Legislation approved by the larger National Assembly, or lower house, is referred to the National Council of Provinces before usually being passed into law with a signature from the president.
Cynics point to the pernicious influence of the party-list system, used to keep MPs on side, to the omnipotence of Luthuli House everywhere, except in the Western Cape, and to the "rubber-stamp" characteristics the legislature has adopted since the heady days when Thabo Mbeki was president and Jacob Zuma the leader of the ANC.
That was a Prague Spring of short duration, when Cabinet members saw their policies being thoroughly interrogated for the first time in a long time. This ended with the short Kgalema Motlanthe presidency.
But there are signs that the council of provinces does not regard itself as a rubber stamp, either for the national assembly or for Luthuli House's ideas. Only two ANC members of the assembly abstained from voting on the Protection of State Information (or "secrecy") Bill, but it has not had a smooth ride in the council. After taking it to the provinces, as required, the council suggested far-reaching amendments, which would come close to the public-interest defence sought by the Right2Know (R2K) campaign against the Bill.
The threat of a constitutional challenge to the legislation seems to weigh on the ANC caucus, which enjoys a comfortable majority in the council. Recently the chief whip in the assembly castigated MPs for shoddy work on legislation that was successfully challenged in the Constitutional Court. The council must know that R2K is watching it with a view to just such a challenge.
Another Bill now tabled in the council raises similar issues. The SAPS Amendment Bill seeks to address the judgment in the Glenister case by making small changes to the law that gave birth to the Hawks. The court ordered that the Hawks be made independent of political interference. The deadline is September 18. But the ANC is allergic to any loss of control by Luthuli House, hence the minimal approach. The problem facing the council is that the panelbeating of the Bill in the lower house has rendered it unconstitutional.
At Mangaung, Luthuli House wants to tick the box next to the Polokwane resolution that says, in effect, dissolve the Scorpions and create the Hawks within the police. So the cadres deployed in the council have a problem. They have to find a way to create constitutionally compliant legislation that satisfies the requirements of the Glenister judgment and also keep their political bosses happy.
This is legally impossible. If the commissioner of police is in charge, the Hawks are manifestly not sufficiently independent. If the head of the Hawks is in charge, then an untenably unconstitutional result is inevitable. Checkmate.
It can reasonably be anticipated that both Bills will pose conundrums for Luthuli House. The way the council deals with them between now and December will be a good gauge of the ANC's direction. A rejection of the council's amendments to the secrecy Bill and keeping the Hawks in the police will mean it is business as usual at Luthuli House. A postponement to next year of either or both Bills, or their radical revision in the council, will indicate changes in ANC policy.
It will be easier to postpone the secrecy Bill because there is no court-imposed deadline. Postponing the SAPS Amendment Bill would require an application to the Constitutional Court, for which reasons for the delay will have to be found. Either option points to a new and more muscular role for the council – which is good news for constitutional democracy in South Africa.
Paul Hoffman is the director of the Institute for Accountability