THE appointment of five members of the Commission for Gender Equality (CGE) is now the subject of a Constitutional Court bid to declare the process invalid due to Parliament’s failure to facilitate reasonable public participation.
Corruption Watch has hauled National Assembly Speaker Thoko Didiza, President Cyril Ramaphosa, the CGE and the Information Regulator to the apex court over the appointment of five commissioners of the chapter nine institution in March last year.
The appointments questioned by the corruption-fighting non-profit organisation include that of Advocate Nthabiseng Sepanya-Mogale as chairperson as well as Advocate Thando Gumede, both full-time commissioners.
Three other commissioners – Bongani Ngomane, Prabashni Subrayan Naidoo, and Leonashia Leigh-Ann van der Merwe – were appointed part-time commissioners.
Sepanya-Mogale, Ngomane, Subrayan Naidoo, and van der Merwe are all expected to be in office until February 28, 2028, while Gumede’s term runs until the end of December 2027.
The five commissioners were appointed following interviews conducted by the National Assembly’s portfolio committee on women, youth, and persons living with disabilities.
However, Corruption Watch believes the portfolio committee failed to fulfil its constitutional obligation to facilitate reasonable public involvement in the process that ultimately led to the recommendation of the CGE commissioners for Ramaphosa to appoint.
”As a result of the National Assembly’s failure to facilitate reasonable public involvement, the subsequent appointment of members of the commission is unconstitutional and invalid,” the civil society organisation told the Constitutional Court.
According to Corruption Watch, Parliament has a constitutional obligation to afford the public a reasonable and meaningful opportunity to participate in the recommendation process and that its failure to do so undermines the CGE and its constitutional mandate in a society fraught with gender-based violence (GBV) and gender inequality.
It accuses the National Assembly of paying lip service to the need for public participation in the recommendation process after inviting written submissions on 24 shortlisted candidates in 2022.
Corruption Watch explained that its application is not about the suitability of the CGE commissioners appointed by Ramaphosa as of March 1, 2023.
”It (the application) raises important questions that require clarification regarding Parliament’s duties in recommendation processes to appoint the leaders of important constitutional institutions,” reads the application.
In addition, Corruption Watch states that the public and interested parties were not provided with reasonable opportunity to submit written representations as they were afforded only 14 days and to know about the shortlisted candidates after having been supplied with wholly inadequate information on each candidate.
The organisation added that the public and interested parties were also not given an opportunity to have an adequate say in a manner which may influence the recommendations, as they were provided with an arbitrary limit to any written representations made concerning a candidate.
Corruption Watch insisted that the National Assembly’s failure was not trivial
due to the country’s high levels of GBV wreaking unabated destruction, hate crimes and discrimination against members of the LGBTIQ+ communities, which often go unchecked.
”Women continue to bear the brunt of inequality, poverty, and unemployment. The commission holds the constitutional mandate to address these difficult challenges,” it explained.
In response, the National Assembly indicated that the Constitution does not prescribe how Parliament’s duty to facilitate public involvement is to be discharged and that the legislative arm of government is afforded a broad discretion to determine how to discharge its obligation to facilitate public involvement.
The National Assembly added that there was no basis for the apex court to usurp the function of the legislative branch of government and to second-guess the approach adopted by the portfolio committee to facilitate public involvement.
The Information Regulator filed a notice to abide by the Constitutional Court’s decision, but its chairperson, Advocate Pansy Tlakula, indicated that the portfolio committee could rely on the Protection of Personal Information Act to justify the publication of CVs of shortlisted candidates provided personal information such as their ID numbers and contact details is redacted.
The portfolio committee had justified its decision not to make candidates’ full CVs available as an attempt to comply with the act and balance the right to privacy against the right of access to information.
Last month, the Constitutional Court undertook to set down the matter in due course and issued a directive that Corruption Watch’s written arguments must be filed by next Friday, November 15, and the National Assembly’s the following week.