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Corruption Watch (CW) will appear in the Constitutional Court on 6 March to challenge the National Assembly’s (NA) recent process to appoint persons to the Commission on Gender Equality (CGE). The organisation has cited the NA speaker, the president of the country, the Information Regulator, and the CGE as respondents.
This matter is of tremendous concern to CW, not only because of the failure to follow prescribed process but also because of the multitude of gender equality-related issues that South Africa faces every day. These include gender-based violence, the burden of poverty borne unequally by women, and the feminisation and impact of HIV and AIDS on women. The NA’s failure in this case, therefore, is not trivial, says the organisation.
In a broader sense, the matter involves the NA’s constitutional obligation to facilitate meaningful public participation in the process to recommend persons for appointment to Chapter 9 and other related institutions. CW has been advocating since 2016 for a more transparent and merit-based process, which includes sufficient public participation, in the appointments such as the inspector-general of intelligence, the public protector and deputy public protector, the national police commissioner, the executive director of the Independent Police Investigative Directorate, the auditor-general, the National Lotteries Commission board chairperson, South African Human Rights Commissioners, board members of the National Youth Development Agency, and the CGE.
The latter institution is mandated, among others, to investigate and try to resolve gender-related complaints, monitor compliance with international instruments, and promote public understanding of the importance of gender equality. In recent times, however, it has been beset by governance problems and a high staff turnover, with accusations of bullying and infighting coming to light. Members of the parliamentary portfolio committee on women, youth, and persons with disabilities, during a meeting in August 2022, came to the unanimous conclusion that “the CGE was not functioning and fulfilling its constitutional mandate”.
It is therefore critically important that the right people are appointed. Commissioners are required to have a track record of commitment to promoting gender equality and the experience and knowledge to efficiently and effectively further the CGE’s mandate.
Unfair rules of engagement
On 26 June 2022 the committee invited nominations, applications, and comments for a process that would culminate in the appointment of new CGE members. CW accordingly made a submission, focusing on certain key points:
- We felt that the criteria and guidelines currently listed in the Commission on Gender Equality Act were too limited to provide for a strong group of candidates for interviewing, and should be supported by background checks, the declaration of conflicts of interest, and a demonstrated ability to act impartially, among others.
- We suggested that knowledge of gender issues and challenges, a track record of change management, and proven leadership qualities and experience, among others, be taken into consideration.
- We expressed concern at the short time provided for nominations or applications and urged the committee to extend the deadline for applications by an additional week.
On 2 September 2022 the committee issued a further call for comment on the shortlisted candidates, but this time gave interested parties just 14 calendar days, or 10 working days, in which to thoroughly scrutinise the 24 hopefuls. Furthermore, comments were to be submitted online – but the comment section of the form allowed for just 2 000 characters, roughly between 285 and 500 words.
In addition, interested members of the public received a link leading to an Excel spreadsheet containing the barest information about the shortlisted candidates – their full names and qualifications, but no further details such as their appropriately redacted CVs. Parliament’s own public participation model repeatedly stresses the need for adequate access to information at all times.
CW raised concerns that the public had not been given enough information about the candidates to make informed comments, asking for more transparency, for the comment period and the character limit to be extended, and for CVs of the candidates to be made public.
We engaged several times with the portfolio committee and also wrote to the NA, the president, and the Information Regulator. The committee disregarded our concerns and those of other organisations and individuals, using the Protection of Personal Information (Popi) Act to justify the inadequate information about the candidates, and in February 2023 the new commissioners were appointed – two of which were red-flagged according to information publicly available elsewhere.
One of our contentions is that the interpretation of the POPI Act in this case is incorrect, and that the right to privacy must be balanced by other rights such as that of access to information – especially when it is in the public interest.
Challenging the committee
In its founding affidavit, CW contends that the committee failed to discharge its constitutional duty to facilitate meaningful public involvement in the CGE appointment process, and that the NA “paid lip service to the need for public participation in the recommendation process”. It seeks a court order declaring the subsequent appointments to be unlawful and invalid, which would be suspended for 18 months to allow for the process to be run again.
“These submissions demonstrate that the National Assembly failed to act reasonably because (1) it failed to provide access to relevant information; (2) the time-frame to provide submissions was unreasonable; and (3) the limit placed on the length of submissions was unreasonable.”
CW argues that:
- There was no reasonable opportunity to participate in the recommendation process due to the limited access to relevant information.
- The committee’s interpretation and application of the provisions of the Popi Act is incorrect and fails to balance the right to privacy against other rights, particularly the right of access to information.
- The committee’s self-imposed urgency did not justify the unreasonably truncated time-frames for public participation process.
- The format of submissions unnecessarily curtailed members of the public and interested organisations’ ability to meaningfully participate and provide adequate comment on candidates.
CW adds that the failure to comply with such constitutional obligation undermines the CGE and its important constitutional mandate in a society fraught with gender-based violence and gender inequality.
Public participation is non-negotiable in a democracy
Allowing the public sufficient opportunity to participate in processes like this is vital in a well-functioning democracy. It tells people that their voices are heard, that the country’s leaders are striving for good governance, and in the case of appointments, it provides another level of safety to ensure that suitable people are recruited to fill important positions.
In its public participation model, Parliament says that active public participation allows “all community members to meaningfully influence the decisions that affect their lives”.
This is a principle that the Constitutional Court has upheld on several occasions.
In Doctors for Life International v Speaker of the National Assembly and Others (2006), Justice Albie Sachs said, in a separate judgment concurring with Justice Sandile Ngcobo’s main judgment: “All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens, and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion.”
