ANALYSIS

How to destroy a country — Parliament Edition

By Marianne Merten 12 December 2019

The Houses of Parliament in Cape Town. (Photo: Daily Maverick)

If Parliament were to fully live up to its constitutional responsibilities, the impact of the legislative sphere of state in South Africa’s constitutional democracy would be truly tremendous. But that’s not happening.

(T)he 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

Parliament also passes legislation with due regard to the needs and concerns of the broader South African public. The willingness and obligation to do so is reinforced by each member’s equally irreversible public declaration of allegiance to the Republic, obedience, respect and vindication of the Constitution and all law of the Republic, to the best of her abilities.

In sum, 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.”

With these words, Chief Justice Mogoeng Mogoeng in the seminal 31 March 2016 Nkandla judgment delivered perhaps the best and most succinct description of Parliament’s essential role in South Africa’s constitutional democracy.

The unanimous judgment had found the National Assembly lacking — its conduct was ruled “unlawful” and “inconsistent with the Constitution”. By absolving then president Jacob Zuma from repaying anything for the taxpayer-funded (non)security upgrades at his Nkandla homestead, as the public protector found, the Constitutional court said, “the National Assembly effectively flouted its obligations… 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”.

No official apology to South Africa ever came from those leading Parliament.

Three years and eight months after this landmark Constitutional Court judgement — and with a new post-May 2019 election national legislature that officialdom calls the sixth Parliament — the court’s powerful setting out of the constitutional role and responsibilities of Parliament continues to remain subservient to blunt political interests.

Against opposition objections, on 4 December 2019 the governing ANC was adamant it would push Zanele Hlatshwayo on to the Public Service Commission. Hlatshwayo was axed as the Msunduzi mayor when the council was put under administration after it slid into dysfunction on her watch between 2007 and 2010.

And for the second time in two weeks, the ANC was defeated in the House, this time because it couldn’t muster enough votes on its own benches: with only 176 votes in favour, and 91 against, the appointment missed the required constitutional majority.

The ANC parliamentary caucus will try again in 2020, and until then the vacancy remains in the commission established in Chapter 10 of the Constitution.

But the ANC benches were a bit fuller by the time the Order Paper for 4 December 2019 returned to the nomination of advocate Kholeka Gcaleka as deputy public protector for the office established in Chapter 9 of the Constitution. And so the governing ANC got its choice with the support of the IFP and National Freedom Party while all other opposition parties objected in a vote 203 for, 103 against.

Democracy by numbers, rather than consensus, dates back to the Zuma administration. In court papers filed to oppose United Democratic Movement leader Bantu Holomisa’s 2017 Constitutional Court application for a secret ballot in motions of no confidence, Zuma argued:

As a matter of fact, that is the advantage of enjoying a majority in Parliament and that is how the mandate of the majority is carried out by the majority party…”

Parliament is a deeply political institution, and often heralds shifts in the national political landscape, like the constitutional amendment to make express the possibility of the expropriation of land without compensation that was a key May 2019 electioneering theme.

The EFF has been masterful at using the national legislature for its strategy, including physical intimidation as part of its Comrade Jamnadas campaign against Public Enterprises Minister Pravin Gordhan in mid-year.

But Parliament is also an institution of public representatives who must find a way to act together in the national interest, for all South Africans.

It’s a balance that’s been elusive, regardless of the side of the House. And in that, Parliament has failed to live up to the constitutional imperative so aptly expressed by Mogoeng.

It’s been a long-standing refrain from the opposition benches that ministers do not properly answer questions in the House, if they show up in person rather than sending a deputy. Presiding officers usually respond that questions have been answered even if the opposition doesn’t like the answers. Finish and klaar.

The post-May 2019 election Parliament seemed to have struggled to shed the electioneering. Hectoring has remained the preferred tone in just about every parliamentary debate. Regardless of what side, the public representatives are more given to tooting their political party’s horn from the ANC’s “We, the leader of society” to the DA’s “Where we govern, we govern best”, and the EFF’s assertion that it has the sole claim to “superior logic”.

