Defend Truth


Chapter Nine Institutions should have a key role to play in defending our Constitution


Paul Hoffman SC is a director of Accountability Now.

Unfortunately, the unconstitutional practice of cadre deployment has ruined the chances of Chapter Nine Institutions properly functioning as the Constitution requires.

Traditionally government in democratic dispensations is divided into three branches:

  • The Legislature, which makes laws, exercises oversight on behalf of voters and monitors implementation of the laws it passes;
  • The Executive, which runs the country via a cabinet and public administration; and
  • The Judiciary which has the task of adjudicating disputes independently and impartially.

In the new or post-liberation South Africa, there is a novel fourth branch known as the “Chapter Nine Institutions”. These institutions are designed to support constitutional democracy and strengthen it.

The founders of the new order recognised that a citizenry accustomed to living in an oppressive and authoritarian apartheid order would require help in adjusting to the new role of being active and engaged citizens enjoying the privileges of a Bill of Rights in a constitutional democracy under the rule of law.

The Chapter Nines are designed to assist all South Africans in adapting to the new non-racial, non-sexist order in which human rights must be respected and protected by the state and inherent human dignity is, at last, given its proper place.

Promoting the achievement of equality is a constitutional goal. It is best attained by optimally delivering guaranteed human rights to education, healthcare, social assistance and access to housing.

There are six Chapter Nines listed in the Constitution. The Office of the Public Protector (OPP) is the most prominent of them, followed by the Auditor General (AG) and the SA Human Rights Commission (SAHRC).

The Independent Electoral Commission has the sacred duty to ensure free and fair elections, but has dropped the ball by turning a blind eye to outrageously unorthodox fund-raising methods that render the playing fields of election campaigns a less-than-level terrain.

The minor Chapter Nines include the Gender Commission and the commission with the long name that attends to matters of religion, language and culture. These two commissions are now a luxury that the country can no longer afford, they should be folded into the SA Human Rights Commission as their mandates concern human rights and always have.

Language rights have been honoured in the breach in that we have 11 official languages but only one, English, is widely used in practice in the governance of the country.

Why then the need to defend the Constitution using Chapter Nines? Sadly, the constitutional instruction to “support” and “strengthen” has come under so much pressure that the need to defend the Constitution has been identified as a task for the three main institutions — the OPP, the SAHRC and the AG. This is because the value system and purpose of the Constitution have come under sustained attack from various quarters since the dawning of democracy.

Our negotiated settlement, essentially between Afrikaner nationalists on the one hand and African Nationalists on the other, was a complex exercise that birthed a justiciable Bill of Rights, a supreme Constitution and fealty to the rule of law, instead of the “rule by law” of the past.

Implicit in these carefully negotiated changes is an acknowledgement that parliamentary sovereignty was abused between 1910 and 1994, particularly after the National Party came to power with a minority of voter support due to the loading of rural constituencies in 1948 and made its apartheid ideology the law of the land via its slim parliamentary majority.

In the new SA, parliamentarians can no longer do as they please. They are no longer sovereign; they are constrained by the tenets and values of the Constitution. Any conduct or law which is inconsistent with the Constitution is invalid and may be struck down by the courts if challenged and successfully impugned.

A multi-party constitutional democracy under the rule of law was not the first choice of either of the main negotiating parties at Codesa One and Two.

The ANC had long embraced the National Democratic Revolution in which hegemonic control of all levers of power in society is the aim. These revolutionary notions do not sit easily with multi-partyism, but “Amandla Awethu” remains the war cry of the alliance of parties that has governed at national level since 1994.

The counter position of the Afrikaner nationalists as regards the exercise of power is best summed up in a 1960s election poster: STEM VROEG, STEM DIKWELS en STEM NAT (vote early, vote often and vote Nat).

The universal franchise first exercised in 1994 put paid to such notions of power. The ANC and its allies have persisted with their National Democratic Revolutionary ideals even though they are not congruent with the Constitution in many respects.

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The unconstitutional practice of cadre deployment has seen loyal members of the alliance and their fellow travellers elevated to positions of power and influence in the state, the public administration and the state-owned enterprises. Cadre deployment has ruined the chances of Chapter Nines properly functioning as the Constitution requires.

The Auditor General has maintained a modicum of independence, reports vast amounts of irregular, unauthorised and fruitless expenditure year in and year out, to the chagrin of those cadres who did not “join the Struggle to be poor”.

In spite of the beefing up of the powers of the Auditor General, the scope of looting reported by that office increases year by year. According to estimates made by those involved in the Zondo Commission, between one and two trillion rands has leaked away from the nation during State Capture, to the detriment of the poor more than anyone else.

On Thuli Madonsela’s watch, there was a blossoming of independent action by the OPP, but that died when Zuma appointed Busisiwe Mkhwebane to replace Madonsela after her seven-year term expired.

