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5. Democratising the State and Society

5.1 PROBLEM STATEMENT

5.1.1The apartheid regime has been unrepresentative, undemocratic and highly oppressive. In past decades the state became increasingly secretive and militarised, and less and less answerable even to the constituency it claimed to represent.

5.1.2The legal and institutional framework we are inheriting is fragmented and inappropriate for reconstruction and development. It lacks capacity to deliver services, it is inefficient and out of touch with the needs of ordinary people. It lacks coordination and clear planning.

5.1.3The financing of development programmes under the apartheid state was wasteful, misdirected and mismanaged. There was corruption, and many state and development institutions carry over debts from the apartheid era with which the new government must deal.

5.1.4Apartheid patterns of minority domination and privilege are not confined to the state and parastatals. Every aspect of South African life is deeply marked by minority domination and privilege. A vast range of institutions in the private domain (in civil society) benefitted from apartheid, and also actively fostered and sustained it.

5.2 VISION AND OBJECTIVES

5.2.1The People shall govern. The RDP vision is one of democratising power. Democracy is intimately linked to reconstruction and development. We will not be able to unleash the resources, neglected skills and stunted potential of our country and its people while minority domination of state and civil institutions persists. Without thoroughgoing democratisation, the whole effort to reconstruct and develop will lose momentum. Reconstruction and development require a population that is empowered through expanded rights, meaningful information and education, and an institutional network fostering representative, participatory and direct democracy.

5.2.2Democracy requires that all South Africans have access to power and the right to exercise their power. This will ensure that all people will be able to participate in the process of reconstructing our country.

5.2.3Empowerment means, in the first place, the enfranchisement of all South Africans - one person, one vote - and the extension of equal citizenship rights to all. Deepening democracy will require ensuring that elected structures conduct themselves in an answerable and transparent manner. Clear Codes of Conduct must be established and enforced for all public representatives.

5.2.4Democratisation requires modernising the structures and functioning of government in pursuit of the objectives of efficient, effective, responsive, transparent and accountable government. We must develop the capacity of government for strategic intervention in social and economic development. We must increase the capacity of the public sector to deliver improved and extended public services to all the people of South Africa.

5.2.5The defence force and the police and intelligence services must be transformed from being agents of oppression into effective servants of the community, with the capacity to participate in the RDP. Our society must be thoroughly demilitarised and all security forces under clear civilian control.

5.2.6Democracy for ordinary citizens must not end with formal rights and periodic one-person, one-vote elections. Without undermining the authority and responsibilities of elected representative bodies (the national assembly, provincial legislatures, local government), the democratic order we envisage must foster a wide range of institutions of participatory democracy in partnership with civil society on the basis of informed and empowered citizens (e.g. the various sectoral forums like the National Economic Forum) and facilitate direct democracy (people`s forums, referenda where appropriate, and other consultation processes).

5.2.7A wide range of trade unions, mass organisations, other sectoral movements and community-based organisations (CBOs) such as civic associations developed in our country in opposition to apartheid oppression. These social movements and CBOs are a major asset in the effort to democratise and develop our society. Attention must be given to enhancing the capacity of such formations to adapt to partially changed roles. Attention must also be given to extending social-movement and CBO structures into areas and sectors where they are weak or non-existent.

5.2.8Numerous non-profit non-governmental organisations (NGOs) are also developing in South Africa. Many of these NGOs play an important capacity-building role in regard to CBOs and the development process. NGOs are also engaged in service delivery, mobilisation, advocacy, planning, lobbying, and financing. Thus NGOs have an important future role in the democratisation of our society. However, NGOs must also adopt transparent processes, and operate in a manner that responds, with accountability and democracy, to the communities they serve.

5.2.9Deepening democracy in our society is not only about various governmental and non-governmental institutions. Effective democracy implies and requires empowered citizens. Formal rights must be given real substance. All of the social and economic issues (like job creation, housing and education) addressed in previous chapters of the RDP are directly related to empowering our people as citizens. One further area is absolutely central in this regard - a democratic information programme.

5.2.10Ensuring gender equity is another central component in the overall democratisation of our society. The RDP envisages special attention being paid to the empowerment of women in general, and of black, rural women in particular. There must be representation of women in all institutions, councils and commissions, and gender issues must be included in the terms of reference of these bodies.

5.3 CONSTITUENT ASSEMBLY

5.3.1The new Constitution should be drawn up by the Constituent Assembly in an open and transparent manner. The new Constitution must reinforce the RDP, ensuring that equality of rights of citizens is not just formal, but substantive. The new Constitution should ensure that social, economic, environmental and peace rights are more fully embodied in the Bill of Rights.