For now, the ANC continues to hold the numbers, even if somewhat reduced to 230, down from 249, of the 400 National Assembly seats. And through its deployment committee and in the factional power plays, the ANC continues to set the tone not only in Cabinet and across the public service, but also in Parliament.

Because of this, the governing ANC will find itself under greater scrutiny than, say, a one-MP party.

Last-minute factional machinations hit the swearing-in of parliamentarians in late May 2019 — and then a previously unheard-of delay dragged out the appointments of committee chairpersons.

These are powerful positions as committee chairpersons direct the committee work from briefings from officials to legislation and pretty much everything in between.

When these appointments came, it was clear most were part of ANC Secretary-General Ace Magashule’s slate, widely associated with the radical economic transformation grouping. And these committee chairpersons’ appointments effectively gave a second lease of political life to former ministers of the Zuma administration, many tainted by State Capture claims, such as ex-state security minister Bongani Bongo (home affairs), but also ex-communications minister Faith Muthambi (co-operative governance), ex-mineral resources minister Mosebenzi Zwane (transport), ex-energy minister Tina Joemat-Pettersson (police) and others.

Coincidentally, Bongo remains home affairs committee chairperson despite his 21 November 2019 arrest on a corruption charge linked to a bribe offered in October 2017 to the evidence leader of a public enterprises inquiry into Eskom State Capture, advocate Ntuthuzelo Vanara, to drop the probe.

ANC Chief Whip Pemmy Majodina was quoted as saying Bongo’s fate would be known shortly, according to TimesLive:

The ANC made deployments of their members, but now if there’s such a case, maybe the ANC has to reconsider this deployment. Within the next three days, we’ll know exactly what’s going to happen to Bongo, but at the moment I can’t suspend him as a chair because the ANC have not as yet received a detailed report to say what’s happened which led to his arrest”.

In the official ANC parliamentary caucus statement, also on 21 November 2019, Majodina said: “As the ANC, we will not comment on the allegations levelled against Comrade Bongo as we want to allow the law to take its course”.

Three months earlier, the ANC parliamentary caucus lekgotla had resolved that “our focus on raising the standards of ethical conduct from public representatives will go a long way in our efforts to fight against corruption and State Capture”, according to the official lekgotla statement of 9 September 2019.

On 26 November 2019, Bongo took his seat as home affairs committee chairperson and told fellow MPs:

I am looking forward to and assure the nation I will go to court and prove my innocence.”

But the committee chairpersons’ appointments are also controversial because members of the executive — ministers, deputy ministers, mayors and MECs — have been put in charge of leading committees in the legislative sphere.

That requires a fundamental overhaul of ethos, from the “I-give-orders” executive mindset to a legislative attitude that by necessity requires inquisitiveness, to hold to account the executive as required in Section 55 of the Constitution.

It’s not quite fully happened, as illustrated by a highly unusual statement issued on 8 December via the official Parliament communication channels.

The Chairperson of the Portfolio Committee on Tourism, and the former North West Premier, Mr Supra Mahumapelo today visited the Legae family in Seweding Village near Mahikeng to offer it support after the recent brutal killing of its 18-year-old daughter, Gomolemo Legae…”

Yet, it is by no means impossible to make the shift from executive mindset to one focused on legislative matters and oversight. Ex- premiers Cassel Mathale and Ngoako Ramatlhodi did their time as MPs. And former ANC ministers such as Kader Asmal, Johnny de Lange and Yunus Carrim successfully made the transition to be impactful committee chairpersons.

It has just not been as smooth this time round.

Slowness and patchiness have marked the change to the more probing, oversight- and accountability-oriented mindset. And so Parliament is not only letting itself down, but also South Africa.

More should be expected from those whose job it is to be in Parliament — a positing that comes with a not insubstantial salary of R1.2-million plus perks for an ordinary MP to R1.6-million for the ANC Chief Whip and leader of the official opposition, the DA.

But over the past six months, committee chairpersons often abruptly ended question sessions with officials and ministers with a “We’ve run out of time” injunction as time-keeping seemed to trump accountability. Or officials are told to submit their responses in writing, away from the public scrutiny of an open committee meeting.