The decision of Zuma to appoint Madonsela eventually cost him his presidency, and in the end, his freedom for a brief period. His unorthodox home financing arrangements at Nkandla identified him as a constitutional delinquent and his friendship with the Gupta family led to State Capture of the worst kind.

An investigation by the OPP of complaints by the Jesuits and the DA prompted the Zondo Commission, and the activities of that commission led to Zuma’s early recall by the ANC in February 2018, more than a year before the expiry of his term of office.

The OPP remains captured despite the suspension of Mkhwebane and her long-running impeachment hearing in which the strategy is to spin the matter out until her term of office expires in October 2023.

It is good that the OPP is so strongly protected by law, but it is bad that delays and dodging have so unnecessarily protracted proceedings which began several years after Accountability Now played the role of canary in the coal mine regarding Mkhwebane’s unorthodox approach to her constitutional obligations.

There is one Chapter Nine Institution that does not exist yet, but should, without delay. The constitutional architecture of the chapter is ideally suited to housing a body of specialist corruption investigators and prosecutors mandated to prevent, combat, investigate and prosecute serious corruption involving big amounts over, say, R10-million.

The need to enjoy secure tenure of office, a blessed state of being the Scorpions did not enjoy before they were unceremoniously disbanded by team JZ upon his ascension to political power, is available in spades in the Chapter Nines, as illustrated by the charmed life Mkhwebane leads.

The Constitutional Court regards corruption as a human rights issue and one that is covered by the international obligations of the state to keep in place adequately independent anti-corruption machinery of state.

We currently have no such machinery. Our puny Hawks do not fly high enough, see far enough nor go after big enough prey. The prosecution service admits it has a backlog of over 10 years in the type of cases that need to be mounted; the “army of prosecutors” of which the Chief Justice speaks when reflecting on the malfeasance he uncovered is not only not in existence, it is impossible for the saboteur-infested and hollowed-out prosecution service to recruit the type of talent that was available in the ranks of the Scorpions.

Many dodgy characters still hold high office in the NPA, looking out to ensure that their sponsors in politics and business continue to enjoy the impunity they have garnered during the State Capture period, one which is still ongoing and has been going on longer than many people think.

The recent revelations around the putrid Hitachi Power Africa deal with Eskom, the arms deals and many more irregularities point to a malaise that will be the death of the country if urgent steps are not taken to overhaul the misfiring criminal justice administration by radically reforming its capacity to counter the corrupt, a capacity that is currently very limited.

The Constitutional Court has also specified, in binding terms, the criteria by which to measure the body required to protect human rights against the ravages of corruption so that the constitutional project can come to fruition in a land that could so easily be characterised by peace that is secure, progress that is sustainable, and prosperity that is equitably shared by all. These binding criteria have become known as the Stirs criteria for:

  • Specialised personnel who focus only on counter-corruption work;
  • Trained operatives sufficiently skilled to remain a step ahead of the wily corrupt politicians, public servants and business operators who are “in the game” of misappropriating the funds of the state through manipulation of the tender processes that are meant to be fair, equitable, transparent, cost-effective and competitive, but, all too often are not;
  • Independence in structure and operations ought to characterise the entity for those who work without fear, favour or prejudice to conquer corruption and its manifestations in kleptocracy and State Capture irrespective of the rank and power status of those under suspicion;
  • Resourced in guaranteed terms in an amount that matches the needs of the entity; and
  • Secure in tenure of office, such that the fate of the Scorpions will not befall those who work for the Chapter Nine Integrity Commission as the premier anti-corruption body in SA.

If our main Chapter Nine Institutions are relieved of unmeritorious deployed cadres and are suitably supplemented on the corruption front, the prospects of supporting and strengthening constitutional democracy under the rule of law are good.

The alternatives are all too ghastly to contemplate. DM


Comments - Please in order to comment.

  • Cunningham Ngcukana says:

    When we want to rely on unelected institutions in defence of our democracy instead of correcting the serious flaws in the constitution then we are having a risk of unelected institutions being squeezed in funding by a colluding executive and parliament as it is the case today. The fault lines of the South African democracy lie in the fact that you have MPs and MPLs who are appointed by the leadership that they must as public representatives have oversight over. These MPs can be recalled by the leadership at any time they believe that they are a threat to them or not be allowed to return after the next elections. We have a situation of two MPs the ANC prevented from returning who chaired committees dealing with malfeasance in two entities. Zodwa Rantho was considered a very serious danger after chairing the Public Enterprises Committee and was not returned to parliame nt after the 2019 elections by the New Dawn. This goes for Humphrey Maxhegwana who chaired the Communications Committee hat the New Dawn felt a danger to them. This goes for the independence of he Speaker.. When Max Sisulu set up a Committee to investigate Nkandla, he was removed and replaced with Baleka Mbethe. When parliament was to discuss the report of a Panel that the Speaker appointed on behalf of parliament, the very Speaker sat in the ANC NEC that took the decision to defend Ramaphosa from the Phala Phala saga by rejecting the report. The writer supported this and saw no flaws.
    We are not fools.

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