Submission to the Portfolio Committee on Provincial & Local Gov't
Re: Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill (B62 - 2001)

Summary

The SACC welcomes the Bill and, in particular, the decision to allow the Commission to convene national consultative conferences on an occasional, rather than an annual, basis. At the same time, we raise concerns about several aspects of the Bill, including the powers of the Commission, the process for nominating Commissioners, the conditions for termination of a Commissioner's membership, and the definition and regulation of "cultural or other councils".

1.0 Introduction

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 We welcome the publication of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill (hereafter, "the Bill") and extend our thanks to members of the Department who have worked diligently on the emerging legislation over the past three years. The Bill satisfies one of the last outstanding legislative obligations imposed by South Africa's new constitution and represents a further step in our collective efforts to consolidate a culture of tolerence, democracy and human rights.

1.3 The SACC has taken part in the two national consultative conferences on the implementation of sections 181-186 of the Constitution, held on consecutive Heritage Days in 1998 and 1999. We have also made submissions on two earlier drafts of the current Bill (11 September 1998 and 5 May 2000). We note with appreciation that many of the recommendations that we made in those submissions have been addressed in the Bill.

1.4 We broadly endorse the architecture and provisions of the Bill. In particular, we applaud the fiscally-responsible decision to allow for occasional, rather than annual, national consultative conferences. We also support, with certain reservations, the proposal to establish a selection panel to review nominations to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (hereafter, "the Commission") and to develop a short list of candidates.

1.5 At the same time, we urge the Portfolio Committee to give further consideration to several aspects of the Bill, including:

• The objects and powers of the Commission;
• The nomination of Commissioners;
• The conditions for termination of a Commissioner's membership;
• The definition and regulation of "cultural or other councils".

2.0 Objects and powers of the Commission

2.1 The emphasis of Commission's work should be on fostering mutual understanding of and respect for our nation's many cultural, religious and linguistic communities so that all will value our diversity as a source of national pride, creativity and strength. The Commission must not become a vehicle simply for the protection of the narrow interests of one community or another, but must promote peace, tolerance, and cooperation among all communities on the basis of equality, non-discrimination and free association. We therefore believe that section 4 delineates the Commission's objects appropriately.

2.2 Section 21 details the powers available to the Commission to pursue these objects. These include: research (including data collection and compilation and investigatory powers), education (including responsibility for reporting and public information and education campaigns), and advocacy (including lobbying and advisory roles). The Commission is also authorised to "facilitate the full and active participation of cultural, religious and linguistic communities in nation building in South Africa".

2.4 Missing from this list, however, are the powers of mediation and conflict resolution which have consistently been included in earlier drafts. In its first submission on the draft bill in September 1998, the SACC argued:

Mediation should not be limited to intervening in active disputes, but should also involve establishing and maintaining channels of communication that can help to identify and defuse incipient conflict. The Commission should have the power and the capacity to mediate:

• in intra-groups conflicts, where a group's own adjudication structures are non-existent, inappropriate, or detrimental to a party's constitutional rights;
• in inter-group conflicts, where other state adjudication structures are inappropriate;
• in conflicts between a particular group and the government; and
• in other situations of social tension where mediation may serve a useful role.

Generally, intervention by the Commission should be at the request of both (or all) parties to a dispute, although in certain cases--such as those involving violation of the constitutional rights of one party--the Commission may intervene at the request of one of the parties. The Commission should encourage inter-group communication and joint problem solving by facilitating inter-faith and cross-cultural fora and activities. Finally, it should monitor potentially volatile situations with an eye to identifying strategies and opportunities for diminishing tensions and heading off violence.

We continue to believe that the Commission should be explicitly empowered to play a role in mediating disputes and facilitating the resolution of conflicts in situations where other institutions are either unavailable or inappropriate.

3.0 Appointment of Commissioners

3.1 Section 7 of the Bill establishes a procedure for the appointment of Commissioners. It introduces a new step in the process that was absent from earlier drafts: the appointment by the Minister of a selection panel to review the nominations received and to develop a short list of candidates to be forwarded to the President for his or her consideration.

