ANALYSIS

The battered and bruised, but not broken, fifth Parliament

By Marianne Merten 1 April 2019

Security personnel remove EFF MPs from Parliament during the State of the Nation Address on 9 February 2017. (Photo: Gallo Images / The Times / Esa Alexander)

It’s been a tough five years for the outgoing Parliament where verbal barbs flew, as did physical punches. The spectacle of politics arrived in the national legislature in 2014 as never before. Battered and bruised, Parliament nevertheless conducted the business of the House. But the past five years hold important lessons for the new crop of lawmakers who will take their places on the parliamentary benches after the 8 May elections.

Stun grenades fired at Parliament staff on strike in November 2015 and at student protesters, who walked on to the parliamentary precinct during a #FeesMustFall protest on 21 October 2015 just as then finance minister Nhlanhla Nene delivered the Medium-Term Budget Policy Statement (MTBPS).

Posters, hard hats, flying water bottles and chants of “Pay Back the Money” in the House. A broken jaw and, for the first time in democratic South Africa, police on the floor of the House in a late-night sitting on 13 November 2014. And state security signal jammers blocking cell phone coverage at the 2015 State of the Nation Address.

Eight motions of no confidence in then president Jacob Zuma. Some 107 bills adopted — notably fewer than in previous terms, but for the first time including legislation drafted by parliamentary committees, such as the Public Audit Amendment Bill that gives the auditor-general teeth, or the Public Investment Corporation (PIC) Amendment Bill. The 2017 High Level Panel report on the impact, or not, of the laws Parliament has passed since 1994. Wide-ranging public hearings in 34 venues across South Africa in 2018 on amending Section 25 of the Constitution to allow expropriation without compensation. Two parliamentary inquiries: In 2016 on the SABC and in 2017/8 Eskom State Capture.

Two presidents elected in one term, and the unprecedented postponement of the February 2018 State of the Nation Address as the governing ANC, after its Nasrec national conference that elected Cyril Ramaphosa, during a few tense weeks tried to put its house in order, and decide who should be in the Union Buildings.

The past five years in Parliament have been tumultuous, raucous and bruising, both verbally and physically. That’s not to say there were no moments of dignity, hilarity or camaraderie like when House Chairperson and ANC MP Thoko Didiza congratulated EFF MP Mbuyiseni Ndlozi on attaining his PhD, with everyone applauding. Or the occasional admiration of attire, such as socks, across the floor of the House.

But nothing marks the term of what in official jargon is called “the fifth Parliament” like the Nkandla judgment by the Constitutional Court. On 31 March 2016 South Africa’s highest court found Zuma had violated his oath of office — and the actions of Parliament, the legislative sphere of the state, were “inconsistent with the Constitution” and “unlawful”.

Or as Chief Justice Mogoeng Mogoeng said, delivering the unanimous ruling setting aside the National Assembly’s adoption in August 2015 of its ad hoc committee report that absolved Zuma from repaying anything of the at least R215-million spent on his rural Nkandla homestead, despite a Public Protector finding:

By passing that resolution the National Assembly effectively flouted its obligations. Neither the president nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect or has been set aside through a proper judicial process. The ineluctable conclusion is, therefore, that the National Assembly’s resolution based on the Minister’s findings exonerating the President from liability is inconsistent with the Constitution and unlawful.”

In the same judgment the Constitutional Court outlined Parliament’s responsibilities and mandate:

The National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all our people. It is the voice of all South Africans, especially the poor, the voiceless and the least remembered. It is the watchdog of state resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people. It also bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed.”

And later on in the judgment:

Parliament is the mouthpiece, the eyes and the service delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.”

Yet too often in the bruising jockeying within the factionalised ANC, party political considerations trump all. A tendency developed to tick the boxes of protocol and process, rather than live up to the spirit of constitutional imperatives such as the founding provisions including accountability, responsiveness and openness.

Given the ANC’s internal political balance at the time, and the governing party’s drive to protect Zuma in the Nkandla saga, characterised not only how the National Assembly over some two years dealt with this, and other matters such as the four-times-a-year presidential Q&A.

Three days after the Constitutional Court’s Nkandla judgment, in a briefing on 3 April 2016, National Assembly Speaker Baleka Mbete and National Council of Provinces (NCOP) Chairperson Thandi Modise dismissed the need for an apology or even resignation.

Both presiding officers took a narrow view, emphasising the court had upheld Parliament’s entitlement to follow its own processes. It was not a case of Parliament having done “something malicious” for which an apology was needed, according to Mbete, but that the court ruled “a particular action was inconsistent with the Constitution. It’s different from saying we went out knowingly and violated the Constitution”.

In the ANC factional jockeying, timing is all. Mbete, then also ANC national chairperson, and Modise held this briefing on the Sunday of the weekend of an extended ANC National Executive Committee (NEC) meeting that discussed the Constitutional Court ruling — and Zuma’s 1 April “apology” for the frustration and confusion caused in this matter. The presidential statement was roundly rejected by opposition parties, but accepted by the ANC at its extended NEC meeting that ended on 4 April 2016.

