When Will Parliament Become Fully Operational Again?

A timeline of some important events

In response to the announcement by the President of the introduction of certain measures to avoid the spread of Covid-19, the Speaker of the National Assembly on 16 March 2020 issued a statement[1] in which she cancelled a plenary session for 17 March and rescheduled a plenary session beginning for 18 March reschedules for 18 March to allow the House to deal with urgent business that would have been carried out over two days. The National Council of Provinces (NCOP) was reported as also having cancelled certain public meetings in three Gauteng municipalities, and would restrict its meeting to urgent business. Committee meetings were reported as meeting according to schedule until further notice. Importantly, the Speaker’s statement advised that “a special meeting between the Presiding Officers of Parliament and the whippery will take place on Tuesday, 17 March to consider the way forward in light of the President's announcement” and that “[a] comprehensive announcement regarding the programme of both Houses of Parliament, the National Assembly and the National Council of Provinces, will be made after the Tuesday meeting”.

On 18 March 2020, the Speaker of the National Assembly announced that its business would be suspended until further notice. The first term of Parliament in 2020 was in any case due to end on 20 March. A constituency period was scheduled from 23 March to 13 April. The second term was due to start on 14 April, but no notice of a full resumption of National Assembly business has not yet appeared

26 March: The leader of the Democratic Alliance wrote to the Speaker requesting that an ad hoc committee be established to ensure continued oversight of the executive and the protection of civil liberties during the COVID-19 lockdown.

4 April: The Deputy Speaker replied[2], saying that he fully agreed the National Assembly must continue to exercise oversight over the executive and the actions of organs of state, as envisaged by the Constitution, during this crisis. However, his view was that oversight and accountability work must be done by all existing parliamentary committees and Members of Parliament, in line with their areas of specialization.He added that Parliament was using information and communication technologies for parliamentary committees and members to effectively continue to engage in their oversight and monitoring role. The Deputy Speaker’s reply was published as a parliamentary press release.

5 April: A further press release[3], while confirming that virtual Parliamentary committee meetings are possible, it struck a different tone from the release of the previous day. It said that in performing its constitutional obligations during this period, Parliament must not be seen as interfering with the responsibility of the Executive to implement measures for which the National State of Disaster has been declared. It also said that committeemeetings to conduct oversight over implementation of the lockdown regulations, may require the Executive to attend, risking taking them away from their critical function of managing measures to combat spread of COVID-19.

Since 5 April, press releases from a number of committees have appeared. In all but one case, the releases contain statements from their chairpersons, with no indication that the committees have actually met. The exception is the committee on healthwhich had a virtual meeting with the Minister of Health and others on 10 April. The committee decided that there should be weekly meetings where it will receive updates from the minister and the task team and monitor the developments on the pandemic.

15 April: Parliament published a Rule on Virtual Meetings. A copy is available here. It applies to both the National Assembly in plenary and to committees. It deals with notice and conduct of meetings, quorums and voting. It requires that access to proceedings must be facilitated in a manner consistent with participatory and representative democracy and wherever possible a virtual meeting must be livestreamed.

The National Assembly in plenary

We have as yet no indication about the functioning of the National Assembly in plenary. There is a technical problem of how the National Assembly will conduct its plenary meetings, given that there are health problems associated with meetings in its usual venue. It will have to be solved fairly soon because Section 10(7) of the Money Bills Amendment Procedure and Related Matters Act (9 of 2009) requires that:

Parliament must pass, with or without amendments, or reject the Appropriation Bill within four months after the start of the financial year to which it relates.

That is, by the end of July. That may seem some time away, but there are a number of time consuming processes which need to be completed before the Appropriation Bill can be voted on. Characteristically, they take up the whole of the second term of parliament each year.

In the meantime, Section 16 authorizes the Minister of Finance to authorize the use of funds from the National Revenue Fund to defray expenditure of an exceptional nature, up to a limit of two per cent of the total amount appropriated in the annual national budget for the current financial year. The limit could turn out to be quite constraining, given the financing requirement of government programmes to counter the effects of the epidemic. It raises the possibility that the government may want to amend the financial legislation introduced with the 2020 Budget before proceeding with it.

Assessment

We disagree with any view that parliament should step aside and allow the executive to manage states of disaster without oversight. On the contrary, states of disaster confer extraordinary powers on the executive and extraordinary opportunities for the abuse of power, thus requiring more scrutiny, not less. We have been disturbed to read allegations of abuse of power by enforcement officers, unaccompanied by the creation of easily accessible avenues for the lodging of complaints and mechanisms for their speedy resolution.

In particular, we believe that the ability conferred by statute on the responsible Minister by Section 27(5) of the Disaster Management Act to declare a national state of disaster for three months, followed by extensions of one month at a time, should be accompanied by a requirement that extensions beyond three months should each be approved by parliament. We urge parliament to consider what we believe is a defect in the Act in order to ensure appropriate accountability and oversight.

Along with a number of other non-governmental organizations, we have written to national and provincial legislatures suggesting ways in which they could step up to the plate. Now is a time for creativity, not abdication.

Charles Simkins
Head of Research
charles@hsf.org.za

[1]https://www.parliament.gov.za/press-releases/impact-presidents-announcement-sittings-national-assembly