Legislative oversight must be invigorated

Douglas Gibson presses for more vigorous defence of legislative independence by Parliament.

Summary - The South African parliament is facing a credibility crisis. The wide reportage of MPs’ misconduct has no doubt contributed to the sharp increase in voter apathy. More serious, although less widely reported, is the steady marginalisation of parliament’s oversight role by the African National Congress (ANC).

What follows is the Democratic Alliance’s analysis of the marginalisation of parliament.

The first challenge facing parliament is the increasing dominance of the ruling party and its co-option of an increasingly fragmented parliamentary opposition. The proliferation of small parties with little hope of building a strong alternative to the ANC has provided fertile ground for the politics of co-option to flourish, and the ANC’s strategy has brought it rich rewards. In contrast to the DA, whose approach has been dubbed robust by some political analysts, most opposition parties have proved weak in the face of ANC power.

The ANC’s incorporation of the Leninist credo of democratic centralism means that there is no room for dissent once a decision has been reached by the leadership.

The closed-list proportional representation electoral system exacerbates the problem by creating a class of ANC MPs who depend on their party bosses for political survival.

The ANC policy of cadre deployment – to parastatals, the bureaucracy, the police service, the army, the judiciary, provincial government and Luthuli House – poses another challenge.

It is possible for parliamentary rules and procedures to maximize oversight. But by altering the rules of question time in 2000, the ANC has achieved the opposite.

Between 1994 and 2000, question time in the National Assembly was a fairly lively affair, with MPs given the opportunity to engage in interpellations (15-minute ‘mini-debates’) as well as to ask questions for oral reply and written response. Questions were placed on the order paper according to their time of arrival.

The ANC has since used its majority in the joint rules committee to abolish interpellations and introduce a quota system. Questions are now apportioned according to how many seats a party holds in the legislature. Question time is dominated by ANC MPs who typically ask “sweetheart” questions that give the minister the platform to present his or her portfolio in glowing terms.

If question time has degenerated into little more than a chance for the government to showcase its achievements, the committees — which have extensive, constitutionally mandated oversight powers — have on occasion proved equally toothless in the face of executive power.

Aside from direct interference by the executive in their work, committees are constrained by a lack of resources and a poor understanding of their role as oversight bodies. And ministers are not compelled to report regulations back to the legislature, raising the spectre of legislation by regulation.

The DA has developed 17 proposals that we believe would go some way to bolstering parliament’s ability to oversee the executive. They are contained in a DA discussion document entitled From Lapdog to Watchdog: Giving Parliament Back its Teeth.

Some of the more important proposals are:

Legislation that prohibits MPs and ministers from being employed by parastatals or government agencies for two years after leaving parliament.
Questions to be allocated on a first-come-first-served basis, instead of in proportion to party strength.
MPs should be required to go through rigorous training specifically on oversight.
Every MP should be assigned his or her own researcher, as in many other legislatures around the world.
Committees should be compelled to submit a report specifically on their oversight activities.

The South African parliament is facing a credibility crisis. In 1995, only 45 per cent of respondents participating in the ‘Afrobarometer’ survey trusted parliament either “most of the time” or “almost all of the time”; by 2002, the figure had dropped to 31 per cent.

Reports since then of dozy MPs, opportunistic floor-crossers, parliamentary travel-voucher fraudsters and MPs failing to declare their assets are unlikely to have improved parliament’s public image.

The wide reportage of MPs’ misconduct has fired up the public’s frustration at parliament and no doubt contributed to the sharp increase in voter apathy between 1999 and 2004.1 More serious, although less widely reported, is the steady marginalisation of parliament’s oversight role by the African National Congress (ANC), a process that has accelerated in the Mbeki era.

Between 1994 and 1996, parliament was principally concerned with negotiating the final constitution. Between 1996 and 1998, parliament began earnestly passing legislation to replace apartheid laws. It was only in 1999 that parliament began to seriously consider its constitutionally-mandated oversight role.

