Ten years after it replaced the short-lived senate as Parliament’s second chamber, the National Council of Provinces has very little to celebrate.
The gathering momentum behind proposals to trim the provincial system down to size is a real existential threat to the council, but even without constitutional changes to hurry it to oblivion, it has long since drifted into irrelevance. That it is not experiencing a more urgent crisis of legitimacy is a consequence of the fact that so few people take its work seriously to begin with.
For one thing, the NCOP generally only makes the news when one of its regular goofs is particularly spectacular. In 2003 for example, delegates inserted language in new liquor legislation that effectively banned the production of battery acid and petrol. And in 2004 somnolent ANC back-benchers allowed the DA to slip through without objection a motion ”regretting … the refusal of the President to address the serious crime of rape in our country”.
Despite this atmosphere of incompetence, or simply of repose, important things do happen in the NCOP.
Because legislation must pass through the council after it has been to the National Assembly, the NCOP is often treated as a kind of proofreading organ for new laws. At best, this means that faulty language or outright mistakes made either by the original drafters or in revisions introduced by the National Assembly can be tidied up. This is a benign and sometimes useful process in a Parliament that has often had to rush through a crowded legislative schedule, but it is a function of state law advisers and government departments using the available constitutional tools to cross Ts rather than any special discrimination on the part of the NCOP.
At worst — and fortunately more rarely — it can provide an opportunity for government officials who don’t like a National Assembly draft to wangle changes that favour their interests in a less rigorous environment, with less scrutiny than they face in the assembly.
That is what happened in 2006 when the department of communications persuaded delegates to gut the delicately achieved compromise that the National Assembly had agreed for appointing Independent Communications Authority of South Africa councillors. The NCOP draft concentrated all power in the hands of the minister, and was plainly unconstitutional, which is why President Thabo Mbeki sent it back to the National Assembly for further revision. A less outrageous law ultimately emerged from the process, but the executive won substantial ground.
The weakness of the NCOP has its roots in the constitutional design of the chamber and in the shape of political careers since 1994.
With one or two exceptions, the NCOP is bereft of real political talent largely because it is no place to make a name for yourself (Naledi Pandor is a striking counterfactual case).
The ANC has used the National Assembly as a development league for senior government positions and deployment to business. That may have cost the legislature some of its most effective operators, but it also means that a few bright and ambitious types are still there, hoping for future preferment, or making the most of the platform. The NCOP has never offered such a pathway to promotion (except for its presiding officers), functioning instead as a parking place for politicians whose status requires recognition, but who don’t have the qualities for an MEC’s post or the cut-and-thrust of provincial front benches.
These patronage appointments are possible because NCOP delegates are not directly elected — they are nominated by provincial legislatures. They are responsible to, and beholden to, their provincial parties. In a system like ours, with one party in control of all the provinces and the National Assembly, this is a recipe for a supine and largely irrelevant house.
At the moment the National Assembly is doing its best to respond to charges of poor accountability and weak oversight without committing to real reforms in the way the institution works. Baleka Mbete, the Speaker, is promising more cash for researchers and lawyers, tougher questioning of government performance and a raft of cosmetic changes (a new mace, vision statement and website).
That certainly isn’t enough, but it is several steps further than the NCOP, which relies entirely on public relations boondoggles like ”taking Parliament to the people” to create the impression that it is doing something to justify its existence. Alas, those expensive and pointless trips to provinces are a compelling metaphor for the council itself. If delegates were directly accountable to the people, there would be no need to engage in the elaborate theatre of a mobile legislature.
With the debate about the future of the provinces livening up, Mninwa Mahlangu, the well-liked chair of the NCOP, has a chance at last to make the council matter. He will have to do something fast if the NCOP is to have a say in the future of the system that gives it life.
Don’t hold your breath.
Nic Dawes is associate deputy editor