Study Theme 3: State Institutions supporting Constitutional Democracy Flashcards
State institutions supporting constitutional democracy
→The Public Protector
→ The Auditor General
→ The Commission for Gender Equality
→ The South African Human Rights Commission
→ The Commission for the Promotion and Protection of the Rights of Cultural Religious and Linguistic Communities
→ The Electoral Commission
The South African Human Rights Commission
Established in terms of Section 184 of the Constitution
Functions:
→ Promote a respect for human rights and a
culture of human rights
→ Promote the protection, development and attainment of human rights
→ Monitor and assess the observance of human rights in the republic
Powers:
→ Investigate and report on the observance of human rights
→ Takes steps to secure appropriate redress where human rights have been violated
→ Carry out research
→ To educate
The Commission for the Promotion and protection of the Rights of Cultural, Religious and Linguistic Communities
Established in terms of Section 185 of the Constitution
Functions:
→ Promote respect for the rights of cultural, religious and linguistic communities.
→ Promote peace, friendship, humanity, tolerance and national unity among cultural, religious and religious communities.
Powers:
→ To monitor on issues concerning the rights of cultural, religious and linguistic communities
→ To investigate issues concerning the rights of cultural, religious and linguistic communities
→ To research issues concerning the rights of cultural, religious and linguistic communities
→ To educate issues concerning the rights of cultural, religious and linguistic communities
→ To lobby issues concerning the rights of cultural, religious and linguistic communities
→ To advise issues concerning the rights of cultural, religious and linguistic communities
→ To report issues concerning the rights of cultural, religious and linguistic communities
Commission for Gender Equality
Established in terms of Section 187 of the Constitution
Function:
→ Promote respect for gender equality and the protection, development and attainment of gender equality
Powers:
→ To monitor on issues concerning gender equality
→ To investigate on issues concerning gender equality
→ To research on issues concerning gender equality
→ To educate on issues concerning gender equality
→ To lobby on issues concerning gender equality
→ To advise on issues concerning gender equality
→ To report on issues concerning gender equality
Public Protector (Function, Powers, Limits, Tenure)
Established in terms of Section 182 of the Constitution
Functions:
→Investigate: conduct in state affairs, public administration in any sphere of government, alleged or suspected to be improper
→Report on that conduct
→Take appropriate remedial action
Powers:
→Additional powers are prescribed in National Legislation
Limits:
→May not investigate courts
Tenure:
→Appointed for non-renewable term of 7 years(Section 183 of the Constitution)
Is remedial action by the Public Protector binding?
Yes and No:
Yes: phrased as an instruction - It is binding
No: phrased as a recommendation - It is not binding
EFF Case applicable
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11
→CC found - remedial action of Public Protector is often binding, but not always
→If phrased as a recommendation, most likely not binding
→If phrased as an instruction, most likely binding
→When binding, compliance is not optional, remedial action taken against those under investigation cannot be ignored without legal consequences.
What are the primary roles of Chapter 9 institutions
- Monitoring the Government
- Transforming South Africa into a society in which social justice prevails
What are Chapter 9 institutions set up for
Safeguard and promote democracy
- They are established in terms of section 181 of the Constitution: as independent and impartial bodies
- Make findings and recommendations, ito of the PP can make remedial actions
- Cannot review or set aside legislation
What is the composition of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
Section 186 of the Constitution states the following:
- Number of members of the Composition and their appointment is prescribed by national legislation
-The commission’s composition must:
> Broadly represent the main, cultural, religious and linguistic communities.
> Broadly represent the gender composition of South Africa
The Electoral Commission
Established in terms of Section 190 of the Constitution
Functions:
- Manage Elections of national, provincial and municipal legislative bodies in accordance with national legislation
- Ensure elections are free and fair
- Declare election results within period prescribed by national legislation
Powers:
- Prescribed by national legislation
What is the composition of the Electoral Commission
- Must be comprised of at least three persons
- Number of members & terms of office, be prescribed by national legislation
Appointments in terms of Institution supporting Constitutional Democracy
In terms of Section 193 of the Constitution:
- The President, on recommendation from the National Assembly, must appoint the members of these institutions.
Removals in terms of Institution supporting Constitutional Democracy
In terms of Section 194 of the Constitution:
- Member may be removed on the following grounds:
> Misconduct
> Incapacity
> Incompetence
> Resolution adopted by National Assembly calling for that person’s removal from office
The Office of the Auditor General
Section 189 of the Constitution
- AG appointed for a fixed, non-renewable term of between 5-10 years
- Plays role over control of government finances and expenditure
