The purpose of the parliamentary rules is to ensure that the parliamentary vote is based on proper grounds. Do they do that?
“Parliament and other representative institutions like provincial legislatures and municipal councils have moved seamlessly from a period of performative and stylised sessions to the period through lockdown with no significant dip in productivity or performance. It really does signal to the public that its purported ‘institutions representative of the people and their interests’ are among the most lazily listless and useless organs of state.”
These sentiments were conveyed by a senior MP. Its truism was reflected in a statement released by Parliament on doApril 5, in which it defers oversight, one of its core constitutional obligations, to after the end of the state of disaster. It says: “Parliament will still, after this period, be able to hold the executive accountable, in the usual ways, over how it executed the state of national disaster.”
The day before, the leader of the opposition asked Parliament to establish an ad hoc committee to oversee the implementation of executive performance and the protection of civil liberties in the implementation and administration of public health, relief and disaster mitigation. While the deputy speaker of Parliament, Lechesa Tsenoli, “fully agreed that the National Assembly must continue to exercise oversight over the executive and the actions of organs of state … but that the task specified … was so broad and of such a nature that it would not be feasible for a single ad hoc committee to perform it”. Instead, Tsenoli argued, MPs should “continue with their individual oversight work in their constituencies and in the communities”.
There are three issues here. The first is Parliament would prefer to defer its oversight function to a retrospective one, post the state of disaster. This means political and executive excesses and abuses of power and authority could go unchecked. The second is that individual MPs are expected to conduct oversight as part of their usual constituency work, which is a rarity even under normal circumstances. The third — and most glaring — is the misconception of the role and function of representative institutions in which all power and authority is ceded to the executive. In extraordinary circumstances such as a state of disaster representative institutions naturally curtail some of their activities, while exercising others in innovative and flexible ways, particularly their oversight function. The limited and incorrect conception of oversight and the deferral of its exercise is the problem from which all the other problems of Parliament spring.
It is worth asking why there is reluctance on behalf of the governing party to accede to exercising oversight. After all, oversight is not about sabotage, nor is it meant to be obstructionist.
There is a conception of democratic politics and democratic government as confrontational and conflictual between the governing party and the opposition, and antagonistic between the legislature and the executive.
Of course, elements of confrontation will be present, especially when there is a tussle over grand political and policy decisions regarding resource allocation and benefit. But once a grand decision has been taken, as in this instance the declaration of the state of disaster, much less is seemingly at stake. Or is there?
Though there remains wide discretion for a governing party (which suggests why oversight remains vital), the nuance in oversight shifts towards its less conflictual and adversarial contours towards a more cooperative one. Oversight here takes on the spirit of cooperative mutuality and guidance, where those who have been given authority are guided in how to exercise it, and those entrusted with responsibility are aided to dispense it. This power of review (supervision, questioning and guidance) assists in the management, administration and implementation of policy — and the individuals, structures and organs involved with it — by supervising and checking on the performance or operation of a person or group responsible for it.
Oversight fulfils two key functions: direction-setting and guidance, supervision and review. It should thus be clear that oversight is relational to accountability, which is the extent to which decision-making and, more importantly, decision-taking and implementation is responsive to the needs of people.
South Africa is bedevilled by the triple challenges of a poor grasp of the role and function of oversight, poorly organised, and sometimes baseless opposition politics and the crude (ab)use of the governing party’s majority. In such a context oversight has not only become absent from Parliament and other representative institutions, but both oversight and responsiveness have been absent from individual MPs and public representatives in constituencies.
Since the declaration of the state of disaster, save for few notable exceptions, most MPs and other public representatives at the provincial and municipal level have been conspicuously absent, whether it is in public debates and discussions about special grants in aid, payments holidays on rates, social assistance and relief or other development and economic policy interventions. They could not even be bothered in the first few days to work in their constituencies and explain why the lockdown was important.
The same idea of lockdown cannot be applied in suburbs and the formalised, regulated areas and in the densified areas of townships and informal settlements. But it is equally foolish to think that regulation can function by creating different rules for different people. What would be more prudent is a variable, context specific application of rules.
The reality of South Africa’s highly fragmented racial and class spatial patterns means that different dynamics would take effect in different spatial zones. In suburbs and historically “formal” areas body corporates, rate-payers associations and other structures (or eagle-eyed private citizens involved in self and community policing) enforced the lockdown and shamed lockdown breakers into compliance. In these areas, the space and facilities for this kind of isolation is possible. The reality in denser townships and informal settlements, this mode of lockdown is impossible. But few public representatives were on hand to explain why physical distancing and isolation was necessary and how to creatively and contextually make it work.