5.3.2The Constitution must recognise the fundamental equality of men and women in marriage, employment and in society. There should be a continuous review of all legislation to ensure that this clause in the Constitution is not undermined. These principles must override customary law. Consideration should be given to the implementation of a constitutional provision for the calling of a referendum in order to overturn unpopular laws, and to ensure that certain laws get passed.

5.3.3The Constitution should permit the regulation of the use of property when this is in the public interest. It should also guarantee a right to restitution for victims of forced removals.

5.3.4The Constitution should provide for sufficient central government powers so as to coordinate and implement the RDP effectively.

5.4 NATIONAL AND PROVINCIAL ASSEMBLIES

5.4.1The National and Provincial Assemblies must establish legislation and programmes which ensure substantive equality rather than formal equality.

5.4.2There should be a review of the legislative procedures including a review of national and regional parliamentary sessions, operating procedures and the composition of standing committees, to promote an improved institutional framework for public decision-making. There should be a clear right of access to the parliamentary legislative procedures to allow inputs from interested parties. There should be a Code of Conduct for members of the National and Regional Assemblies.

5.5 NATIONAL AND PROVINCIAL GOVERNMENT

5.5.1South Africa has been divided into nine provinces. These provinces are at different levels of development and are not equally endowed with resources. The existing constitutional arrangements provided for by the Interim Constitution require that provincial levels of government and the national government develop methods for working closely together to ensure the implementation of the RDP. This will ensure that development in all these areas takes place evenly throughout the country and that minimum standards are attained.

5.5.2Grants-in-aid strategies must be built into the RDP to ensure that all provinces receive an equitable share of revenue collected nationally. The Financial and Fiscal Commission must determine criteria for the allocation of inter-governmental grants.

5.5.3The reincorporation of the TBVC states (Transkei, Bophuthatswana, Venda, Ciskei) and the self-governing territories requires urgent attention. All government departments at national level must be rationalised to end duplications due to racial divisions. Single ministries should be created at national and provincial level in each sector of operation. At the provincial level, government institutions must be constructed and rationalised out of existing regional structures. The role, function and mission of government departments should be reviewed with the aim of introducing a clear development focus for the democratic government administration. Policies of affirmative action, development and training must be applied in all areas.

5.6 SECURITY FORCES

5.6.1The defence force, the police and intelligence services must be firmly under civilian control, in the first place through the relevant civilian ministry answerable to parliament. These security forces must uphold the democratic constitution, they must be non-partisan, and they must be bound by clear codes of conduct.

5.6.2The size, character and doctrines of the new defence force must be appropriate to a country engaged in a major programme of socio-economic reconstruction and development. The rights of soldiers must be clearly defined and protected.

5.6.3The police service must be transformed, with special attention to representivity, and gender and human rights sensitivity. National standards and training must be combined with community-based structures to ensure answerability to the communities served.

5.7 THE ADMINISTRATION OF JUSTICE

5.7.1The system of justice should be made accessible and affordable to all people. It must be credible and legitimate. The legal processes and institutions should be reformed by simplifying the language and procedures used in the court, recognising and regulating community and customary courts, and professionalising the Attorney-General`s office. The public defence system must be promoted and the prosecution system reformed. The pool of judicial officers should be increased through the promotion of lay officials, scrapping the divided bar and giving the right of appearance to paralegals.

5.7.2The Industrial Court system should be restructured so that workers who have complaints against employers are able to have these disputes resolved in a cheap, accessible and speedy manner. Tripartite institutions should have a say in determining appointments to the Industrial and Labour Appeal Courts.

5.7.3A legal aid fund for women to test their rights in court must be established.

5.8 PRISONS

5.8.1The staffing of the prison service must be based on non-racial and non-sexist principles. Prison staff will need to be trained to reflect this approach and to transform the present military command structure of the prison service.

5.8.2Prisoners must enjoy human rights and must be fully protected by the Constitution.

5.8.3The prison service must play its part, not simply in restraining convicted persons, but in rehabilitating and training them. Adequate resources must be made available for the humane accommodation of prisoners.

5.8.4The law dealing with children in custody must be reformed. Practices which infringe even the existing laws (such as the accommodation of children and juvenile prisoners in cells with adults) must be ended.

5.8.5Pregnant women and mothers with small children in prison must be held in conditions which are appropriate for their specific physical and psychological requirements.

5.8.6Disciplinary codes within prison must be changed, and forms of punishment which infringe basic human rights (solitary confinement and dietary punishment) must be ended.

