you to be seen being surprised of the ‘incorrect’ nominations of commissioners.
You rightly indicated a very important progressive character over my favourite, (Justice Albie Sachs), why don’t/ can’t you use the same eye to see the new ANC preferred candidates?
The other matter of concern could be the constitution itself. In my view, it must be amended and give the powers to appoint such (human rights) commissioners, Judges, NDPP, to the (non political) body like the JSC.
I am convinced that no matter how powerful an individual is, to the eyes of the politician, that individual will remain not qualified enough as compared to their comrades.
Sebjeni, a very interesting post. I do have a question for you though: can we really label the JSC a non-political body? I think that there are two points which militate against the view that it is non-political.
The first is that it comprises many politicians. And they could not reasonably be expected to suspend political agenda when attending to their functions.
The second point is probably fairly contentious. I think that some the JSC members (more specifically one of them) that conducted the recent interviews of judges plainly subscribed to a very narrow -and dubious – conception of transformation that may well have had political overtones.
If this second (and admittedly more contentious) point passes muster, then given the cumulative effect of the two points, can we really call the JSC a non-political body? I do not think so.
While we’re waiting for the decision of that same political body on the CC / HLOPE – complaint, and the informed speculation that the charges will be dropped and/or be found unsubstantiated, we might as well ask : “R.I.P. Constitutional Court?”.
Or should it be :”R.I.P. credibility of the CC?”.
Andre Gaum was a horrible racist at Stellenbosch and his switched allegiance was for purely power seeking reasons. I can’t believe his name is on the list.
“… Or should it be :”R.I.P. credibility of the CC?”.”
The petition in support of the CC has also hit the bucket, which isn’t surprising, because it was based on a concerted attack on JP Hlophe. It will probably never come to light that the petition originally addressed him by name. Guess the CC and its so-called supporters aren’t as blameless and virtuous as they make out to be.
I wonder if the strategist that has assisted Jacob Zuma and John Hlophe during their woes available for hire …. He is certainly brilliant!!! i could use a consultation or two to pick his/her brain …
Whoever they are, they must serve first, the Constitution of the Republic of South Africa and ensure observance of the Rule of Law.
Secondly, serve those who the Constitution says you should serve – the vulnerable.
Thirdly, the nation at large.
If we can protect the foundations then we can help the people when they need help. We can halp them fight what battles they must to get their just entitlements.
Is this possible though?
nkululeko // Aug 25, 2009 at 3:59 pm
“Is this possible though?”
Anything is possible, as long as south africa can keep producing people like yourself, who will challenge and will stand up for justice, why not?
“Is this possible though?”
Not when it is becoming more and more evident that the Court you referring to has abused its position to victimize a fellow judge who they felt is a threat to them. The failure of the JSC to promptly announce their findings about the Hlophe case is surely just a feeble attempt to give the CC its last moments of genuine credibility. This doesn’t sound like an public office meant to serve and protect but something more sinister and sickening. Shame on them!
Chris, thanks for a positive answer. I think that we, the electorate, and the politicians (even those I think are not worthy of life) should always fight for the commissioners who WILL do their best to ensure the protection of Human Rights in SA.
Where the ANC, or any other party, manipulates its position we will be hurt real bad, real fast.
Harold has a bone to pick. He does not dare mention the court’s good work nor does he mantion the JSC’s good work. The criticism is so broad that it can easily leave us all tarnished with the same brush. We should have powers of restraint before we approach the courts for a solution. Maybe thats a maturity we need to develop first.
I’m sure you’ve heard the expression “As dead flies give perfume a bad smell, so a little folly outweighs wisdom and honor.”
You have certainly given the best advice ever on this blog …
Mind boggling points Pierre! Well, over the last two years, the HRC has been under fire from most vocal sections of our society, and its credibility has seriously been compromised, as a result.
Co-incidentally, the ConCourt’s reputation has equally been tainted by the unfortunate events that happened last year involving one Judge President Hlophe. Sadly, these are the sorts of instituations that have been internationally renowned for their sterling and leading work in the protection of human rights.
I do hope that the second decade of our demoncracy is not going to be marked by the decline in stature of these noble institutions whose relevence in our society remain as intact as it was when they were first established.
There is a need for a renewed sense of purpose and drive in these institutions. History elsewhere explains this sudden decline in the status of powerful institutions like these. This happens in the name of the maturity of democracy. I suppose it is also brought to bear by the fact that we are moving as far away from the point of the collapse of apartheid as possible. It is now business as usual in the country. No more apartheid government to blame and to ‘gang up against’ but its ugly and depressing legacy.
Oh I shall stop right here. HRCs have as much as role, if not more, as they did have in the past.
Leigh,
You and I have the biggest challenge ahead of us, namely, to combine ideas and come up with a way in which we can help South Africa to have an independent body.
It is in my view an unwarranted task for us to discuss a trivialities of whether JSC is a political body or otherwise. In any event, in the light of recent allegations on JP Hlophe, as well as the JSC itself, it is inconceivable to suggest that there could ever be a totally independent non political body.
My idea is as follows:
Imagine if we are to have a body that has the Judge as the Chairperson, two senior advocates, as well as two members from each political party.
