Let’s hold our leaders to account

2016-09-11 07:18
Kayum Ahmed

Kayum Ahmed

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During my term as CEO of the SA Human Rights Commission  (SAHRC), I dreaded making the annual pilgrimage to National Treasury to plead for the commission’s operational budget.

My job was made even harder when I had to present the budget after the Public Protector had met with the amiable bureaucrats at Treasury.

The Public Protector was a rock star whom Treasury officials asked to take selfies with.

I, on the other hand, was not.

So, when Parliament called for seven commissioners to be nominated by next week Monday, I was not at all surprised by the lack of attention this nomination process received.

The nomination of commissioners, whom I reported to as CEO, is unlikely to draw as much attention as the nomination for the Public Protector.

However, the nomination process is just as important, if not more so.

As the independent constitutional institution responsible for monitoring, protecting and promoting human rights, the commission possesses the power and authority to contribute towards the liberation of every person in this country.

Human rights can serve as a preamble to emancipation and possibility.

But governments, the private sector and conservative groups have, at times, appropriated rights discourses to entrench power through the creation of self-serving narratives embedded in human rights language.

Right wing organisations such as AfriForum have, for instance, created a “civil rights charter” using minority rights as a proxy for preserving white privilege and white power.

Consequently, the commission could conceivably use its authority to sanction the unjust application of state power or legitimise the government’s unequal implementation of basic services.

Commissioners could deliberately delay public hearings or the release of investigative reports that criticise the government.

On the flip end, the rights enshrined in the Constitution have been used to ensure access to antiretroviral medication for millions of South Africans.

These rights offer us the freedom to criticise the government, to challenge inequality and offer a framework for transforming our fractured society.

Given that the commission deals with a range of these rights, including the right to equality, access to water and healthcare, freedom of expression and access to education, the nomination and appointment of commissioners is a fundamentally important process.

Failure to ensure that commissioners meet the minimum standards set out in the Human Rights Commission Act of being “fit and proper persons” with “applicable knowledge or experience” and “a record of commitment” to social justice could impact negatively on the realisation of the Bill of Rights.

So, given the importance of the commission and its extensive constitutional mandate, why has so little attention been paid to the nomination of human rights commissioners?

There are several intersecting reasons. First, commissioners are not as publicly visible as the Public Protector and tend to limit their engagements with the media and the public.

Some commissioners prefer the comfort of their corner offices and business-class seats, and are reluctant to spend sufficient time with individuals and communities who desperately need their help.

Second, while the commission comprises highly skilled and committed staff who manage nearly 10 000 cases of alleged human rights violations a year, the bureaucracy at the commission (which I was partly responsible for creating) limits the effectiveness of its interventions.

Smaller civil society organisations that are not constrained by relentless audits of furniture or mandatory health and safety, risk, audit, finance, planning and reporting meetings, can act so much faster.

The Public Protector also has the benefit of not having to consult seven other commissioners before taking a decision.

Third, constitutional institutions such as the Independent Electoral Commission and the Public Protector have significantly larger budgets relative to their narrower mandates when compared with the SAHRC.

Those amiable bureaucrats at Treasury, as well as the parliamentary portfolio committee on justice, were never willing to increase the budget so that the commission could fully deliver on its mandate.

Finally, it is not in the best interest of any state to fund and support an institution that will hold the government accountable.

The commission is therefore vulnerable to appointments that weaken its institutional mandate.

And while we do not necessarily want or need commissioners who are rock stars, we must ensure that commissioners embody the values enshrined in the Constitution.

Many have argued that South Africa’s current challenges centre on the lack of sufficient leadership.

Plato’s famous work, The Republic, raises critical questions about what constitutes the legitimacy to rule.

Plato asks the following question: “Who then are those whom we shall compel to be guardians?

Surely they will be the men who are wisest about affairs of state, and by whom the state is best administered...”

Karl Popper, in The Paradoxes of Sovereignty, suggests, however, that Plato asks the wrong question.

He argues that the question about who should rule should be replaced by:

“How can we so organise political institutions that bad or incompetent rulers can be prevented from doing too much damage?”

In the South African context, I would argue that we require both decisive, enlightened leadership as well as strong, efficient institutions to hold leaders accountable. The SAHRC must remain one of those institutions.

Ahmed is a PhD student at Columbia University in New York and was CEO of the SAHRC from 2010 to 2015


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Read more on:    afriforum  |  human rights

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