Protecting chapter 9 institutions and the critical role they play in strengthening democracy

As we celebrate 30 years of constitutional democracy in 2024, it’s important to take a few steps back and reflect on the strides we have made as a country, as well as the setbacks that have impeded progress in certain aspects of our democracy.

Our Constitution, hailed as one of the best in the world, created institutions – commonly known as “chapter 9 institutions” – to protect and enhance constitutional democracy. 

These institutions include the Electoral Commission of South Africa (IEC), the South African Human Rights Commission (SAHRC), the Commission for Gender Equality, the Public Protector, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and the Auditor-General. All six of them are a distinct and necessary part of building a healthy, functional democracy. 

These institutions have a legal duty to be impartial and to exercise their duties without fear, favour or prejudice. They carry the duty of strengthening constitutional democracy in the Republic, and part of this duty should entail the ability to make binding decisions and recommendations for them to have an effective mandate. 

The recent national and provincial elections tested the tenacity of the IEC during not only the most contested but also the most difficult elections in the country since the advent of democracy. Not only did we experience split groups and factions within the traditional well-known political parties, but we also saw a number of independent candidates standing for election for the first time.

Having observed the elections as accredited observers, we can confirm the elections were free, fair and credible, but for a few administrative glitches. It is then safe to conclude that the elections were successful.

The IEC delivered on its mandate, despite numerous contestations from certain political parties. So how can the IEC perform better for the next elections, starting with the municipal elections in 2026? 

The question is not how but if the IEC is sufficiently capacitated to perform better in the next round. Unfortunately, not yet. The challenges from these elections relate to systemic issues that cannot be solved in a few years. Importantly, some of the challenges are also not just for the IEC to solve alone, but for ordinary citizens, the electorate and importantly our political leaders. 

Perceptions and a shift in mindset is what is required to contribute to transforming the narrative on the performance of institutions such as the IEC. The narrative about the credibility, effectiveness and strength of our institutions of democracy is important as it can either make or break these chapter 9 institutions. 

The SAHRC, for instance, is empowered in terms of the Constitution to take steps to secure appropriate redress where human rights have been violated. A calculated reading of this provision by the Constitutional Court could mean that the SAHRC is, in some instances, empowered to make binding recommendations in fulfilling its constitutional mandate. The question of the binding nature of the SAHRC is the subject of a pending court challenge. 

However, even in the absence of a validation or rubber stamping from a court, citizens, and importantly our leaders in government, political party leaders and all those aspiring to be part of the governing body in the country, ought to shift their mindset concerning the authority and powers of institutions supporting democracy to avoid the erosion of our constitutional democracy.

While contestations are appropriate in a democracy, we need to guard against intruding on the respective mandates of these institutions as such intrusion has the effect of weakening the institutions, hampering their ability to perform. 

Credible institutions