5.8.7The public has the right to be informed about prison conditions. The Prison Act must, accordingly, be substantially reformed.

5.8.8Prisons must be monitored by an independent prison ombuds, appointed by the State President, but working independently of ministerial control.

5.9 RESTRUCTURING THE PUBLIC SECTOR

5.9.1South Africa has a large public sector with many resources. The public sector consists of the public service, the police and defence forces, the intelligence service, parastatals, public corporations and advisory bodies, which are together some of the most important delivery and empowerment mechanisms for the RDP. Staffing levels in and budgetary allocations to government departments and institutions must match the requirements for service delivery, and the operational requirements for women`s empowerment, within the constraints of the budget. A defined quota of all new employees should come from groups that were disadvantaged on the basis of race and gender, and all employees should be given access to appropriate training and support systems. This should be evaluated each year to determine the progress made and identify problems which arise. By the turn of the century, the personnel composition of the public sector, including parastatals, must have changed to reflect the national distribution of race and gender. Such progress will enhance the full utilisation of the country`s labour power and productivity.

5.10 THE PUBLIC SERVICE

5.10.1The Public Service Commission established in terms of the Interim Constitution must be responsible for matters relating to appointments, promoting efficiency and effectiveness in departments, establishing and monitoring a Code of Conduct for the public service, and introducing a programme of affirmative action and other appropriate techniques to eliminate historical inequities in employment. The Code of Conduct must incorporate the principles of the new South African public service as outlined in the RDP. The ethos should be professional, in the most positive sense of the word; the public service must internalise the concept of `serving the people`. This Code should be enforced and annual evaluation of personnel should take into account compliance with the Code.

5.10.2The public service should be composed in such a way that it is capable of and committed to the implementation of the policies of the government and the delivery of basic goods and services to the people of the country. In particular, priority must be given to developing the mechanisms for implementing the policies, recommendations and directives of the restructured Public Service Commission and the RDP.

5.10.3While the public service must be based on merit, career principles, suitability, skills, competence and qualifications, these standards should not be interpreted to further minority interests, as in the past. An extensive programme of affirmative action must be embarked on to achieve the kind of public service that is truly reflective of our society, particularly at the level of management and senior employees. Such an affirmative action programme must include training and support to those who have previously been excluded from holding responsible positions. Within two years of the implementation of the programme, recruitment and training should reflect South African society, in terms of race, class and gender. Mechanisms must be put in place to monitor implementation of the programme. A programme of monitoring and retraining for all those willing to serve loyally under a democratic government should be instituted.

5.10.4The Civil Service Training Institute must be transformed to train and retrain public service employees in line with the priorities of the RDP. One of the priorities of this Institute must be to ensure that a cadre of public servants is developed to transform the public service effectively, with attention to excellence and high levels of service delivery. The Institute must be provided with the necessary resources and cater for at least four levels of training: lateral entry for progressive academics, activists, organisers and NGO workers; top-level management development; promotion within the public service, and retraining of present incumbents of posts.

5.10.5A sound labour relations philosophy, policy and practice is an essential requirement for building a motivated, committed cadre of personnel who have a clear vision of their development goals. Labour relations policy must also provide for dealing systematically with corruption, mismanagement and victimisation in public institutions. Labour policy must permit the participation of public sector workers and their organisations in decision-making at various levels in this sector. This will require amendment of existing labour legislation and a review of management practice in the public sector.

5.11 PARASTATALS AND STATE DEVELOPMENT INSTITUTIONS

5.11.1Parastatals, public corporations and advisory boards must be structured and run in a manner that reinforces and supports the RDP. Civil society must be adequately represented on the boards of parastatals and public corporations. Institutions must be transparent and open in both structure and decision-making. They should act within the framework of public policy and there must be a duty to inform the general public as well as to account to parliament.

5.11.2The statutory bodies must be independent of government departments in the sense that they should not be directly part of any government department. They should be controlled by general government policies and by their governance councils. The emphasis should be on creating stable long-term policies rather than volatile short-term policy. To ensure effective civil participation in these bodies, governance councils should be composed of mandated representatives of appropriate organisations, not appointed individuals.

5.11.3All bodies must run on full cost accounting. All subsidies paid or received must be the result of an explicit and transparent decision. In addition, parastatals which receive 20 per cent of their funding or R20 million (whichever is less) from government, should submit an annual director`s report to the relevant ministry, showing how allocated funds were used given the objectives agreed to. Every ministry and parastatal should have an office that periodically reviews its activities and measures performance as well as appraising staff performance. Rationalisation of the activities and resources of parastatals should take place to promote efficiency and effectiveness. Parastatals should have a public consciousness.