The ad hoc parliamentary joint sub-committee on oversight and accountability duly commissioned a report on oversight and accountability. The resultant “Corder Report” was discussed by the ad hoc committee, which proposed some technical changes before passing it on to the joint rules committee in 2002.

In August 2004 a multi-party task team was set up to implement the recommendations of the report. The establishment of the task team, although a somewhat long time in coming, is a most welcome development and its recommendations may go some way to strengthening parliamentary oversight.

What follows is the Democratic Alliance’s analysis of the marginalisation of parliament and will serve as our point of departure on the oversight task team. We also put forward key proposals that we believe would go some way to strengthening parliamentary oversight.

The first challenge facing parliament is the increasing dominance of the ruling party and its co-option of an increasingly fragmented parliamentary opposition. The concomitant decrease in the opposition’s vote-share has been accompanied by its increasing fragmentation. In 2004, 11 opposition parties won a combined 121 seats in the National Assembly compared with the 148 seats shared by only 6 parties in 1994. The DA’s occupancy of 50 seats after the 2004 general election left only 71 for the remaining 10 parties.

The proliferation of small parties with little hope of building a strong alternative to the ANC has provided fertile ground for the politics of co-option to flourish. In a 2004 ANC discussion document entitled Strategic and Tactical Approaches to the Opposition, the ANC explicitly set out its strategy to co-opt opposition parties “even in instances where there may be fundamental differences.”2

The ANC’s strategy has brought it rich rewards so far. The New National Party has merged with the ANC, while the leader of Azapo is a cabinet minister and a member of the UDM is a deputy cabinet minister. Speculation in the media indicates that there is every prospect that the PAC will join the ANC sooner or later.3

The remaining parties, although not co-opted by the ANC, are wont to tiptoe around it in the name of ‘consensus’ or ‘co-operative’ politics.

The Freedom Front Plus champions a “niche strategy” that lobbies the government in the interests of the Afrikaans community.4 In attempting to win concessions from the government, the FF Plus has become less and less outspoken in its opposition to the ANC.

The Independent Democrats — when not wracked by internal disputes — espouse what they describe as a “fresh approach” to opposition politics.5 The exact details of the approach are vague except that the ID tends to expend more energy attacking the DA than holding the government to account.

Perhaps the best indication that the smaller opposition parties do not have the will to stand up to the ANC in parliament is their voting record.

In 2004, the FF Plus and the African Christian Democratic Party both supported 30 out of the 34 budget votes.
The ID supported 33 out of 34, while the NNP, the PAC and the UDM supported all 34 budget votes.
The DA supported 23, dissented on 9 and called for a division on 2.

In contrast to the DA, whose approach has been dubbed robust by some political analysts, most opposition parties have proved weak in the face of ANC power. That would be less of a problem for parliamentary oversight if a significant number of independent voices existed among ANC MPs.

The ANC however remains as ‘disciplined’ as it was in its days as a liberation movement. As former ANC MP Andrew Feinstein puts it:

“… The culture, the almost organic culture, of the political party that one is talking about, is extremely important as well on these matters. I think that we all know that the ANC in its very proud history of struggle developed a culture (of disciplined adherence to the party line) during a period of exile, a period of extensive underground work, and obviously an extraordinarily repressive environment. To have developed this type of culture in those circumstances and then to find oneself as the majority party in a liberal democracy, I think is inevitably going to create tensions.”6

The incorporation of the Leninist credo of democratic centralism means that there is no room for dissent once a decision has been reached by the ANC leadership — this principle serves the ANC as well now as it did in the struggle years.

The ANC’s emphasis on party loyalty at the expense of parliamentary oversight was first highlighted in 1994 when then ANC secretary general Cyril Ramaphosa compelled all ANC MPs to sign a code of conduct which forbade any “attempt to make use of parliamentary structures to undermine organisational decisions and policies.”7

The closed-list PR electoral system exacerbates the problem by creating a class of ANC MPs who depend on their party bosses for political survival. For ANC backbenchers, sycophancy is a far more fruitful strategy for advancement than exercising oversight.

