Kader Asmal Report on the Pan South African Language Board Presentation to the Portfolio Committee on Arts and Culture 24 October 2017

Background and Context 3rd Parliament established an Ad hoc Committee on the Review of Chapter Nine and Associated Institutions, in 2006, chaired by Professor Kader Asmal, which produced a report with recommendations (commonly referred to as Asmal Report). Office on Institutions Supporting Democracy

The Role of the Office on Institutions Supporting Democracy (OISD) The OISD was established to coordinate all interactions between the National Assembly and Institutions Supporting Democracy, who are accountable and report to the National Assembly. Office on Institutions Supporting Democracy

Methodology Followed by Ad Hoc Committee (page x) Each of the institutions supporting democracy were examined in respect of its: Constitutional and legal mandate and the institution’s understanding and interpretation of that mandate; Powers and functions; appointment procedures for office-bearers; public awareness of the institution; its relationship with Parliament, the Executive, and (other) Chapter 9 and associated institutions; Office on Institutions Supporting Democracy

Methodology Followed by Ad Hoc Committee Institutional governance arrangements; and its financial arrangements. A separate chapter in the report was devoted to each institution, followed by general conclusions, findings, and recommendations specific to the institution aimed at resolving identified problems and shortcomings. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy Constitutional and Legal Mandate of the Pan South African Language Board (PanSALB) The Pan South African Language Board established i.t.o. Chapter 1 of the Constitution-constitutional position differs from the Chapter 9 bodies The Board’s independence and authority not guaranteed in the Constitution; but these guarantees contained in legislation. No provision made in the Constitution for the Board to be accountable solely to the NA.   Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy Constitutional and Legal Mandate of the Pan South African Language Board (PanSALB) The Board is created in section 6(5) of the Constitution to assist the state to promote, and create conditions for the development and use of all official languages in South Africa, and the Khoi, Nama, San languages and sign language. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy General Conclusions by the Ad Hoc Committee on PanSALB (Chapter 9, page 142) The Committee drew the following general conclusions: a) Current and intended constitutional and legal mandates of the PanSALB still suitable for South Africa,the contribution of the Board to democracy is limited. b) Reorganisation of the Board to ensure a sharper focus on constitutional and legal mandates, avoid duplication of work carried out by the CRL Rights Commission and the Department of Arts and Culture. Office on Institutions Supporting Democracy

General Conclusions by the Ad Hoc Committee on PanSALB c)The appointments procedure for the Board requires revision, particularly to assert further the independence of the Board.   d) Institutional governance arrangements of the Board require attention, including establishing clear lines of accountability between the Board, the Chief Executive Officer and a stringent system for disclosure of interests.   Office on Institutions Supporting Democracy

General Conclusions by the Ad Hoc Committee on PanSALB e) The Board has a legal requirement to promote close co-operation with organisations performing similar work.   f) The relationship between the Board and the National Assembly, through the Portfolio Committee on Arts and Culture, is unsatisfactory. g) Funding of the Board appears to be adequate, the budget process arrangements, however, require amendment to assert further the independence of the Board. Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB a) Unnecessary, ineffective and costly duplication of work between the Board , CRL Rights Commission, the Board and the Department of Arts and Culture on language development needs. (page 129) Recommended that the Lexicography Units of the Board be transferred to the Department of Arts and Culture and that the Board be incorporated into the CRL as a joint activity. Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB b).... Consolidation of the two bodies as a joint activity should/can be achieved in a relatively short period. Legal advice obtained by the Committee suggests that the location of the Board as a joint activity within the Commission can be achieved without necessarily amending the Constitution. (page 129-130) The motivation for such a move can be summarised as follows:   Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB c) The Board has a constitutional duty to fulfil its functions in line with section 6(5). Parliament is accorded the discretion through legislation to provide for an institution that would fulfil these functions. (page 130) It would therefore be constitutionally tenable – but not ideal in the long term – for Parliament to adopt legislation that would combine the Board with the Commission if certain conditions are met: Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB Legislation to include, mandate of the new body, the duties accorded to the existing Board in the Constitution minus the functions transferred to the DAC- to promote and create conditions for the development and sustainability of all official languages, the Khoi, Nama , San languages and sign language. (page 130) Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB ii. Legislation to take cognisance that the independence and impartiality of the Commission is guaranteed in the Constitution. (page 130) Existing legislative arrangement, which does not allow the Board sufficient independence from the Minister and the Department, may not be replicated in the new legislation. The legislation must provide for a mandate for the new body in line with mandate as stated in the Constitution. Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB iii….. New legislation to provide for the appointment of a new body of Commissioners capable of fulfilling the mandate of both bodies. Must be broadly representative of the main cultural, religious and linguistic communities in South Africa already mirrored in the PanSALB Act, which suggests that the joining of the two could be done relatively speedily. (130) Office on Institutions Supporting Democracy

