Professor Gerhard Erasmus, tralac Associate, reflects on the debate in South Africa on Parliamentary oversight

There have been some heated debates, in South Africa, about the nature of Parliament’s oversight function recently. Local newspapers have reported on a new “protocol for good practice and conduct” for African National Congress (ANC) parliamentarians distributed by ANC party whips. According to these reports this document is aimed “at easing tensions between its MPs and members of the executive, (but) has raised fears that it could lead to a weakened parliament that cannot hold ministers accountable for their actions” (Sunday Times, 5 May 2013). This protocol goes on to say that “questions for ministers should emanate from study groups, clusters and constituency work and should never be used to embarrass or ridicule ANC deployees”.

In another development the Law Society of South Africa has criticised MPs over their “inappropriate” questioning of Public Protector Thuli Madonsela at a recent hearing of Parliament’s Justice and Constitutional Development Committee. It pointed out that South Africa “is a constitutional democracy and not a parliamentary democracy. The Public Protector is accountable to the Constitution. We are of the view that the recent line of questioning by portfolio committee members, requesting the Public Protector to explain why she has investigated specific cases, is wholly inappropriate. Parliamentary oversight is limited to how the Office of the Public Protector uses public moneys and to protecting and rendering assistance to the Public Protector in dealing with complaints. Parliamentarians, therefore, need to act and speak with circumspection when raising questions as regards the Office of the Public Protector, lest they confuse the public and themselves of the hard-won freedoms that gave rise to our constitutional democracy…. this impacts on the independence, dignity and impartiality of her office and on her ability to investigate matters without fear, favour or prejudice; and exposes a new trend that is emerging among some politicians who are confusing truth with power” (LegalBrief, 16 May 2013).

The Law Society also had strong words for the Deputy Public Protector Kevin Malunga. It said that his action in seemingly “apologising” to Parliament for the responses of the Public Protector “can be described only as an attempt to ingratiate himself with those who may appoint the next Public Protector. This does not augur well for the future”. The values of the Constitution and the broad interest of the public have to be upheld and protected.

Parliamentarians have reacted strongly to this criticism. They defended the “protocol”; while the chair of Parliament’s Constitutional Development Committee pointed out that the oversight function of Parliament is not limited to “how the office of the Public Protector uses public moneys and to protecting and rendering assistance to the Public Protector in dealing with complaints”, as the Law Society argued. “We would, however, like to point out that this is not the wording of Section 181(5) of the Constitution. Section 181(5) of the Constitution provides: These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year. In addition, Section 9(2) of the Public Protector Act reads: Nothing in this Act shall prohibit the discussion of a matter being investigated or which has been investigated in terms of this Act by the Public Protector” (LegalBrief, 22 May 2013).

These are all very important issues. Debating them is good for democracy and for understanding the proper roles of Parliament, Chapter Nine institutions such as the Public Protector and how civil society should engage public institutions. This is vital for clarifying and enhancing the values underpinning the Constitution.

Over the last year tralac has published several discussion notes about parliamentary oversight. We have emphasized other aspects (such as the need for technical capacity) which we believe do not receive sufficient attention. We would like to repeat some of them and make additional observations in the light of the recent public debate.

• South Africa is indeed a constitutional state. The Constitution is supreme law; all organs of state, including Parliament, must respect the Constitution. Legislation or executive action in violation of the constitution is invalid and the Constitutional Court has the final word on this. However, this does not mean that robust politics or politicking involving all sides will or should be curtailed. The space for politics is in fact enlarged and constitutionally sanctioned.

• Politicians and political parties must honour and respect the Constitution as the very source of their mandates. Civil society is free to cast a watchful eye over all action, inaction or statements of Parliamentarians. Its criticism of state organs is legitimate and necessary. Parliamentarians are of course free to defend their views. What is more important is that they can justify their actions.

• The protocol on good practice and behaviour for ANC Parliamentarians provides that “questions for ministers should emanate from study groups, clusters and constituency work and should never be used to embarrass or ridicule ANC deployees”. The concern about sensitivities of party deployees is worrying; officials in public office need to be embarrassed and prodded into action. And hopefully the new flurry of studies which will enlighten ANC MPs will not be limited to party controlled study groups. Independent and well staffed research facilities are vital to make it possible for Portfolio Committees to engage members of the executive branch of government on the technical issues which are part and parcel of South Africa’s serious economic and developmental challenges.

• Opposition parties are small and face specific challenges when it comes to their role in parliamentary oversight. They can play a very constructive role in elucidating technical issues and in enhancing enlightened oversight by Parliament. One way of assisting them is to rethink the availability of research capacity for MPs generally. More independent resources, training and transparency are necessary.

• Parliamentary oversight is not primarily about high politics, as the public spats over the engagement with the Public Protector may suggest. This is in fact the easier part. The ability of Parliamentary Committees and of individual MPs to oversee the technical aspects of policy implementation which happens through international negotiations and the drafting of Bills and regulations is crucial when it comes to areas such as industrial development and international trade. This aspect of the oversight function is seriously neglected. The result is inter alia that many lofty statements from public fora (such as the recent World Economic Forum) on the importance of regional trade for South Africa’s economy are not debated and scrutinized in terms of de facto positions.

• It is often argued before Parliamentary Committees that certain policy positions have been cleared by Cabinet and that, by implication, the ensuing implementation is somehow beyond scrutiny. This cannot be true. Cabinet must decide on policy but the process does not stop there; neither does the oversight function. Cabinet can revisit its policy decisions or will provide subsequent guidance. It can and should be enlightened by public debate and scrutiny. (Just think of the many changes to the Secrecy Bill.) In areas such as international trade and regional integration the detail on how a general policy approved by Cabinet is given real content involves decisions by senior officials. They do not consult Cabinet on the detail. These important decisions are therefore subject to oversight; this is an ongoing process – just as policy development is.

• There should be more appropriate procedures to ensure regular updates by the executive to Portfolio Committees. The counter argument is that schedules are too full to allow oral hearings every time. This problem can to a considerable degree be addressed by submitting written reports; provided MPs know the topic under scrutiny, and where to prod for relevant answers.

• In many critical areas (international trade is an obvious example) the outcome of the process of successful policy implementation is the conclusion of an international agreement. The executive negotiates and signs international agreements. By the time Parliament performs its approval function (for one category of international agreements only) re international agreements it is extremely difficult to monitor and to oversee content or substantive decisions.

• Parliamentary Committees can perform their oversight function only when fully conversant with the technicalities, implications and subsequent policy developments in a particular area. Much more should be done to improve this ability. Public debate and governance will benefit directly.

Tell us what you think.