The ANC policy of cadre deployment poses another challenge for oversight. Deployment of loyal cadres to parastatals, the bureaucracy, the police service, the army, the judiciary as well as provincial government and the ANC’s professional bureaucracy at Luthuli House effectively creates an elite patronage network. To dissent from the party line is to risk incurring the wrath of ANC structures that are instrumental for career advancement.

There are few institutional remedies — besides the distant prospect of electoral reform — to counter the problem of co-opted opposition parties and supine ANC MPs. It is possible however for parliamentary rules and procedures to be engineered in a way that maximizes oversight. But by altering the rules of question time in 2000, the ANC has achieved the exact opposite.

Between 1994 and 2000, question time in the National Assembly was a fairly lively affair with MPs given the opportunity to engage in interpellations (15-minute ‘mini-debates’) as well as to ask questions for oral reply and written response.

During that period questions for oral reply were placed on the order paper in a sequence that reflected their time of arrival, with the first received question being placed at the top the list and the last at the bottom, thereby ensuring that question time was an opportunity for pro-active MPs from any party to engage ministers on topical issues.

It is telling that the most pro-active MPs were members of opposition parties. Between 1994 and 1998 the NNP, DP and the IFP put a combined total of 5105 questions to ministers compared to the ANC’s 588.8

By 2000, opposition dominance of question time had begun to irk then ANC Chief Whip Tony Yengeni and the ANC used its majority in the joint rules committee to abolish interpellations and introduce a quota system for questions. Instead of allocating questions on a “first-come-first-served” basis, questions were now apportioned according to how many seats a party held in the legislature. Question time is now dominated by ANC MPs who typically ask “sweetheart” questions that give the minister the platform to present his or her portfolio in glowing terms.

Follow-up questions offer some opportunity for opposition parties to press ministers on issues, but unlike under the old rules, where an unlimited number of follow-up questions could be asked, the new rules have reduced the number of follow-ups to four.

The provision of time for follow-up questions does not guarantee that a minister will answer a question satisfactorily, however. Perhaps the most blatant example of question-dodging was President Thabo Mbeki’s avoidance of DA MP Ryan Coetzee’s question on whether the pervasiveness of rape plays a part in the spread of HIV/Aids.

The president chose to ignore the question at hand, preferring to launch into a polemic on racism in which he invoked tasteless racial stereotypes to make a point that had no relevance to the question.

Ministers can, of course, effortlessly dodge questions for written reply. Thus, to illustrate the point concretely:

In February 2002 former DA MP Colin Eglin submitted a question regarding (1) circumstances of the resignation of a director general in the department of foreign affairs, (2) the details of any financial arrangements relating to the resignation and (3) steps taken to fill the vacancy.
The question remained unanswered throughout that year and the next.
The Minister finally responded at the beginning of 2004, with the following reply: “(1), (2), (3) We now have a new director general.”

In 1996, the reluctance of ANC MPs on the Health Committee to question the minister on alleged financial mismanagement of the Sarafina II Aids play led to allegations that they had been “silenced”.

In 2000, ANC heavyweights famously intervened in the work of the Standing Committee on Public Accounts (Scopa), removing Judge Willem Heath from the investigation into the multibillion-rand arms deal. Their encroachment of committee matters split the once non-partisan Scopa along party lines and effectively ended the tradition of appointing an opposition MP as chairperson of Scopa.

Aside from direct interference by the executive in their work, committees are constrained by a lack of resources and a poor understanding of their role as oversight bodies. One important study on the work of committees found that few MPs “knew that they could and may even have a responsibility to demand the presence of a minister in a legislative committee.”9

The committee system is restricted by the paucity of money for research. Though parliament presently employs a research division, its direct relationship with parliament is unclear.

