|
Getting your Trinity Audio player ready...
|
Parliament’s portfolio committee on women, youth and persons with disabilities plans to start a new process of appointing commissioners to lead the Commission for Gender Equality (CGE) in September. This follows a Constitutional Court ruling earlier this month that found the previous appointment process of five commissioners, undertaken in 2022, invalid as it offered inadequate public participation.
Corruption Watch (CW) approached the court in late 2023, several months after the appointments were officially announced by President Cyril Ramaphosa, to have them declared invalid.
On 26 June 2022, the committee – still under the sixth parliament at that stage – invited members of the public to nominate suitable candidates for appointment as members of the CGE. A deadline of 18 July was set for the nominations, followed by a shortlisting process in August. The CVs of the shortlisted candidates were to be published on Parliament’s website, with the public given between 2 and 16 September to comment on their suitability for the positions.
Public comments were to be submitted on an online form accessible to the public via a link provided on the parliamentary website. The form consisted of a list of names of the 24 shortlisted candidates and another link with additional information about them. This link provided access to a spreadsheet which contained the full names of the candidates and their qualifications. Their CVs were, however, not published. In its court papers, the National Assembly argued that the reason behind this was that it wanted to comply with the Protection of Personal Information Act as it pertains to the candidates.
This prompted CW to send several enquiries to the committee, asking it to amend the conditions of the public participation process to include the CVs and give the public more time and access to the relevant information required to make informed submissions, but to no avail. The court found that the process was not consistent with Parliament’s obligations imposed in terms of section 59(1)(a) of the Constitution and that the committee’s actions failed to secure a meaningful public participation process.
It further ruled that the invalidity of the appointments be suspended for 12 months. In practical terms this means that the commissioners may stay in their current positions for another year while either seeking other opportunities or waiting for a new parliamentary appointment process.
Portfolio committee chairperson Liezl van der Merwe is reported by EWN as having said: “We will possibly publish the shortlisted candidates over the December-January period, allowing for a six-week public participation process. This will be followed by interviews in February, allowing us to finalise the process, hopefully in March.”
Fixes put in place
Van der Merwe said shortcomings identified by the court, including publishing adequate information about hopeful candidates, were remedied during the recent recruitment for the National Youth Development Agency (NYDA).
“As a portfolio committee we are truly committed to meaningful public participation, and we will simply copy the model we implemented during the NYDA board recruitment process and use the same for the next CGE recruitment process. “
The current commissioners who are the subjects of the court ruling are not precluded from re-applying for their positions. Their five-year terms, of which just under half have been served to date, were to end in 2027.
Independent and impartial
Across the various arguments brought before the court, parties acknowledged the importance of the work of the CGE in the country. The judgment noted this as well: “The CGE is a Chapter 9 institution established in terms of the Constitution to strengthen democracy. Section 181(2) provides that Chapter 9 institutions are ‘independent, and subject only to the Constitution and the law, and they must be impartial and they must exercise their powers and perform their functions without fear, favour or prejudice’.”
Other organs of state are obliged to assist and protect these institutions, and no person may interfere with their functioning, the judgment continued.
“These provisions in effect provide for institutional independence from the arms of government in terms similar to that provided in relation to the courts. Thus, while these institutions are independent of government, they are required to fulfil their primary functions to strengthen democratic governance.”
The CGE released a media statement on the day of the court ruling, stating that the organisation’s leadership remains dedicated to its work and that it would not make any public comments on the matter.