Officials from at least three departments indicated their surprise because recent committee meetings had been a breeze. They had been worried over tough questions, but these never came. Or as one said:

We were told to come to the committee even though there wasn’t really an update. So I dusted off my old presentation”. That official was not the only one.

In committees, the questions highlight a shallowness of subject knowledge — and not only from the side of the ANC, as there are not an insubstantial number of tepid performers in the DA ranks.

Committees ticked off the Budget review and recommendation reports that are meant to be crucial oversight tools. And then committees trawled through issues canvassed by the previous Parliament — afresh, as if the previous parliamentary reports and meetings, for which transcripts are available on the Parliamentary Monitoring Group (PMG), did not exist.

On 19 November 2019 the home affairs committee was, again, briefed by the department on the Fireblade private terminal the Oppenheimer family had established with ministerial permission at OR Tambo International Airport. MPs requested an oversight visit there. Again.

The pre-May 2019 election committee had presented an oversight report to the House. That committee had dealt with the Fireblade saga from late October 2018, as then home affairs minister Malusi Gigaba’s court challenge to a finding he had lied under oath ran its course.

Asked about the need for another oversight visit when committee reports are available, and given the department had just confirmed Transport had to develop the policy on private terminals, Bongo replied: “We have to go see for ourselves”.

Ditto, the communications committee interaction with the SABC board and officials. And the finance committee as it picked up on financial sector transformation, which produced a substantial report in late 2017, and the illicit tobacco trade. There are others.

It seems institutional memory and institutional records mean little.

And perhaps that’s a reason why Eastern Cape public works MEC turned ANC chief whip, Majodina, has taken the unprecedented step of also becoming a member of the Pan-African Parliament, which alongside a so-called “political deployment” to China, has taken her away from Parliament during session.

In Parliament, by practice and tradition, a chief whip is like the captain of a ship — central to the effective and efficient running of operations. Aside from steering one’s political party caucus, chief whips from different political parties jointly assist in managing parliamentary business through, for example, the Chief Whips’ Forum.

Majodina was approached for comment on absences, the ANC parliamentary caucus performance and the year’s highlights, both through her office — “The chief whip will not be responding to your questions” was the response, citing unavailability — and subsequently also directly. “I will not comment on anything thank you” Majodina responded on WhatsApp.

The ANC parliamentary caucus lekgotla of early September 2019 resolved to “dedicate itself primarily to serving the people of South Africa. ANC MPs will be visible in all our constituencies and we will partner with civil society organisations to address the challenges faced by our communities in the spirit of Thuma Mina and Khawuleza,” according to the official lekgotla statement.

The ANC in Parliament resolved to strengthen oversight over the government, and for the restructuring of some state-owned enterprises (SOEs), to ensure good returns on public funds invested into SOEs.”

These are pretty words, just like the DA has uttered to push what it regards as its alternatives. Or the EFF.

The bottom line is unless Parliament pulls itself up by its bootstraps, it will fall short. And in falling short, the national legislature fails South Africa.

One example to illustrate: every three months departments, SOEs and other government entities present their financials to MPs. It’s part of the parliamentary oversight, like the Budget review and recommendation reports, and designed to ensure officials match their performance to the money received from the public purse.

And yet every year it seems political parties represented at Parliament are astounded by the absolutely dismal audits highlighting irregular expenditure, failure by government departments and municipalities to comply with laws, and lack of internal controls.

It was no different in 2019. Auditor-General Kimi Makwetu called for immediate action as prevention was better than cure. And this time, he expressly cited Parliament and the provincial legislatures for their crucial role in preventing abuse. “People in committees need to empower themselves to prevent certain things from slipping their attention.”

It’s understood a workshop with committee chairpersons is being planned for early in 2020. But a workshop is not enough.

As public representatives, MPs take an oath of office to “obey, respect and uphold the Constitution and all other law of the Republic”. Anything less is tantamount to trashing South Africa.

And Parliament, the people’s Assembly, must get the work done — and get it done properly. DM

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