Committees, moreover, have limited input in the budgetary process, with only the power to either accept or reject a budget, but not to amend it. As a result, budgets often get approved as a formality with little input from the committees.

Committees are weakened further because ministers are not compelled to report regulations back to the legislature, raising the spectre of legislation by regulation. To be specific, the Broad-based Black Empowerment Act — at six pages long — does little more than establish an advisory council and mandates the minister to formulate a strategy for BEE. The regulations are 36 pages long and contain all the rules that impact on business.

Another potential area of concern is the role of the Speaker. Like her predecessor, the Speaker since April 2004, Baleka Mbete, is a member of the ANC’s National Working Committee (NWC), National Executive Committee (NEC) and the ANC’s 22-person Parliamentary Management Committee.

Mbete has so far managed to remain impartial, even in negotiating some extremely difficult situations and challenges early in her leadership. However her position in the highest decision-making bodies of the ANC leaves her open to political interference should the ANC be threatened politically.

In light of the challenges to an independent parliament outlined above, the DA developed 17 proposals that we believe would go some way to bolstering parliament’s ability to oversee the executive. They are contained in a DA discussion document entitled From Lapdog to Watchdog: Giving Parliament Back its Teeth.

Some of the most important proposals are:

Legislation that prohibits MPs and ministers from being employed by parastatals or government agencies for two years after leaving parliament.
Questions to be allocated on a first-come-first-served basis, instead of in proportion to party strength, thereby giving pro-active MPs, irrespective of party allegiances, more opportunities to call ministers to account.
An appeal mechanism that gives the Speaker the power to ask the minister or president to respond to a question adequately.
The re-introduction of four fifteen-minute interpellations per question day.
The removal of the limit on follow-ups to stimulate debate and put pressure on ministers to respond to questions satisfactorily.
The current convention of ten days for a minister to respond to written questions should become a hard and fast rule of parliament.
MPs should be required to go through rigorous training specifically on oversight.
Every MP should be assigned their own researcher, as in many other legislatures around the world. If the cost is prohibitive, then specialist researchers should be employed to assist groups of members of the committee.
Committees should be compelled to submit a report specifically on their oversight activities.
Committees should be given the power to amend a budget.
The Speaker should not participate in caucus meetings and activities of the majority party in Parliament.
Regulations should be submitted to the relevant portfolio committee for approval. In Australia for example, regulations are submitted to the relevant portfolio committee to consider their constitutionality as well as whether the regulations are in line with policy.

The establishment of the multi-party task team is an excellent chance for parliament — through strengthening its capacity to oversee the executive — to regain the public confidence that has been lost in it since 1994. If the opportunity is missed, South Africa’s constitutional democracy will be gravely imperilled.

Endnotes
1 The 2004 election saw only 57 per cent of the voting-age population turn out to vote, compared with 71,6 per cent in 1999.
2 See: ANC should keep close ties with IFP — report in Business Day, 27 September 2004.
3 See: PAC’s Pheko under fire — Mail & Guardian, 22 October 2004.
4 See: W Spies, Debating Government and Opposition in South Africa – A Freedom Front Perspective, paper presented at the Idasa workshop on government and opposition on 2 October 2004.
5 See: P de Lille, It’s the quality, stupid! — ThisDay 19 August 2004.
6 Andrew Feinstein, Majority Parties and Executive Oversight: Finessing the Tension — a South African Perspective paper presented at the Idasa seminar on parliamentary oversight. 6-7 February 2000.
7 A Bernstein. 1999. Policy-making in a New Democracy. Johannesburg: Centre for Development and Enterprise, p. 28.
8 L Nijzink, Opposition in the new South African Parliament. Paper presented at the Konrad Adenauer Foundation conference on opposition politics, 2001.
9 C Murray and L Nijzink. 2001. Building Representative Democracy, p. 88.