Given the patterns of hand-to-mouth existence with little to no economic cushioning, extensive social safety nets and the confined spaces of township areas and informal settlements, it was expected that grocery stores would in the early days of the lockdown be overrun and would be busier than stores in towns and suburbs. It also took a few days to adjust to lockdown rules, but in those days (and since then) instances of police brutality and rights-infringing behaviour of the defence force have continued. Poorly trained and ill-equipped as they are, it behoves public representatives to assist the security forces and citizens in facilitating contextually appropriate health and safety behaviour. The police and army need to be stern with the stubborn and recalcitrant, but the discretion given to them is key to effectively managing the lockdown. Local public representatives should be instrumental to assisting and guiding locally deployed commanding officers in exercising appropriate discretion. Instead, it has been left to civil society organs to develop these guidelines, which public representatives and security forces continue to ignore.
There is a need for activating local level community organs — local civic, religious, sport, cultural and, political party branch leaders, ward councillors and ward committees — to coordinate and monitor the lockdown at local, specific context level through a persuasive public education approach to convince, rather than coerce, for compliance and to act a as liaison, communication and coordination pivot with law enforcement. But public representatives have been nowhere to be seen.
Workers in relief aid, social development and other welfare and development fields distributing aid have come across hurdles. One business school academic was interested in devising a rapid response to delivering food aid among the poorest but not a single municipality, nor a single public representative was able to provide data about indigence and need in their areas. Apart from exposing poor record-keeping practices, it demonstrates that public representatives may have misinterpreted the idea of social distance — they appear to be out of touch with their constituencies and cannot be bothered to keep up with dynamics within them.
Bottlenecks and inefficiencies have crept in as donors, civil society welfare organs and government officials (primarily from the civil service) established logistics for supply, storage, distribution and dispersal of aid. Some areas and individual households logged distress calls for aid, but were attended to only six days later. Surely local public representatives should be at the forefront of devising quick fix practices for resolving these problems? Where councillors have been involved in attempting to distribute food parcels and aid, some have been implicated in theft, hoarding aid and distributing it on a party basis for purposes of dispensing patronage. Councillors themselves should not be involved but they should assist with processes of vetting and distributing to beneficiaries.
When lockdown regulations were relaxed to allow informal fresh produce traders to trade, subject to obtaining a licence to do so, local councils neither developed the protocols for issuing these, nor did local councillors facilitate systematic ways in which these could creatively have been issued.
In the light of policy measures to aid the vulnerable, workers, micro, small and medium businesses, the South African Reserve Bank’s successive rate cuts of 100 basis points each (a cumulative 200 basis points), as well as large donations to the Solidarity Fund, oversight becomes critical. Effective oversight with a practical problem-solving bent could resolve the problems of nonfunctional websites and call centre agents being unable to guide aid applicants and businesses through the process, or respond to queries.
Yet oversight continues to be seen as a function that can be delayed. It is hardly surprising then that citizens have defrayed trust in public institutions, representative ones being the worst hit in this trust deficit.
Effective oversight and accountability are vital for responsive government, especially in times of crisis and emergency. This is not only to curb the unfettered use and abuse of power and authority, as has been the case with some in the executive and in the security establishment. Without accountability measures, decision-makers and decision implementers cannot have their decisions and actions supervised and fixed, and any misdemeanours, mistakes and maladministration would not be corrected. In the absence of accountability measures, abuses of power may occur. In this context, corruption and other forms of misconduct thrive.
The executive is consolidating policy plans in the economic sectors, investment, employment and infrastructure development, governance state capacity and institutional development, social protection, human development, international cooperation, trade and security and justice and crime prevention. This is a wide ambit that creates the scope and space for predatory and capricious abuse. Vigilance is vital.
South Africa has suffered enough from a decade of corrupt capture, and the absence of oversight sows the seeds of further corrupt crony capitalist capture. And in a rapidly evolving situation that is fluid and unpredictable, the lethargic and staid attitude of lacklustre public representatives, who are unimaginative and inflexible, is something South Africa can ill afford.
Ebrahim Fakir is the director of programmes at the Auwal Socio Economic Research Institute (ASRI), and member of the board of directors of Afesis-corplan, a nongovernmental organisation in the Eastern Cape. He is also a member of the advisory council of the Council for the Advancement of the South African Constitution