Specific Recommendations Related to PanSALB d) Members of the two institutions to work together to ensure a smooth transition to joint activity. A transition requires amendment of legislation. Each of the bodies nominate three members to form a task team with six members of the National Assembly (preferably members of the PC Arts and Culture) nominated by the Speaker in proportion to the various parties’ electoral strength to deal with the practical implementation of the proposal. (Page 130) The task team to report to the NA within one year of the adoption of this report with a practical plan for implementing this proposal. Such a report to contain draft legislation ready for submission to the Portfolio Committee on Arts and Culture. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy Common Recommendations Highlighted in Ad Hoc Committee Report (Chapter 2: pages 19-39) Six common recommendations highlighted in Ad hoc Committee Report relate to: Financial Matters and budget allocations; Appointments; Relationship with Parliament; Institutional governance arrangements; Accessibility; A Single Human Rights Body. Office on Institutions Supporting Democracy

Common Recommendations Highlighted, Budget matters and budget allocations a)“The budgets of all bodies identified by the Constitution and which are included in this review should be part of Parliament’s Budget Vote.” (chapter 2, page 20) Office on Institutions Supporting Democracy

Motivation for Delinking of ISD Budgets (chapter 2, page 20) Parliament’s Budget Vote would be a more appropriate location for the budgets of ISDs since they are accountable to NA, and Parliament maintains oversight over them. Parliament needs to establish/ identify appropriate structures and mechanisms to ensure an effective and efficient budget process. Office on Institutions Supporting Democracy

Motivation for Delinking of ISD Budgets Process to be negotiated with National Treasury, afford the ISDs opportunity to motivate their budget submissions directly to National Treasury before decisions on the budget allocations are taken. If agreed to, the programme within Parliament’s Budget Vote for these institutions would still fall under the Public Finance Management Act and would be subject to accountability and audit arrangements common to other organs of state. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy 2 . Appointments (pages 21-26) General recommendations to improve the appointment procedures include:   a) The Acts elaborating appointment and dismissal procedures should be reviewed to ensure: • Consistency with the provisions of the Constitution; • A degree of standardisation in the appointment and dismissal procedures across the institutions; • That the role of Ministers is removed; • Appropriate provisions are made for Parliament’s role in the appointment and removals processes. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy 3. Relationship with Parliament ( pages 26- 32): Address per functionary way of dealing with annual and special reports; Strengthen Portfolio Committees (sufficient budgets and capacity); Establish the OISD(coordinate activities, act as a clearing house, etc ); Accountability Standards Legislation. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy 4. Institutional governance arrangements, (pages 32-35): Legislation to be clear regarding the lines of authority between chairperson of a commission/or head of Institution, commissioners and the CEO; Adopt framework legislation by amendment of the Independent Commission for Remuneration of Public Office- Bearers Act; Introduce mechanisms for disclosure of interests (registers of disclosure, enabling legislation to be amended to deal with conflict of interests) Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy 5. Accessibility (pages 35-36 )   Explore innovative public outreach and awareness programmes; Use existing government infrastructure; Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy 6. Establishment of a Single Human Rights Body (page 37) a)The Committee proposed the establishment of a strengthened, highly organised and unitary body, called the South African Commission on Human Rights and Equality that will be better equipped to deal with the many challenges in promoting and protecting human rights in South Africa. Office on Institutions Supporting Democracy

Establishment of a Single Human Rights Body This newly established Commission/ Body should include the current SAHRC,CGE,CRL,PanSALB and the National Youth Commission (including children’s rights). (page 39) c) …dedicated commissioners for each of the following areas: gender, children and youth and people with disabilities. (page 40) Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy Establishment of a Single Human Rights Body e) Well funded, have the necessary legal power to promote human rights and address systemic violations of rights, operate as an advice centre for South Africans who otherwise would not have been able to challenge a breach of their rights. (page 40)   Office on Institutions Supporting Democracy

Motivation for a Single Human Rights Body The present institutional framework has created fragmentation, confounding the intention that these institutions would support the seamless application of the Bill of Rights. Office on Institutions Supporting Democracy

Motivation for a Single Human Rights Body Advantages to the establishment of an umbrella human rights commission: … A single human rights commission would be administratively more efficient, resulting in cost savings, more effective use of resources ,greater ability to deliver an effective service for a range of customers, and be more accessible to the public. Office on Institutions Supporting Democracy

Office on Institutions Supporting Democracy Conclusion Current processes underway- A Task Team to be established to examine feasibility of a Single Human Rights Body and Delinking of ISD Budgets from associated Departments. A report to be submitted to the Presiding Officers on its findings. We thank you for the opportunity to address the Portfolio Committee- Kaya Zweni Office on Institutions Supporting Democracy