Chapter 9 institutions: for the sake of accountability and constitutional democracy

Author: Kenneth Sithebe
Candidate Attorney, Centre for Child Law, Faculty of Law, University of Pretoria

When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice beneath new generations. – Solzhenitsyn

It is in the wake of the Public Protector’s findings regarding an upgrade to the President Zuma’s private residence in Nkandla that, the importance and our tolerance for Chapter 9 institutions comes to the fore. Having presented her findings to the public, the Public Protector was hailed by some as a heroin to a South Africa that is ridden with corruption, whilst some questioned her credibility and the integrity of her office. It is submitted that these debates are ordinary in a vibrate democracy like South Africa’s and should be welcome. However, what should not be welcome are unsubstantiated remarks aimed at undermining the office of the Public Protector, or any of the other Chapter 9 institutions, namely, the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; Commission for Gender Equality; the Auditor General; and Electoral Commission. These institutions, as provided for in section 181 of the Constitution, form a cornerstone to the sustenance of democracy and are important for the full realisation of other democratic principles such as accountability, respect for the rule of law and human rights.

The Certification judgement by the Constitutional Court provides a very basic understanding of the role of the Public Protector and, by implication, other Chapter 9 institutions:

• to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice;
• to ensuring effective, accountable and responsible government; and
• to investigate sensitive and potentially embarrassing affairs of government.

In our democracies, and as Africans, Chapter 9 institutions are a necessity. Not because we are Africans, but because we have suffered the most at the hands of previous regimes that were never accountable to anyone, namely, apartheid, colonialism and dictatorships together with post-independence civil wars. Further, institutions designed to uphold accountability are inherently linked with (good) governance and the legitimacy to govern.

Some of the dictates of democracy is that, government can only act as provided for by law, and that any action that goes beyond the perimeters of what is legally provided for should be accounted for, through various mechanism such as courts. Accountability goes to the centre of the rule of law and, particularly so, good governance. For without the rule of law, tyranny becomes the order of the day. It is important, as shown by the report and the enabling provisions in the Constitution that no man or women is above the law, regardless of rank. Need it be pointed out that countries with a good track record of observing the rule of law also have a strong and lively democracy- therefore, there is an inherent link between the two.

In conclusion, the role of Chapter 9 institutions is primarily to strengthen democracy, and part of this is ensuring that accountability, within those who govern, becomes a norm, not an exception. Whether the National Assembly will pursue the Public Protector’s recommendations, some against the President, should be of no consequence to the operations of the office of the Public Protector. This report has laid the necessary foundation.

About the Author:
Kenneth Sithebe holds a Bachelor of Laws (LLB) from the University of Pretoria and is currently an LLM candidate at the University of Pretoria (South Africa). He His main areas of research are human rights, international criminal procedure and women’s rights.