Two new laws to change South Africa’s Constitution face pushback

The Department of Justice and Constitutional Development is opposing two private members’ bills to change South Africa’s constitution to establish new Chapter 9 entities.

Chapter 9 institutions are state institutions that support constitutional democracy, such as the Public Protector or Human Rights Commission. They are independent, impartial and accountable to the National Assembly.

Two private members’ bills, both submitted by the Democratic Alliance, aim to create two new Chapter 9 institutions, specifically the Cybercrime Commissioner and Anti-Corruption Commission.

However, the DoJ pointed to big problems with the proposed bills, mainly around the lack of state funding available to establish two new structures and the fact that both would duplicate roles and responsibilities that are already accounted for in other existing structures.

New Cybercrime Commission

The first bill, the Twentieth Constitutional Amendment Bill, was introduced in 2023 and aims to establish a new commissioner in South Africa to deal specifically with cyber-related issues.

However, as the DoJ and Information Regulator of South Africa pointed out in their response to the bill, the protection of private data is already within the scope of the Information Regulator.

Introducing the bill in 2023, the DA argued that cyber security and cyber threats were not in play at the adoption of the Constitution in 1996 but have since become increasingly central to government functioning and the provision of services to citizens.

“Proper cyber security is also fundamental to safeguarding many of the rights enshrined in the Bill of Rights and safeguarding our critical infrastructure and democracy,” it said.

The party noted that the personal information of individuals in possession of state departments was not being sufficiently protected against cyber-attacks and that these attacks placed private and public information at risk.

It said the state-owned entities currently tasked with addressing cybercrime are “chronically underfunded or lack proper expertise to perform their function adequately”.

However, the DoJ hit back, saying that creating an entirely new entity would not solve these problems.

In fact, it would make it worse by draining state resources while duplicating functionality in the Information Regulator and State Security Agency.

The Information Regulator said that it is currently mandated to oversee the Protection of Personal Information and Promotion of Access to Information Acts (POPIA and PAIA), and that a new commissioner would not add anything to this oversight.

Over time, such a structure would replace the regulator altogether, which would go against the Constitutional mandate that it exists to protect these rights.

It argued that its mandate already gives it certain oversight when it comes to cybercrime and said this mandate should rather be expanded to include more reach to take on the problem.

Taking it further, the regulator said that instead of changing the constitution to create a new Cyber Commissioner, parliament should consider making the Information Regulator a Chapter 9 institution instead, giving it more independence.

“The Regulator proposes that instead of amending the Constitution to include the Cybersecurity Commission, the Constitution should be amended to include the Regulator, and its mandate should be expanded to include cyber security. This will be in line with international standards,” it said.

Anti-Corruption Commission

The Twenty-First Constitutional Amendment Bill was introduced by the DA in 2024 and has faced a similar response from the DoJ.

The bill aims to establish an official Anti-Corruption Commission with the power to institute criminal proceedings on behalf of the State regarding incidents of serious corruption and high-level organised crime.

As noted by the DoJ, however, this would be treading on the toes of the National Prosecuting Authority and other crime-fighting bodies like the Hawks and SAPS.

It also argued that such an entity would not qualify as a Chapter 9 institution, as the bill posits.

“The current Chapter 9 institutions perform what could be referred to as “watchdog” functions with powers of investigation to support their work.

“They are broadly speaking institutions supporting constitutional democracy,” the DoJ said.

The proposed Chapter 9 institution would be empowered to investigate high-level corruption, among others, based on a “perceived inability of existing institutions to do so”.

“It is strictly speaking not a ‘watchdog’ entity supporting constitutional democracy as with the other institutions such as the Human Rights Commission and the Public Protector.

“Setting out its powers in national legislation will not be sufficient to address this concern as its powers are primarily to perform functions that fall within the administrative sphere of government,” the department said.

As with the Cybercrime Commission, setting up an entirely new structure with parallel and duplicate functions again raises the cost question. The DoJ suggested that the National Treasury be consulted.

Ultimately, however, it argued that, again, work was already being done to tackle corruption through existing structures, including the National Anti-corruption Advisory Council (NACAC) overseeing the National Anti-corruption Strategy.