5.11.4Control of funds set aside specifically for development purposes (be they from contracts, the democratic government or the public domain) should vest in a competent and legitimate government agency, which could include representation from civil society.

5.12 LOCAL GOVERNMENT

5.12.1Local government is of critical importance to the RDP. It is the level of representative democracy closest to the people. Local government will often be involved in the allocation of resources directly affecting communities. Local government should be structured on a democratic, non-racial and non-sexist basis. The Local Government Transition Act provides for the start of this process with the establishment of transitional councils, and the creation of a framework for the first non-racial local government elections.

5.12.2The constitutional and legal arrangements, which provide for councils of local unity during the transitional phase, should be removed from the final Constitution to make local government more democratic. Existing local government legislation, including the Local Government Transition Act and the Provincial Ordinances, should be amended or repealed where necessary by a competent legislative authority.

5.12.3An estimated 800 segregated local authorities must be amalgamated into approximately 300 new local authorities with non-racial boundaries. The existing grading system for local authorities should be revised to reflect the needs of people, and not just existing consumption of services.

5.12.4The demarcation of boundaries of local authorities should ensure that informal settlements on the outskirts of towns and cities, and urban settlements displaced behind homeland boundaries, are incorporated into the jurisdiction of new local authorities.

5.12.5Elected local government, with responsibility for the delivery of services, should be extended into rural areas, including traditional authority areas. Rural district councils that incorporate a number of primary local councils must have a key role in rural local government.

5.12.6In major urban centres, strong metropolitan government should be established to assist in the integration and coordination of the urban economies.

5.12.7Separate budgets and financial systems must be integrated on the basis of `one municipality, one tax base`. The arrears and debts of the black local authorities, estimated at R1,8 billion, should be written off by a competent legislature.

5.12.8All local authorities should embark on programmes to restore, maintain, upgrade and extend networks of services. Within a local authority, the total body of consumers should be responsible for the cost of the service, including capital improvements, thus allowing for cross-subsidisation of new consumers. Tariff structures should be structured on a progressive basis to address problems of affordability. Within this framework, all consumers should pay for services consumed.

5.12.9Local authorities should be assisted to deal with the existing backlog of municipal services through inter-governmental transfers from central and provincial government, according to criteria established by the Financial and Fiscal Commission.

5.12.10Separate local authority administrations must be amalgamated, reorganised and rationalised, after consultation between employer and employee bodies. A centralised system of collective bargaining for municipal employees should be established.

5.12.11The Training Board for Local Government Bodies should be restructured to provide more effective training for employees of local authorities. The entrance criteria of professional bodies such as the Institute of Town Clerks and the Institute of Municipal Treasurers and Accountants should be broadened to ensure better access for all South Africans to these professions.

5.12.12At local government level a women`s portfolio should be established with powers to scrutinise local authority programmes and budgets for gender sensitivity. Local authorities can play a role in the implementation of affirmative action with the private sector through special criteria for local government contracts.

5.12.13A developmental culture among local government administrations should be encouraged. The actions of councillors and officials should be open and transparent, with councillors subject to an enforceable Code of Conduct.

5.12.14Local authority administrations should be structured in such a way as to ensure maximum participation of civil society and communities in decision-making and developmental initiatives of local authorities.

5.13 CIVIL SOCIETY

5.13.1Apart from the strategic role of government in the RDP, mass participation in its elaboration and implementation is essential. Within the first nine months of 1994 the RDP must be taken to People`s Forums, rallies and meetings in communities.

5.13.2In the course of 1994, trade unions, sectoral social movements and CBOs, notably civics, must be encouraged to develop RDP programmes of action and campaigns within their own sectors and communities. Many social movements and CBOs will be faced with the challenge of transforming their activities from a largely oppositional mode into a more developmental one. To play their full role these formations will require capacity-building assistance. This should be developed with democratic government facilitation and funded through a variety of sources. A set of rigorous criteria must be established to ensure that beneficiaries deserve the assistance and use it for the designated purposes. Every effort must be made to extend organisation into marginalised communities and sectors like, for instance, rural black women.

5.13.3Trade unions and other mass organisations must be actively involved in democratic public policy-making. This should include involvement in negotiations ranging from the composition of the Constitutional Court to international trade and loan agreements. Education about trade unions and other mass organisations should also be promoted in school curricula and through publicly-funded media.

5.13.4Delivery or enforcement mechanisms for social and economic rights must not focus only on the Constitution, courts and judicial review, but must include agencies which have the involvement of members and organisations of civil society as means of enforcing social justice. In this regard, a revamped Human Rights Commission, with wider popular involvement, should have its mandate extended to ensure that social and economic rights are being met.

