[OPINION] Revisiting the Asmal Report

If anyone was going to take on the tricky task of dealing with Chapter 9 institutions and rethinking them, it was the late Kader Asmal. He was thoughtful, sometimes a bit blustery, but always energetic and committed to the task.

Ten years ago South Africa’s Parliament formed a committee to review the country’s ‘Chapter 9’ and associated institutions that are tasked with supporting democracy, human rights and accountability. According to the Constitution, “these institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year”. They are “independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice”.

The ad hoc committee was led by Asmal with his inimitable style and passion and caused a touch of controversy as well. The committee’s most controversial recommendation was to amalgamate five of the numerous institutions in its purview into a single human rights body. The five bodies the targeted for amalgamation were the South African Human Rights Commission (SAHRC), Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Pan South African Language Board and the National Youth Commission.

Essentially, the multi-party parliamentary committee’s report, or the Asmal Report, as it is informally known, concluded that all five aforementioned institutions, save the SAHRC, were largely ineffective and that some amalgamation ought to be done. No action whatsoever was taken on the Asmal Report and it lay gathering proverbial dust.

Then on 14 May this year, Parliament seemed to awake from its long slumber. The Speaker’s office asked for submissions on the feasibility of establishing such a single human rights body. The closing date was 25 May but after civil society and some opposition parties objected to this deadline, it was extended to 30 June. Why was Speaker Baleka Mbete in such a hurry to raise this matter after a hiatus of 10 years in which nothing was done, let alone even discussed?

When it was released in 2007, the Asmal Report was described as ‘unflinchingly objective’. The real purpose of the review was abundantly clear at the time: there are simply too many of these bodies; they must be rationalised. The only real question was how. Asmal detailed weaknesses in the accountability of Chapter 9 institutions and associated bodies to Parliament and recommended how to remedy the situation. The Asmal Report found that many of the institutions were marred by internal conflict and uneven performance, and that their functions overlapped. The committee knew the recommendation to amalgamate the five bodies would be unpopular given their large budgets and many staff.

Commissions like the National Youth Commission (which is not a Chapter 9 institution but fell within the purview of this Report as an ‘associated institution’) have resisted amalgamation, as have the heads of other possibly affected institutions. The National Youth Commission has since been replaced by the National Youth Development Agency (NYDA), but is even more mired in controversy and corruption than its predecessor. Many critics and opposition members have argued that amalgamation may be a good idea since these bodies are simply ‘cash cows’ of patronage.

For instance, in 2014 opposition parties called for the NYDA to be scrapped as it was unclear how it was spending its budget. In addition, its appointment processes have been somewhat chaotic and in 2015 it cut half of its senior management staff in what was described as a purge of SACP-aligned members. Its 2017 budget was in excess of R400 million. Similar excesses have plagued the Commission for Gender Equality for years.

It would have been politically difficult to amalgamate these bodies in 2007 and will be even more complex to untangle the web now, given the degree to which the state is captured. The nature of these appointments is that often the president uses them as a form of patronage or to reward loyalty to the party in power - the ANC thus far. The previous administrations lacked the venality of the Zuma years, of course, but there were traces of patronage, to be sure. In the present political climate it would be far more difficult to untangle such networks.

As civil society organisations prepare their submissions, one concern is that a single human rights body will water down the country’s commitment to gender equality, youth, and language. At a moment in our post-apartheid history when South Africans are more polarised than ever, these bodies could play an important role in entrenching a culture of human rights and diversity. But the reality is that South Africa cannot afford all of these bodies; there is too much overlap in administrative resources as well as mandates. Cutting their individual budgets to create a super-organisation and a super-budget may well be the most sensible thing to do.

But, what is certain is that there’s little point in creating a single human rights body unless the causes of poor governance, inefficiency and weak leadership that characterise the existing institutions are remedied. As is the case with state-owned enterprises, this is only likely to happen if the new body is not used as a vehicle for patronage and a truly independent head is appointed.

The political and parliamentary landscape has changed significantly since the issue was first raised 10 years ago. If Parliament wants a proper discussion and thoughtful deliberation of the issues, then scrutinising the Asmal Report would be a good place to start. The richness of the report as a whole and its recommendations should not be lost in the rush to implement one part of it.

Judith February is based at the Institute for Security Studies. Follow her on Twitter: @judith_february