Capacity and effectiveness of selected National Human Rights Institutions in South Africa

• Pages: 29-63
• DOI: 10.10520/EJC-15923dfcea
• Author: S. Tsoeu-Ntokoane
• Record Number: lesotho_v26_n2_a2
• Published date: 01 December 2018
• Date: 01 December 2018

CAPACIT Y AND EFF ECTIVEN ESS OF SE LECTED N ATIONAL

HUMAN RI GHTS INSTITUTI ONS IN SOUTH AFRI CA

Tsoeu-Nto koane, S. 

Abstract

The paper comments on the o perations of se lected cases o f

Chapter 9 institutions that are e mpowered by the S outh

African constitution to operationalize human rights. It

discusses their capacity/effectiveness on the basis o f how they

have acquired and contin ue to entren ch their legit imacy

through a sound constitut ional foundation, quality of staff,

caseload and compl aints monitoring. Moreover, issues of

jurisdiction, meant to re lation form to function, most

especially pr ogrammes and ac cessibility are also d iscussed.

The paper concludes that des pite progress ive intention of their

founding law the per formance o f these institutions still

remains a w ork in progress.

INTROD UCTION

This paper comments broadly on the capacity an d effectiveness of

state institutions supporting democracy in South Africa. They are

variously called Institutions Supporting Democracy (ISD’s),

Chapter 9 instituti ons - denoting their location i n the c ountry’s 1996

Constitution and/or National Human Rights Institutions (NHRI’s)

by international Paris Principles’ influenced literature (OHCHR,

2015).

1

These institutions, as established by Chapter 9 of the 1996

Constitution, include the South African Commission for Human

 PhD. Lect urer, Departme nt of Political and Administrati ve Studies,

National University of Le sotho, email: stsoeu@gmail.c om /sr.tsoeu @nul.ls.

1

Internatio nal Council on Human Right s Policy. (2005). Assessing the

Effective ness of National Human Right s Institut ions,

http://ww w.ichr p.org/fil es/report s/18/125 _report. pdf (08/10/2013).

30 LL J Vol. 24 NO. 1

Rights (S AHRC), Public Protector (PP), Com mission for Gend er

Equality (CGE), th e Auditor General (AG), th e Commissi on for the

Promotion and Protection of t he Rights of Cultural, Religious and

Linguistic C ommunities (CRCRL), and the Independent Electoral

Commissio n (I EC). These institutions are empower ed by t he

country’s supreme law and are esse ntial elements of the country’s

rights infused constitu tional democracy. This paper discusses th e

capacity and effectiveness of three selected cases of Chapter 9

institutions, which are: the SAHRC, CGE a nd CRCRL.

South Africa underwent a tra nsition from minority rule to an

inclusive democracy in 1 994 and a unique feat ure was its pact-

driven, negotiate d form.

2

This transition not only determined the

form of democracy of the new Republic b ut also the particular

institutions that underpin its g overnance. Wit h th e dev elopment o f

democracy, a human right s culture was mad e an all import ant

feature of t he new Constitution and a wide-rangi ng set of human

rights, including Socio-economic ri ghts, was inscribed i n th e Bill of

Rights and incorporated in the Interim Constitution of 1993

3

and

repeated in the final Constitution of 1996.

4

From t he onset of

universal suffrage, there has been a conscious effort that these

rights do not remain on paper but rather that they are actively

realised, promoted and entrenched in the South African bran d of

constitutionalism. T hese instituti ons of focus are fundamental to the

development of an accountable, transparent and d emocratic state.

5

This is a core fu nction of a political system t hat by its very nature

2

Breyten chach, W., (2000 ), ‘Democracy i n South Africa: What kind and is it

consolidat ing?’ Economics , 21 Se ptember 2000, p1.

3

The Inter im Constitution of the Republi c Of South Afri ca, 1993.

4

The Con stitution of the Republic of So uth Africa, 199 6.

5

Institute of Democracy i n South Africa (IDASA), (200 7), ‘The Relatio nship

Between the State Institution s Supp orting Constitutional Democra cy a nd

the National L egislature,” Submissio n to the Ad Hoc Com mittee on the

Review of S tate Institutio ns Supporting De mocracy, p1.

31

reflects the heterogen eous interests of its citizens and expectations

of post-apartheid constituti onal governance. The i nstitutions do

inhabit a specific place i n South African politics because they h ave

come into being not thro ugh ordi nary legislati on but through

provisions o f the Constitution.

6

Since their inception, these institutions have sought, with varying

degrees of s uccess, to fulfil their res pective roles and ma ndates,

many deali ng with enduring teet hing probl ems, such as lack of

public inter est in their activities, lack of adequate resourc es and

capacity, overlapping mandates and organisational problems.

7

This

means that contrary to their seemingly benign nature t hey are

expected to change and adequately k eep up with the cha nging

demands placed on th em. The Commonwealt h Secretariat co ntends

that NHRIs thrive best in an environment w here other national

democratic institutio ns are robus t and there is a hig h degree of

human rights literacy.

8

NHRIs ar e most effective when the nation's

democratic ins titutions operate with a clear u nderstandi ng of their

own roles and functions, when the nation's i nstitutions understand

the roles a nd functions of other democratic na tional institutions a nd

when the public can command a nd dema nd respe ct for human

rights.

9

The paper c omments on the capacity /effective ness of Chapter 9

institutions by discussing o nly s ubstantive issues of legitimacy a nd

jurisdiction. The issue of these institutions standing in the

crossroads between government and civil society is a relevant but

6

Ibid, p1.

7

Ibid, p2.

8

Common wealth Secretaria t (2001), "Fa ctors which Aff ect the Operatio n of

National Hu man Rights Institution s", National Human Rig hts I nstitutions:

Best Practice, Commonwealt h Secretariat: Lo ndon, p39.

9

Ibid, p39.