Human Rights Commission Et Al: What is the role of South Africa's Chapter 9 Institutions?

Abstract

The six independent institutions established under Chapter 9 of the South African Constitution have been heavily criticised recently. One of the reasons that they are vulnerable to criticism is a lack of understanding of their role, both on the part of members of the institutions and the public. This article argues that they share two distinct roles: To provide a check on government and to contribute to the transformation of South African society. In fulfilling the checking role, they differ from the three branches of government as they have no power to block government action. Their effectiveness lies in their ability to provide an authoritative account of government action and to cooperate with government in the correction of problems. Their position as an intermediary between the public and government ensures that they can contribute to enhancing government accountability in ways that complement the role of the courts and Parliament. The explicit mandates of transformation and mobilization make the transformation role of the HRC, CGE and CRL Commission very clear. But, in different ways, the other three institutions, can also act proactively.  Finally the article argues that, despite mandates that overlap to some extent, the six institutions complement each other.  Their greatest challenges are the newness of democracy in South Africa, the immensity of the demands which the state is expected to meet and the political dominance of the governing party. Each of these factors puts pressure on the chapter 9 institutions and on democracy in South Africa.