I am convinced that this kind of composition will substantially lower the nomination of an individual based on their robben island record (without relevant skills). Until then, we will continue having political parties appointing their people so that charges may be just withdrawn or a competent principal may be wrongfully ordered to resign, a jail term of 15 years turned into 3 months and all these surprises that we see in our society.
I continue to say that it is not a reasonable thinking to expect politicians to have a less political thought.
Sebjeni, thank you for your response. I would read two of the chief messages in your last post as follows: first, that the non-political appointments should have professional legal experience.
And secondly, that the commission should comprise (in addition to the apointments with legal experience) commissioners from opposing political parties. I would assume that the rationale of this second message is that having opposing parties work together might effectively compel the commissioners from the opposing political parties to bring their respective ‘A’ games.
I do like how thoughtful your suggestions appear to be. I also like the idea of a small measure of healthy political tension which could induce the commissioners from political parties to make sufficiently earnest efforts.
But I do have two slight concerns regarding your suggestion. The first is that you seem to rule out people who are (a) not affiliated with any political party and (b) who have no professional legal experience.
With respect, and on the assumption that I have understood you correctly, I think that there are many people who do not fall into the categories which you mention but who could nonetheless make substantial contributions. The Professor proffers examples of such people in his piece.
I shall apologise to you for my second concern. I shall do so because it runs counter to something which I said earlier. That is, earlier I said that I think a bit of political tension could inspire the commissioners to produce better efforts. But my concern here is also that such tension could serve as something of an unnecessary diversion.
So while I do not mean to have my cake and eat it too – which, by the by, is a turn of phrase I still find to be fairly peculiar – I do think that political tension in the HRC, while potentially beneficial in one respect, could also engender some avoidable problems.
Sebjeni, I apologise. I had a bit of a long night and it seems I am still waking up
As a body that would enjoy the capacity to make appointments, your suggestion certainly seems to be headed in the right direction. That is, if the advocates had some experience in constitutional litigation (I will assume that the judge would), then those people would probably have sufficient awraeness of constitutional issues.
And the politicians from opposing parties would serve as checks on one another.
Prof,
Assuming that my suggestion on the composition of the appointing body is acceptable,
Is there a way in which you can facilitate this message for it to get to the relevant portfolio committee in parliament?
There will never be a totally independent body and the only route to be the decision maker is to win elections.
These small parties can make all the noise they want and you can have petitions but that will not help.
The only option is to give ANC the rope to hang itself and campaign against it at the polls. This tactic of trying to control strategic instruments in our govt is just delaying the obvious.The political victory must translate to other areas of our lives Judiciary, Economy, Universties, Culture etc will all suffer the same fate.
I am sorry to the bearer of bad news but that is the truth.
Gwebecimele, I agree in principle: Many of those outside of the majoritarian process, NGO’s the Judiciary, civil society groups etc, do harbour unrealistic, and sometimes devious, hopes of circumventing electoral outcomes.
That being said, note that the judiciary can in some circumstances be an effective countermajoritarian force. See, e.g., the issue of abortion, both in the U.S. and in SA; in both cases, the judiciary has at times been effective in preserving a “right to choose” that a referendum may well have rejected.
Also, electorally insignificant groups like big business are able to exert influence on government well in excess of the votes the corporates will attract at the ballot box. If business lobbying can sometimes manipulate government to its will, why should anti-business and human right groups not similarly organise to try and influence the government outside of the formal democtratic process?
That’s a terribly crude form of democracy you describe there, Gwebecimele. Is that the best we can hope for, an extreme version of “The winner takes all”?
I thought the whole idea of a constitution and bill of rights was to agree on basic rules and independent institutions to enforce them, and ensure that winners of elections stuck to governing and not jsut looking after their own interests?
The alternative, I fear, is to make winning elections so important that almost any means would be acceptable.
Michael, I do not mean to pre-empt any answer which Gwebecimele may proffer in response to your question. But I would like to take a stab at it if I may.
I would offer two reasons as to why anti-business and human rights groups should speak up. The first reason addresses your question directly inasmuch as it speaks to why I think such groups should aim at influencing government outside of the formal democratic process.
The second digresses somewhat in that it goes to why such groups ought to venture their views even if they stand little chance at actually influencing government.
As to the first reason: the groups to which you refer should try to influence government because if they offered there views on certain topics, government would have the benefit of being able to consider competing perspectives when taking decisions. This may well enable government to make better; more nuanced choices.
To turn to the second reason: anti-business and human rights groups should speak up simply because they may be right on whatever score happens to be at issue. I am aware that this is hardly a sophisticated reason. But I would like to think that voicing the most ably substantiated view is, of itself, a sound reason for making sentiments known.
Leigh, your analysis enriches the case for pluralist democracy.
Of course, the Marxist response is that the input of independent organs and civil society is always, in the aggregate, skewed in favour of the owners of the means of production. Hence, the interests of capital ultimately trump democracy under liberalism..
Problem is that history suggests that the alternative — a centralising non-pluralist state capable of taming private power — tends to slide towards totalitarianism unless independent civil society instiutions put the brakes on.
And this is precisley the point where the input of profound political thinkers like Mr Malema would be so valuable. Pity he is so busy!
Yes it is indeed a great shame that Mr Malema is so stingy with his wisdom – especially now when so many would appreciate his guidance. I mean, how to ensure that the participation of big business does not cause capitalist interests to prevail over democracy? Only Mr Malema’s piercing insights could help us with that one.