Editorial: Legislature faces a litmus test

President Jacob Zuma delivers his State of the Nation address in Parliament. (Gallo)

President Jacob Zuma delivers his State of the Nation address in Parliament. (Gallo)

And to carry out the complex job of drafting laws without falling foul of the Constitution or inviting unintended consequences.

This week’s hasty revision of the Sexual Offences Act, which was passed in a form that failed to stipulate sentences for an array of crimes, is an example of the kind of patching-up work that all too often has to be done as a result of MPs dropping the ball. The outright rejection by some provinces of the Traditional Courts Bill in the same week illustrates that sometimes no amount of patching up can save a bad concept.

There are many reasons for parliamentary failures. The steady drift away from the legislature by the ANC’s most talented politicians – promoted into the government, diverted into business, sidelined or forced out for dissenting views – is a major factor. So is the lack of direct accountability by individual MPs to voters, rather than to party bosses. But there are more basic reasons, too, notably a woeful lack of research capacity and legal support, recognised and bemoaned for years by the presiding officers, but largely unaddressed.

The consequences can be a good deal worse than mere error. The potential of the executive, which has vastly more resources, and narrow interests within the ANC to capture the legislative process is probably the biggest risk Parliament faces at present.

It is to the credit of legislators over the past 18 years that they have often resisted such pressure, making significant changes to proposals emanating from the government, changes that show a responsiveness to the political intent of the ruling party, to public participation and to the demands of the Constitution. Can they do so when it comes to the Protection of State Information Bill?

The fate of the Bill now hangs on a simple question: Who legislates?

Drafting problems
The committee in the National Council of Provinces that has been working on amendments to the Bill proposed significant changes that began to address some of the concerns raised by civil society groups, the media and lawyers. There were some drafting problems that arose as a result, but the political shift was clear.

Now the state security department, in the person of acting director general Dennis Dlomo, has told the committee it rejects the changes. Of course it does. It was from the department that the original deeply flawed legislation emerged and it was Dlomo who led the charge against criticism of the Bill in its original form.

The committee has heard his concerns before and its revisions are an attempt to produce a law that takes account of public concern about the threats posed to democracy by increased protection for state secrets, while still meeting the department’s security objectives.

The question the committee and Parliament as a whole now face is whether they are capable of legislating in the face of pressure from a powerful government department and of translating the political shift they have already signalled into more coherent law.
If the answer is “no”, then the legislature will be admitting that it is happy to see itself as a theatre where the rituals of democracy are performed to an empty gallery with plenty of sound and fury, but little substance.

Some MPs are happy to act out a charade. Many are not. They must make their voices heard.

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