3.2 Section 7(1)(a) states that all "organisations and individuals within the cultural, religious and linguistic communities of South Africa" must be invited to nominate eligible individuals to serve as Commissioners. We suggest that this provision deserves further consideration. If individuals are to be invited to nominate Commissioners, then the phrase "within the cultural, religious and linguistic communities of South Africa" is superfluous; presumably every individual in South Africa is in some cultural, religious or linguistic community. If, on the other hand, the objective is to ensure that the candidates proposed have connections with-or at least enjoy the support of-some organised cultural, religious or linguistic group in South Africa, then nominations should not be solicited from individuals. We believe that the latter approach would also discourage the public from deluging the selection panel with unsuitable nominees.

4.0 Termination of membership

4.1 Earlier versions of section 12 of the Bill stipulated that a Commissioner would be regarded as having resigned from the Commission if she or he accepted a nomination to a national, provincial or local legislative body or was appointed as an office bearer in a political party. (Alternatively, if a Commissioner held any of these offices at the time of her or his appointment, the person was to have 30 days in which to resign such office.)

4.2 This provision has been deleted from the Bill. We believe that it was a desirable mechanism to ensure the independence of the Commission and to minimise potential conflicts of interest. Consequently, we would urge the reinstatement of a slightly amended version of section 12(3), as it appeared in the fourth draft of the Bill:

A member shall be regarded as having resigned if that member-

1. accepts a seat in the National Assembly, the National Council of Provinces, a provincial legislature or a municipal council;
2. accepts an appointment as an office bearer of a political party; or
3. holds any position contemplated in subsection (a) or (b) at the time of his or her appointment as a member of the Commission and fails to resign that position within 30 days of having been appointed as a member of the Commission.

5.0 Cultural or other councils

5.1 Cultural councils can play an important role in promoting appreciation of and pride in our nation's rich and diverse heritage. Organs of state--and the Commission in particular--should create an environment conducive to the formation and activities of cultural councils and should encourage them to interact in a spirit of respect, co-operation and interdependence. It is less clear that statutory recognition of cultural councils is beneficial or even necessary to this process. However, section 185(1)(c) explicitly mandates the Commission "to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council for a community or communities in South Africa". Thus, the Bill cannot be silent on this matter.

5.2 A number of problems with earlier drafts of the Bill have been resolved. First, the Bill clarifies the process by which a council is recognised, transferring the power to recognise councils from the national consultative conference to the Commission itself [sec. 37(1)]. This seems a much more workable and efficient system. The Bill also makes the benefits of securing recognition more obvious: a recognised council has the right to send up to two delegates to any national consultative conference [sec. 26(1)(c)] and to apply for state financial assistance [sec. 37(2)].

5.3 However, section 36 of the Bill leaves a number of important questions unresolved, including:

• What defines a community? Are communities self-defining, or is it permissible to exclude people from a community if they do not meet certain criteria? Who decides?
• What constitutes an "other" council? Might this involve the recognition of religious councils, such as the SACC, the Muslim Judicial Council, or the Jewish Board of Deputies? What objective criteria will be used in deciding whether or not a council should be recognised by the Commission? Should cultural and "other" councils be subject to a uniform set of recognition criteria?

5.4 We are unable to propose legislative solutions to these questions, but feel that they must be considered by the Portfolio Committee. We are especially conscious of the fact that immigration and social forces are constantly creating new communities within our borders. The test of what constitutes a community must therefore be open and flexible rather than closed and rigid. Furthermore, the Commission's work must facilitate the formation of identity and consciousness amongst these groups, enabling them to play an active role in building a strong, multi-cultural nation.

6.0 Accountability of councils

6.1 The state must require that cultural and other councils demonstrate respect for fundamental constitutional principles of tolerance, democracy, transparency, and accountability. Furthermore, if recognised councils are to be eligible to receive public funds, then the state has a duty to ensure that they operate in a manner consistent with principles of sound financial management. The state has already established a mechanism to promote public accountability and sound financial management among civil society organisations through the Non-Profit Organisations Act (Act No. 71 of 1997). We therefore propose that section 37(2) be amended to read:

The Commission or any other organ of state may provide financial assistance to a cultural or other council only if --

1. it is recognised in terms of subsection (1); and
2. it has been registered in terms of section 13(5) of the Non-Profit Organisations Act, 1997 (Act No. 71 of 1997) and complied with any other requirements imposed in terms of that Act.

This formulation has the added advantage of making the disbursal of public funds-rather than an application for funding-contingent on satisfaction of the relevant criteria.