Legislative History

Chapter 9 of the Constitution provides for the establishment of a number of State Institutions to support constitutional democracy, including the Human Rights Commission and the Commission for Gender Equality. Only one of these bodies remains to be set up: the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. In August 2001, the Minister for Provincial and Local Government tabled legislation to establish this Commission and regulate its powers.

The concept for the Commission emerged from a heated debate over whether South Africa's new constitution should balance the protection of individual rights with mechanisms to protect the collective rights of South Africa's various cultural, religious and linguistic communities. At the time (1994_96), this position was advanced most forcefully by proponents of Afrikaner nationalism. In its strongest version, it took the form of a call for political autonomy through separate administrative structures, such as a volkstaat. The Constituent Assembly overwhelmingly rejected this approach. As a compromise, however, it provided for a special Commission that could prevent discrimination against any cultural, religious or linguistic group and promote tolerance and mutual respect amongst these various groups.

Several drafts of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill were discussed at national conferences on Heritage Day (24 September) in 1998 and 1999, and at provincial workshops in mid_2000. (See further the SACC's submissions 11 September 1998 and 5 May 2000.) The Portfolio Committee on Provincial and Local Government held public hearings on the Bill on 2 October 2001.

Main Provisions of the Bill

Objects and Powers of the Commission

In line with section 185(1) of the Constitution, the Bill defines the Commission's objects as:

• promoting respect for and protecting the rights of cultural, religious and linguistic communities;
• promoting peace, friendship, humanity, tolerance and national unity among and within these communities on the basis of equality, non_discrimination and free association;
• fostering mutual respect among communities; and
• recognising cultural or other councils for a particular community or communities.

In order to achieve these objectives, the Commission is empowered to monitor, investigate, research, educate, lobby, advise and report on any issue concerning the rights of cultural, religious and linguistic communities. This includes engaging in public information campaigns, compiling data on key people and organisations within these communities, and facilitating the involvement of these communities in nation_ building. The Commission may also refer matters (such as incidents of discrimination) to an appropriate authority for further consideration or action.

Composition of the Commission

The Bill provides for a Commission of 11 to 17 members, nominated by the public and appointed by the President to five_ year terms. Commissioners are required to be South African citizens, to subscribe to the objects of the Commission and to be "fit and proper" persons. They may not be "unrehabilitated insolvents", mentally unstable, have served more than 12 months in prison in the previous five years, have been removed from office as a Commissioner, or have been convicted of a hate crime. A special selection panel is to be appointed to review public nominations and to propose suitable candidates to the President. The President is not bound by the panel's recommendations, but must ensure that the Commission "is broadly representative of the main cultural, religious and linguistic communities in South Africa" and "broadly reflects" South Africa's gender balance. A Commissioner may be removed from office only if a committee of the National Assembly finds that person to be guilty of misconduct, incompetent, or incapable of performing his or her duties.

National Consultative Conference

The Commission is empowered to convene national consultative conferences from time to time, but must secure funding for such events. A national consultative conference would act as a public forum to review the Commission's activities, to consider recommendations from the Commission, and to evaluate progress toward the achievement of the Commission's objects. Consultative conferences would involve members of the commission; representatives of cultural, religious and linguistic communities (including delegates from councils recognised by the Commission__see below); delegates from the National House of Traditional Leaders; and representatives of national, provincial and local government.

Cultural or Other Councils

The Bill would enable the Commission to recognise "a cultural or other council that can assist the Commission in achieving its objects". It also allows the Commission to recommend to a particular community that it establish such a council. Recognised councils would have the right to send up to two delegates to any national consultative conference and to apply to the Commission or any other organ of state for financial assistance.

Areas of concern

In its submission to the Portfolio Committee, the SACC expressed support for the Bill, noting that a number of the changes it proposed in earlier submissions had been incorporated. The General Secretary, Dr. Molefe Tsele, also applauded the Bill's shift in emphasis from the narrow protection of "group rights" to the promotion of unity and tolerance amidst diversity. At the same time, the SACC identified several specific concerns about the Bill:

• The Commission's powers to mediate conflicts within and among communities have been deleted from the present version.
• The nominations process does not require candidates to demonstrate the support of or even affiliation to any cultural, religious or linguistic body.
• Commissioners would not be prevented from simultaneously serving as an office bearer in a political party or a member of any national, provincial or local legislative body.
• Although the Commission is required to be "broadly representative" of South Africa's "main" communities, none of these concepts nor the criteria for the recognition of "other" councils are adequately defined.
• Recognition enables a council to apply for public funds, but the Bill does not make recognition contingent on compliance with the standards of public accountability established in the Non_Profit Organisations Act.

Dr. Tsele also expressed appreciation for the numerous opportunities provided for public comment during the development of the legislation. However, he added that the time for consultation should now be drawing to a close and urged the Portfolio Committee to expedite the finalisation and enactment of the Bill.

The role of SACC members

The deadline for submissions is officially past. However, the legislation is still before the Portfolio Committee, and the Chair of the Committee, the Hon Y Carrim, has expressed a willingness to share comments received after the deadline with other members of the Committee. Churches that wish to review the proposed legislation may find the Bill (B62_2001) on the web. Comments may be faxed to the Committee Chair at (021) 403_3723 as soon as possible. (The Public Policy Liaison Office appreciates receiving copies of submissions made by SACC members.)

The Bill is likely to be enacted before Parliament rises in 16 November. SACC members should begin now to consider whether they wish to nominate individuals to serve on the Commission once it is established.

In addition, SACC members may wish to familiarise themselves with the objects and powers of the Commission in order to identify ways in which they can interact with the Commission and assist it to achieve its goals. In particular, the SACC should explore the potential advantages and drawbacks of seeking formal recognition by the Commission as a religious council.

For further information

For additional information on the Bill, please contact the Public Policy Liaison Office by telephone at (021) 423_4261 or by email.