Coronavirus and Parliament Op-Ed

Now is not the time to suspend parliamentary oversight

By Samantha Waterhouse 7 April 2020

Parliament has grappled with its oversight role during the national disaster, says the writer. (Photo: Daily Maverick)

South Africa has three branches of government, but since the announcement of the National State of Disaster on 15 March, until yesterday, you’d be forgiven for thinking we had only two.

On 25 March a group of prominent civil society organisations (CSOs) wrote to the speakers of all legislatures, offering to support the legislatures in dealing with the coronavirus crisis, and giving some initial ideas. That letter received one “thanks, noted” reply from a provincial presiding officer, for the rest – resounding silence.

Finally, on Sunday, three weeks after the disaster was announced, a press release, Constitutional obligations of Parliament during Covid-19 pandemic”, was uploaded on Parliament’s website letting us know that MPs are “regarded as an essential service” and have the authority to execute their oversight functions including through the constituency structures during the lockdown period.

The press release demonstrates that Parliament has grappled with its oversight role during the national disaster. It also stresses that this is a period that needs the executive to act fast and implement measures to respond to Covid-19. So the release cautions against distracting the executive by calling them in to brief committees during this time. It asserts that committees will record their observations and interventions, they will follow up where appropriate, and can still call the executive to account “in the usual ways” for decisions taken after this disaster period.

Many of us can see that relaxing some of the usual requirements for legislative oversight makes sense so that the executive can take decisions, act quickly and get stuff done – nonetheless, we approach this with caution.

While the message that they are mindful of their role to perform oversight is encouraging, it also takes a worryingly low-road approach for now. The question should be, on what basis will the legislatures call the executive into account during the period? There may be many opinions on what’s reasonable during a crisis situation, what the limits should be on executive decision-making, what the requirements for seeking legislative go-ahead should be beforehand, or reporting on decisions taken after, during the disaster period.

These need open discussion.

While confirming that committees are able to meet using virtual technology, the release doesn’t indicate how systematically committees will meet during this period – it actually reads that meetings will be minimal, and they will rely mainly on constituency work.

We believe that legislatures need to commit to regular meetings regarding their areas of focus, regardless of the question of on what terms the executive will be called before them in the time.

In addition to the existing committees, Parliament should establish a Covid-19 ad hoc committee and this committee would have to meet regularly.

There’s also the question of our multi-party democracy.

Although it may be weak when it comes to the decision-making power of the governing party, it does add value through increased plurality, demands for transparency, and pressure on the ruling party. Committee meetings are the space in which elected representatives from different parties can engage in discussion together. 

Using the constituency system

The press release suggests that the primary vehicle for oversight will be the constituency system.

Finally, after years of the public and civil society trying to get this part of legislature work to function properly, we see an intention to use it. These measures are important and during this lockdown, critical.

Let’s hope that Parliament has better luck than the CSOs who have tried to wrestle the information from political parties over the last nine months since the election regarding which MPs and MPLs are assigned to which constituency offices and then get this information out to the public, where it’s needed.

But the reliance on improving the constituency system is not enough, constituency MPs and MPLs need to have mechanisms to take the range of issues that are raised with them in communities up to the relevant committees and then, those committees need to deal with them and get feedback to the people who raised them. 

Transparency at stake

The press release completely fails to address the question of transparency.

It refers to keeping a record of observations, but not how it will conduct its work in the open and transparent manner required by the Constitution.

The requirements for openness and operating as a “public forum” are critical to our democracy – Zoom and Google Hangouts meetings can be recorded and posted online afterwards. Even better – they also can be live-streamed on YouTube, which means that meetings could be streamed publicly as they happen.

These streaming platforms also add the space for comments and chats which (if they are monitored by committees) would enable public engagement with the content of the discussions. For those members of the public and CSOs that have struggled for the past 25 years to meaningfully engage with the legislatures, this Covid-19 experience, as we get more communications-tech savvy, could strengthen the functioning of the legislatures as public forums.

The legislatures have three primary functions, all important for different reasons during this time. While questions of oversight are (finally) being engaged, the questions of facilitating participatory democracy and representing the public, and the duty to process laws – not so much. 

And public participation?

Not only are MPs and MPLs elected to represent the public, they must also facilitate public participation.

This means they must listen to and take direction from the public, not only from their party leadership. The lockdown, by limiting meetings of civic organisations, preventing protest gatherings, and moving many conversations to platforms completely inaccessible to the public, increases the need for us all to figure out how to ensure that all sectors of the public are able to raise their experiences and engage with the decision-making – here the legislatures and elected representatives can play an important role.

This is where the technology and platforms that are available to us will fall short. Twitter and email only go so far. WhatsApp has greater reach and could be used for public communication with elected representatives (as with other civic organisations). But even that will fail those who are most marginalised and excluded.

These limitations aren’t a reason not to use them, they’re a reason to figure out what else elected representatives should be doing to make sure that the views and experiences of people who are most pushed to the margins are taken into account as these emergency decisions are taken by the executive. The middle-class voice and experience, quite frankly, seems pretty well taken into account right now.

The legislatures must come up with a structured plan to be part of the efforts, currently driven mainly by civil society, to create room for those who are unable to wash their hands without leaving their houses, who have no idea where they will get a wage, or find the food to feed themselves, who are crammed into small homes, or who are coping with the abuses of “rogue”(?) police and army staff – to raise their experiences during and after this crisis period. If we are to successfully navigate the national threat of Covid-19, now and in the months ahead, we can’t do it without hearing and properly responding to the full spectrum of the public.

Lawmaking on hold

On lawmaking, many of the bills that were in process have been delayed.

Without having analysed all the bills that were being processed, for now let’s assume that most of them can wait a bit. An inventory of bills that were being processed in mid-March, and a plan from the legislatures regarding each of these would be a good start though.

Those laws that shouldn’t wait until the end of the disaster period are the ones dealing with public money.

For now, Treasury is going ahead with emergency disaster management tax laws, including opening them for public comment, and bypassing the parliamentary process until “Parliament reconvenes later this year”.

We get it, things need to move quickly, but clearly there’s not even an attempt to engage with the legislative direction or oversight on these for now.

There’s also the issue of the fiscal framework for this financial year, which was passed on 11 March, but which will be unworkable given the additional costs, the loss of revenue, and other economic factors that have come into play since. Will it be redone, what will the parliamentary process be?

The Division of Revenue Bill was not finalised by Parliament. This bill allocates money to national departments, provinces and municipalities – all they are allowed to do at this point is to spend 45% of what was budgeted for last year – but last year we didn’t have the Covid-19 emergency to deal with… So, on the money bills, we need more immediate engagement from the government, including the legislatures, on the difficult questions of how we as a constitutional democracy will deal with decisions about public money during the disaster.

That there has finally been an indication of a response from Parliament is a start. We’re going to need more.

Despite its title, it does not yet deal with all of Parliament’s constitutional obligations during the state of disaster. The work of the past two decades to promote accessible, strong, independent legislatures must be increased, not relaxed at this time. 

Civil society organisations will continue to collaborate and reach out to the legislatures to support and encourage their role. We urge our elected representatives to work with us to figure it out. MC

Samantha Waterhouse works in the Women and Democracy Initiative of the Dullah Omar Institute, and collaborates with CSOs in the Parly Watch and Putting People in People’s Parliament projects. Many of her thoughts and ideas in this piece are informed by the thinking of other people in organisations also concerned about the legislatures.

Gallery

Humans of Covid-19

Free State doctor: ‘This pandemic has changed everything’

By Nomatter Ndebele and Thom Pierce