State institutions supporting constitutional democracy
Chapter 9 of the Constitution establishes a number of state institutions tasked with supporting our constitutional democracy. The task of these institutions is to promote and protect those rights within the Bill of Rights which fall within their particular area. These bodies are autonomous and other state departments are expressly charged with assisting and protecting them to ensure their independence, impartiality, dignity and effectiveness.
These are the state institutions established by Chapter 9 to support our constitutional democracy:
The Public Protector is:
- appointed for a non-renewable period of seven years;
- accessible to all persons and communities; and
- acting as an official ombud.
The functions of his/her office are:
- to keep an eye on state affairs, especially where maladministration is alleged; and
- to report instances of misconduct and to do something about it such as investigating, reporting and taking appropriate remedial action.
Reports by the Public Protector are public documents, unless exceptional circumstances demand their secrecy.
The South African Human Rights Commission is charged with:
- Establishing a culture of human rights and monitoring the fulfilment of rights by the government;
- Investigating and reporting on the observance of human rights;
- Taking steps to secure appropriate measures to redress human rights violations; and
- Reviewing the annual reports of relevant government departments which detail what they have to fulfil the rights in the Bill of Rights – with particular regard to housing, healthcare, food, water, social security, education, and the environment.
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities must:
- Promote respect for the rights of the various cultural, religious and language groups in the country;
- Investigate and advise on relevant issues; and
- Report violations to the South African Human Rights Commission for further action.
The Commission for Gender Equality is tasked with:
- Developing respect for gender equality in South Africa; and
- Monitoring, researching, educating, lobbying, advising and reporting on issues related to the attainment and protection of gender equality.
The Auditor-General, who must be appointed for a non-renewable period of 5-10 years, has to:
- Monitor government spending in all three spheres of government; and
- Audit the accounts of any institution funded from the national revenue fund or a provincial revenue fund or a municipality. These reports have to be made public.
The Electoral Commission must have at least three people whose appointment and term of office is prescribed by national legislation. They must:
Manage elections at national, provincial and municipal level; and ensure that elections are free and fair.
The Independent Authority to regulate Broadcasting must:
- Establish an independent authority to regulate broadcasting in the public’s interest; and
- Ensure fairness and a diversity of views broadly representing South African society.
Rules governing chapter 9 institutions:
- Chapter 9 institutions are impartial, independent and subject only to the Constitution and the relevant laws made in terms of the Constitution. They must exercise their powers and perform their functions ‘without fear, favour or prejudice’.
- The National Assembly (NA) is responsible for recommending commissioners to each commission, who are then appointed by the President. The Constitution guarantees these commissioners independence from every sphere of the state.
- The process of appointment of the commissioners has to be transparent and open to the public.
- Both the Public Protector and the Auditor-General must be sanctioned by at least 60% of the members of the NA while appointments to a commission need the support of a majority in the NA.
- People appointed to these posts must be South African citizens and, in the case of the Auditor-General, must have specialised financial knowledge.
- The makeup of the commissions must broadly reflect the country’s race and gender composition.
- Grounds of misconduct, incapacity or incompetence must be established to remove these officials from office. In the case of the Public Protector and the Auditor-General, at least two-thirds of the National Assembly would have to support a dismissal. Members of a commission can be dismissed by a majority vote of the NA.
- These institutions have extensive powers which, in some cases, include searching premises and attaching and removing appropriate articles/documents, as well as to subpoena people to appear before them.
- They have to report each year to the National Assembly on their activities and the achievement of their goals.