November 28 marked the end of Parliament’s oversight programme for 2014. Since the election of our fifth democratic Parliament in May this year, all eyes have been on the National Assembly as opposition parties, spearheaded by the Economic Freedom Fighters (EFF), challenged President Jacob Zuma to answer questions related to the public protector’s report on Nkandla.
The recent goings-on in the house have placed a welcome spotlight on the functioning of Parliament, its independence from the executive and its persistent failure to hold the ANC-led executive to account.
Unfortunately, little has been said about the day-to-day work of Parliament, which takes place in the committees. Committees are the engine rooms of Parliament. Not much is made of the law-making functions of committees, but they are the lifeblood of parliamentary oversight over the executive.
It is in committees that detailed discussion and debate should take place on the priorities and performance of departments. The committee members should reflect on and provide guidance to government performance, budget allocations and progress towards the goals of social justice and redistribution.
Committees should be asking the difficult questions of ministers and senior officials to ensure that government programmes and budgets respond to the needs of the people of South Africa.
These are the issues at the heart of service delivery failures. Committee members should be holding the executive accountable over the delivery of healthcare, quality education, access to justice, land reform and progress towards addressing violence against women and gender inequality.
But in May 2014, a decision was taken that saw a reduction in the number of members that make up the committees of the fifth Parliament. It is a decision that has seen further erosion of the goal of robust debate and oversight within Parliament.
Although the House seems to be in chaos, there is an urgent need to scrutinise the increase in political interference in the functioning of committees, resulting from the ANC’s continued dominance.
The Constitution clearly states that our multiparty democracy is meant to “ensure accountability, responsiveness and openness” of elected representatives to the public. Parliament, in the South African vision of democracy, must play the critical role of upholding the Constitution, representing citizens, reforming and developing law and exercising oversight over the executive.
But the majority of South Africans vote for the ANC, which has the consequence of the continued dominance of a single political party in Parliament, which undermines this vision.
Independent legislatures are central to the democracy envisaged in our Constitution, which emphasises the separation of powers between the three spheres of government: the executive, judicial and legislative.
This is undermined by the closed-list proportional representation system, whereby the public vote for the party and the party nominates the representatives. This motivates elected representatives to be responsive to party leaders rather than to the public.
Because most senior party members are ministers and deputy ministers in the executive arm of government, members of Parliament, tasked with oversight over the executive, are therefore junior and their place on the party lists is dependent on not annoying senior members.
This broader political system and context leads to dominance of the executive over legislatures and poor responsiveness to civil society. These factors stymie parliamentary responsiveness to citizens and further weaken parliamentary oversight of the executive, especially when there has been clear executive abuse of power.
Parliament is mandated to involve the public in its business, from law-making to oversight. On law reform at least, there are frequent opportunities for public engagement. In spite of this, people continue to express extreme frustration at the limited influence that public participation has at this level.
Although it can be argued that, by voting for a party, people’s interests are represented, the constitutional requirement for public involvement, and numerous other documents ranging from the Reconstruction and Development Plan (1994) to the Strategic Plans of Parliament to the Constitutional Court, emphasise that South Africa’s is a participatory democracy, one in which the public must be engaged beyond voting in national elections to ensuring that people have input into decisions that affect them on an ongoing basis between elections.
These past months have seen a whirlwind of activity in the committees. Chief among their business has been the annual oversight process for committees to develop budget review and recommendation reports.
These reports provide the basis of oversight on spending and performance of all government departments over the past year. To put it in context, the committees were assessing the estimated R1.14-trillion spent in 2013 by government. The timeframes for these processes are ridiculously short, allowing little in-depth discussion or effective oversight.
Perhaps more time is not what’s needed; witnessing the interactions between some committees and government departments, civil society organisations noted that in many the process was typified by a congratulatory, supportive approach towards the executive, with the difficult questions (generally raised by opposition or civil society) being avoided or brushed over.
Our experience since May 2014 is that there is little interest in the substance of what is presented by civil society to committees. Ruling party MPs seem uninterested in civil society inputs and the interest of opposition parties seems opportunistic. Similarly, critical input and questions from opposition party members in committees are fettered by ruling-party chairpersons. The work of committees is thus becomes a rubber-stamping exercise for ruling-party decisions.
The past 10 years have seen greater resistance to criticism of government performance. This growing resistance is evident in the responses of the legislatures to public input over the past five years and starkly so in the past year.
Although both the Constitution and the sector oversight model require public engagement with the oversight processes of the legislatures, committees seemed confused by requests by civil society groups to present departments’ strategic plans to them.
Although some committees, such as that on justice and correctional services, invite stakeholder input, most don’t. When approached, the committees on health and social development stalled and attempted to postpone public input to undefined future dates before eventually allowing the request.
Once requests were granted, the reactions of committees to the inputs were mixed; superficial and patronising at best and downright antagonistic at worst.
It appears that some committees weren’t sure what this stakeholder input was all about. The Treatment Action Campaign, the Budget Expenditure Monitoring Forum, Amnesty International and the University of the Western Cape’s Community Law Centre felt the full brunt of a defensive health committee chair. In the meeting they were accused of not presenting what they were supposed to, questioned about why they did not have input on every possible health issue, such as tuberculosis and mining, and ultimately informed by the chairperson that they were fortunate that she had not thrown them out of the meeting.
The threat of being thrown out is perplexing: these organisations were not causing a disturbance. They were presenting critical, relatively balanced analysis of the departments’ objectives and performance with recommendations grounded in the annual report of the departments, for future direction and spending in their areas of expertise.
In the social development, justice and correctional services committees, the chairpersons argued that the limited time available meant that there was no time for committee members to engage civil society presenters in discussion.
South Africa’s legislatures have, by all accounts, continued to function weakly. This weakness is offset by shifts in party politics; whereas they don’t fundamentally shift the ANC’s dominance, the increase in seats obtained by the Democratic Alliance and the advent of the EFF bodes well for greater contestation within the institution and potentially more robust oversight and greater responsiveness to the public as is evidenced by the dramas that have unfolded in the chamber. The question is: Will this drama play out in the committees where the real work of Parliament takes place?
The lip service paid by the legislatures to the value of public input belies the practice, which is too often patronising, dismissive and, at times, hostile. Likewise, robust oversight is bedevilled by weak capacity and lack of political will.
Yet, when considered in relation to the level of scrutiny on the independence of the judiciary and the performance of the executive in delivering on its mandates, legislatures have, to a large extent, been flying under the radar of public scrutiny and civil society action.
These numerous failings of the legislatures beg the question: Why bother? But, as with failures in realising many human rights, the constitutional role envisaged for the legislatures in this democracy must be defended and claimed and the continued narrowing of that political space resisted.
We hope that the theatrics in the house over the past few weeks will lead to a more constructive debate over the day-to-day health and functioning of Parliament and South Africa’s democracy.
Thoko Madonko works at the Budget Expenditure Monitoring Forum. Sam Waterhouse works in the Community Law Centre at the University of the Western Cape.