5.13.5Institutions of civil society should be encouraged to improve their accountability to their various constituencies and to the public at large. There should be no restriction on the right of the organisations to function effectively. Measures should be introduced to create an enabling environment for social movements, CBOs and NGOs in close consultation with those bodies and to promote donations to the non-profit sector. This should include funding of Legal Advice Centres and paralegals.

5.13.6The rights of individual people should be protected and guaranteed in the processes of government. Groups and communities should be encouraged to contribute to the reconstruction and development process. Parents should be empowered through school governance, residents through residents` associations, etc.

5.13.7Multipartite policy forums (like the present National Economic Forum) representing the major role players in different sectors should be established and existing forums restructured to promote efficient and effective participation of civil society in decision-making. Such forums must exist at the national, provincial and local levels.

5.13.8Forums such as the National Economic Forum constitute important opportunities for organs of civil society to participate in and influence policy-making. Similarly they provide the democratic government with an important mechanism for broad consultation on policy matters. They need to be assisted (and sometimes restructured) to improve their effectiveness, representivity and accountability.

5.14 A DEMOCRATIC INFORMATION PROGRAMME

5.14.1Open debate and transparency in government and society are crucial elements of reconstruction and development. This requires an information policy which guarantees active exchange of information and opinion among all members of society. Without the free flow of accurate and comprehensive information, the RDP will lack the mass input necessary for its success.

5.14.2The new information policy must aim at facilitating exchange of information within and among communities and between the democratic government and society as a two-way process. It must also ensure that media play an important role in facilitating projects in such areas as education and health.

5.14.3The democratic government must encourage the development of all three tiers of media - public, community and private. However, it must seek to correct the skewed legacy of apartheid where public media were turned into instruments of National Party policy; where community media were repressed; where private media are concentrated in the hands of a few monopolies, and where a few individuals from the white community determine the content of media. New voices at national, regional and local levels, and genuine competition rather than a monopoly of ideas, must be encouraged.

5.14.4An affirmative action programme, consistent with the best experiences in the world, must be put into place to empower communities and individuals from previously disadvantaged sectors of society. This must include: mechanisms to make available resources needed to set up broadcasting and printing enterprises at a range of levels; training and upgrading, and civic education to ensure that communities and individuals recognise and exercise their media rights.

5.14.5Measures must be taken to limit monopoly control of the media. Cross-ownership of print and broadcast media must be subject to strict limitations determined in a public and transparent manner. The democratic government must encourage unbundling of the existing media monopolies. This includes monopolies in the areas of publishing and distribution. Where necessary, anti-trust legislation must be brought to bear on these monopolies.

5.14.6The democratic government must set aside funds for training of journalists and community-based media and, at the same time, encourage media institutions to do the same.

5.14.7To ensure the free flow of information - within the broad parameters of the Bill of Rights - the Freedom of Information Act must be broadened.

5.14.8The democratic government must have a major role to play in the introduction of a new information policy. This must, however, be limited to facilitation rather than dabbling in the editorial content of media enterprises. Further, a deliberate policy must be followed to prevent unwarranted state intervention in levelling the media playing field or in preserving privileged status for government information. The Bill of Rights and, if necessary, legislation will be crucial in this regard.

5.14.9The South African Communications Services (SACS) must be restructured in order to undertake two important tasks: the provision of objective information about the activities of the state and other role players, and the facilitation of the new information policy.

5.14.10To carry out these two functions, two distinct structures will be necessary. At the same time, the information arms of various ministries, especially those dealing with reconstruction and development, must be strengthened.

5.14.11All these measures require institutional mechanisms independent of the democratic government and representative of society as a whole. Some of the more crucial ones are:

5.14.11.1Information Development Trust: made up of civil society, media role players, especially community-based ones, the democratic government and political interests, to work out detailed criteria and mechanisms for assisting relevant media enterprises.

5.14.11.2Independent Broadcasting Authority (IBA): appointed in a transparent and participatory process. Made up of persons of integrity and experts in the broadcasting field. Responsible for the issuing of broadcasting licences and other broadcasting regulations.

5.14.11.3Public Broadcaster Board: appointed in a similar manner to give broad direction to the public broadcaster, without undermining editorial independence.

5.14.11.4Voluntary regulatory mechanisms: for private media enterprise, and representative of all role players, including media workers. Within broadcasting, the voluntary regulations should be within the framework provided by the IBA.

5.14.11.5Independent unions of media workers and associations of owners of media institutions.