Irregular appointment of the NHREC: Implications for legitimacy and the path forward for South Africa’s health research ethics guidelines

Abstract

Background. Transparency is a fundamental value in South Africa’s constitutional and ethical framework, particularly in the appointment of statutory bodies such as the National Health Research Ethics Council (NHREC). The integrity of such appointments is crucial for maintaining public trust and ensuring that decisions are legally and ethically sound. An additional fundamental value is that those appointed be suitably qualified to perform their designated tasks. A transparent process alone is insufficient – the purpose of the process itself must also be respected. Transparency is directly linked to this second objective. The appointment of the NHREC has contravened the transparency of the process by not publishing the process and it has also circumvented the purpose of the process by appointing persons who have not been subjected to scrutiny.

Objectives. This article demonstrates that the NHREC was constituted in an irregular manner, with key procedural requirements, designed to promote transparency and the appropriateness of the appointees, being overlooked. The article also explores the possible impact of this irregular appointment on the authority and validity of the NHREC’s decisions.

Methods. The article conducts a detailed analysis of the statutory requirements governing the appointment of the NHREC, followed by an examination of the irregularities in the appointment process. The prejudice to stakeholders and the broader implications for governance are also considered.

Results. The investigation found that the NHREC’s appointment process did not follow statutory requirements, leading to a significant irregularity. This undermines the legitimacy of both the council and its decisions, as it denies stakeholders the right to participate in the nomination process, violating principles of participatory democracy. Additionally, the credentials and suitability of appointees were not properly evaluated. As a result, the third edition of the Ethics Guidelines (2024) is legally vulnerable and could face challenges.

Conclusion. Given these serious concerns about legitimacy, we recommend that the Minister of Health withdraws the third edition of the Ethics Guidelines and recommences the revision process once a properly constituted NHREC has been appointed. This approach restores the legitimacy of the NHREC and reaffirms the government’s commitment to transparency, accountability and participatory democracy in the governance of health research ethics in South Africa.