With the ANC having decided it would hit the road to explain the apology to its supporters — the local government elections were pending later in 2016 — there was a little follow-up in Parliament beyond a meeting between Mbete and political party leaders later in April 2016.

The EFF did not take this lying down and approached the Constitutional Court over the national legislature’s failure to act to hold Zuma to account, given the judgment in the Nkandla saga. And in late December 2017, the Constitutional Court found the National Assembly had failed to put in place mechanisms to hold a president accountable, and that this must be corrected by developing rules on impeachment.

The impeachment rules were adopted in November 2018 in what effectively was a re-run of the court action the DA brought as far back as 2013 when Parliament was ordered by the Western Cape High Court to fix the lacuna in its rules over motions of no confidence.

And this talks to what has run like a golden thread through the past five years at Parliament — a ticking of the boxes of protocol and procedure in a narrow interpretation of a constitutional mandate that in Section 55 actually empowers the National Assembly to “ensure that all executive organs of state in the national sphere of government are accountable to it” and to “maintain oversight in the exercise of national executive authority… and any organ of state”.

So when opposition parties complain that a minister has not answered a question asked in the House, presiding officers respond:

The honourable minister has answered. You may not like the answer, but there was an answer”, or similar words. With all presiding officers being ANC MPs — the practice of accommodating at least one opposition MP fell away in the post-2014 election Parliament — there’s little to redirect ANC ministers’ readiness to deliver more expansive responses to what on the whole are sweetheart questions from the governing party benches.

Co-incidentally, according to DA number crunching, the main opposition party asked 75% of the 17,985 written questions in the past five years, followed by the EFF’s 18% — the ANC trails with just 1% of written questions.

The governing ANC has become comfortable using its numbers in the House to get its way. With 249 of the 400 National Assembly seats won in the 2014 election, the ANC can and has used its numbers to get its way in Parliament — be that on legislation or nominations to statutory boards such as the SABC and Chapter 9 institutions such as the Electoral Commission of South Africa (IEC).

But even the assertion of numerical dominance can be subjected to internal ANC politicking. And so it flailed in the most contested motion of no confidence in Zuma on 8 August 2017 — by secret ballot, after a Constitutional Court ruling that the National Assembly Speaker could make this decision after the United Democratic Movement (UDM) approached the highest court in South Africa.

Despite the ANC’s invocation, the motion was tantamount to regime change; it was a closer-than-expected vote with 198 votes against the no-confidence motion, 177 for and nine abstentions, clearly showing that about 35 ANC MPs actually voted for the motion.

In the see-saw of ANC factional politicking, the numbers also stacked differently in February 2018, when Ramaphosa was party president, but not yet country president, and tense party discussions indicated Zuma’s hold on the ANC was slipping. With the prospect of having the ANC join an opposition no-confidence motion, Zuma resigned late on Valentine’s Day 2108.

It was in those politically tense days Mbete asserted her standing as the leader of the legislative sphere of the state, and postponed the State of the Nation Address for the first time in democratic South Africa to await “a more conducive political environment”.

This highlights the power a Speaker, and Parliament, can have — a little like House of Commons Speaker John Bercow, who with his rulings directed how MPs should handle Brexit to effectively take over this task, even if he’s annoyed his political home, the Conservative Party. Bercow, like others before him, resigned from his party when he became Speaker in June 2009 to ensure the necessary independence of the office from party politicking.

In South Africa, the EFF has long ago proposed a retired judge as Speaker. Other opposition parties have also called for the Speaker to resign party political membership.

With regards the Mbete and Modise’s decision to delay the 2018 State of the Nation Address, similar to the Nkandla Constitutional Court judgment, the timing is important. Despite the looming date of the State of the Nation Address, the ANC NEC had decided to meet again regarding its leadership politicking. The postponement, just for a few days, bought the necessary political space — and another motion of confidence — so the ANC could resolve its in-house turmoil.

Parliament’s role in South Africa’s politics and body politic is central.

It was in Parliament the EFF moved to bring its push for compensationless expropriation through a motion backed by the ANC, which had found itself outmanoeuvred. The radical economic transformation grouping scored an 11th-hour coup when the December 2017 Nasrec national conference resolved in favour of expropriation without compensation.

The ANC regained some measure of political control only from early 2019 when the constitutional amendment drafting process came to Parliament, where the ANC holds the numbers. The process to amend Section 25 of the Constitution was on 19 March kicked into touch, awaiting the attention of the incoming Parliament, which would have to adopt a motion to revive the process.

Parliament is an intensely political institution and, since the arrival of the EFF, also a site of political spectacle. But the national legislature also is only one of the three spheres of the state that brings together different political parties in the interest of South Africa to represent the people of South Africa.

The dynamics, failings and achievements of the outgoing Parliament over the past five years are there to see. Whether the incoming post-election public representatives choose to look only at the glossy bits, or heed the lessons of a battered and bruised Parliament, will be key to what happens over the next five years. DM

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