The brewing tug-of war between South Africa's Chapter 9 Institutions: The Public Protector vs the Independent Electoral Commission

• Author: Nomthandazo Ntlama
• Position: B. Juris, LLB, University of Fort Hare
• Pages: 13-21

JICLT

Journal of International Commercial Law and Technology

Vol. 10, No.1 (2015)

13

The brewing tug-of war between South Africa’s Chapter 9 Institutions:

The Public Protector vs the Independent Electoral

Commission

Nomthandazo Ntlama*

Abstract: The release of the Public Pr otector’s final report on the allegations of

maladministration against the chairperson of the Independent Electoral Commission has put

under the microscope the development of the principles of the rule of law within the context

of the powers and functions of these institutions in furthering the objectives of the new

constitutional dispensation. It generated debates on whether these institutions are fulfilling

their duty of promoting constitutional democracy or are at each other’s throats. These

debates rests on the interrelationship that exist between the principle of accountability an d

the legitimate r ole that is played by the institutions themselves in ensuring the proper and

effective strengthening of South Africa’s democracy. The debates also focus on the

government’s commitment to the advancement of the r ule of law in the regulation of state

authority.…………………………………

Against this background, this paper examines th e application of the prin ciple of the rule of

law within the framework of Chapter 9 institutions with particular reference to the Public

Protector and the Independent Electoral Commission. Such undertaking is motivated by the

recent release of the report as indicated above which reinforced the objective of having

established the ‘anti-corruption and ethical institutions in bringing about good governance’

who subsequently became embroiled in a “cat-fight” over the legitimacy of their powers.

The intention is not to analyse the constitutional status or history of t hese instit utions but

rather on the factors that h ave the potential to compromise their integrity and legitimacy in

upholding the principles of the rule of law as foundational values of the new dispensation.

1. Introduction

The Constitution of th e Republic of S outh Africa 1996

1

has sin ce the attainment of democracy provided

an important feature of the new dispensation by establishing Chapter 9 institutions

2

in order to ensure the

advancement of South Africa’s democratic character in the regulation of state authority. These institutions

are empowered to be independent and expected to be impartial in the exercise of their functions in order

to provide an effective oversight role of both public and private spheres in the regulation of their

authorities. The Constitution has further provided an opportunity for ordinary citizens to get redress

against maladministration in the exercise of government authority especially in a country like ours that

emerges from a system that was characterised by oppression of its general populace and lacked

accountability in the enforcement of both the state and government conduct

3

.

 B. J uris, LLB (University of Fort Hare), Certificate in Comparative Human Rights, LLM (University of

Stellenbosch), LLD (University of South Africa).

1

Hereinafter referred to as the “Constitution”.

2

This does not necessarily mean that they are 9 (nine) but six and are included in Chapter 9 of the Constitution and

hereinafter referred to as “institutions strengthening constitutional democracy in the Republic”.

3

See the Parliament of the Republic of South Africa (2007): Report of the ad hoc Committee on the Review of

Chapter 9 and Associated Institutions. A report to the National Assembly of the Parliament of South Africa, Cape

Town, South Africa at 3. See also Azanian Peoples Organization v President of the Republic of South Africa 1996 (8)

BCLR 1015 (CC). Mahomed DP pointed out that: “For decades South African history has been dominated by a deep

conflict between a minority which reserved for itself all control over the political instruments of the state and a

majority who sought to resist that domination … The legitimacy of law itself was deeply wounded as the country

haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation,” at para

1.