According to sources who spoke on condition of anonymity, an attempt is being made to remove the CEO of the Commission for Gender Equality (CGE), Jamela Robertson, less than two years into her five-year contract, allegedly owing to commissioner interference in the running of the CGE. In a few months a potential six commissioners will be appointed to the CGE for a five-year term after a process of application or nomination via Parliament’s website and an interview in Parliament. 

With six vacancies for commissioners, a potential vacancy in the post of CEO, a new CFO (who started in June 2022), and remaining vacancies in senior management, the leadership of the CGE is in transition. Problems with the Public Protector have shown that there are serious consequences for ill-suited Chapter 9 leadership. 

Chapter 9 institutions were designed as independent institutions supporting democracy. They are fundamental to the protection of human rights envisioned in the Constitution’s Bill of Rights. One such institution is the CGE, tasked with promoting, protecting and enabling gender equality in South Africa. A failure of CGE leadership could have dire consequences for everyone in South Africa who is seeking to advance gender equality or to resolve a case of gender discrimination. This is a critical moment for the public to start to pay attention to this vital institution.

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The problems at the CGE have been brewing for some time. In August 2021, News24 reported growing concerns around “maladministration and poor governance”, as well as concerns that the parliamentary portfolio committee on women, youth and persons with disabilities was overstepping its mandate and trying to control the institution from the chambers of Parliament. The report detailed additional issues: 

• The appointment of a family member as personal aide to commissioner Mazibuko (a commissioner with albinism who requires a personal aide);
• Commissioner Moleko, the deputy chairperson of the commission, undertaking paid work at the University of Stellenbosch in addition to her full-time duties at the CGE;
• Infighting among commissioners that has since led to Commissioner Botha’s suspension, allegedly without due disciplinary process;
• The resignation of Commissioner Mofokeng due to “the toxic environment” between the CGE and the parliamentary portfolio committee; and
• Letters written to Parliament by commissioner Deyi regarding their treatment at the CGE.

The News24 article quotes a source as saying the CGE is “one big mess”. Former insiders I spoke to said the same. However, perhaps more concerning, one stated that “the CGE is in grave danger, but I don’t know that anyone cares”. 

As a 2017 review of the work of the CGE over its first 20 years describes, its establishment was “a historic moment, especially for a country steeped in traditional, cultural, religious and social values and practices that are often inimical, or even hostile, to the mere notion of gender equality”. The report makes it clear that the CGE has punched above its weight in terms of impact – particularly in the legal arena. The CGE had been “called upon to fulfil this enormous and often daunting mandate under extremely trying circumstances” since its inception. As of June 2022, those trying circumstances remain both internal and external. 

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Externally, the culture of patriarchy has not relinquished its grip on South Africa. While there is better legislative protection for abortion, against domestic and sexual violence, and for workplace equity, some elements of patriarchal culture remain stubbornly entrenched. Gender pay gaps, high levels of gender-based violence, the criminalisation of sex work, and the poor protection for women workers, particularly informal workers, make this evident.

Leadership crisis

Internally, the CGE could be described as being in a leadership crisis. In what was critiqued as a flawed appointment process, the previous CEO, Keketso Maema, was initially shortlisted for interview, then un-shortlisted, allegedly linked to the fact that she was not a South African. She is challenging this process in a case before the Labour Court. Additionally, several of the independent persons on the CEO appointment panel left before the process was concluded, describing it as flawed. 

As a chapter by Lisa Vetten in a forthcoming book edited by former commissioner Amanda Gouws, Feminist Institutionalism in South Africa: Designing for Gender Equality (October 2022, Rowman and Littlefield) details, the position of CEO has often been involved in this infighting – a canary in the proverbial coal mine – with short-lived CEOs reflective of institutional decay. Not one of the five CEOs appointed in the CGE’s first 12 years of existence was able to complete their term, for example, and there have been numerous court cases relating to the lawfulness of the appointment and removal of CEOs. With regards to the current CEO, former insiders suggest she’s being targeted specifically because of her attempts to fill senior posts, posts that commissioners tried to interfere with. 

A request for comment from the CGE CEO and the acting chairperson, commissioner Moleko, was not responded to.

The CGE is split between the secretariat leadership staff and the commissioners, who are appointed by Parliament via nomination to the President for a five-year term. One former insider said that, at present, there seems to be a “battle between commissioner power and institutional functioning” and that “in the course of the institutional struggle, the commission has missed key opportunities to comment on legislative developments”, noting the failure of the CGE to comment on the South African Law Reform Commission’s discussion paper on extending maternity benefits to informal workers – a matter former commissioners of the CGE had spearheaded several years ago.

The power struggle between commissioners and secretariat should be resolved by the details of the 2012 Commissioner’s Handbook, which was introduced to “provide guidance to and regulate commissioners in the execution of their responsibilities, interface with the secretariat of the commission, and in implementation of their public office as commissioners”. However, sources say commissioners are in the process of trying to rewrite the handbook, with the potential to reconfigure their influence on the running of the institution. 

‘The CGE is Animal Farm’

The infighting is not just detrimental to the commission’s ability to exercise its mandate externally, but also to the ability of staff to do their work internally. “A lot of what is wrong inside the CGE is not in the public domain and those who witness do not feel like they can speak out. People who speak out are victimised and some even leave the institution,” said a former staff member under condition of anonymity. 

This non-glamorous work of responding to legal complaints, making parliamentary submissions and responding to their audit responsibilities requires dedicated staff in a conducive working environment. Yet, the evidence suggests working conditions are not conducive to achieving these fundamental goals. Key senior positions have become vacant over the past two years, including the CFO, head of research, head of legal, as well as several provincial staff. 

One source interviewed described commissioners as acting “as though the CGE was their personal fiefdom” and another commented that “the CGE is Animal Farm”. 

Aside from a toxic work environment, as the most recent annual reports show, this institutional instability led to a R3.4-million increase in irregular expenditure between 2020 and 2021. As a recent parliamentary meeting highlights, it has led to new audit findings against the CGE – something that was improving under the previous CEO’s stewardship.

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The functioning of the CGE is not simply an audit, financial, labour law or gender issue. It is a public law issue, regarding the functioning and independence of a Chapter 9 institution. With the replacement of key senior leaders – the CEO for instance, and more recently the appointment of a new CFO, and in a few months, new commissioners – the institution is at risk of descending into further dysfunction if the alleged interference is not remedied, and if strong leaders with a strong background in gender equality work are not appointed.

Worryingly, the historical challenges of the CGE mean that this abnormal situation has become normalised. There does not seem to be any public outcry about this dysfunction, or any demands to repair it in the way there are around other Chapter 9s such as the Public Protector. In this respect, organised civil society requires its own scrutiny for failure to make its voices heard. If there is no public focus on this important institution, it will not be able to right its course.

The upcoming nomination process for new commissioners – where any member of the public may comment on the suitability of candidates – is a vital point of intervention. When the list of names of those who will be interviewed is released, with their CVs made public, it is essential that these are considered not just by parliamentary staff and members of Parliament, but by the public, including the gender movement in civil society and gender experts in academia. Current commissioners who are up for reappointment should not simply slide through parliamentary appointment processes. Their work over the past five years should be subject to parliamentary and public scrutiny, and if they are found wanting, they should not be reappointed. New candidates who are nominated, or who apply, should also be considered by the public.

This institution is an important part of our democracy, and it is time citizens started playing their role in ensuring it functions appropriately. DM/MC

Jennifer Smout served as a gender commissioner for six months between August 2019 and January 2020.