Parliament re-opens on February 12  2015 with President Jacob Zuma’s annual State of the Nation address. It’s a moment that is being more keenly anticipated than usual, as we wait to see whether the Economic Freedom Fighters (EFF) will make good on speculation that they will disrupt Zuma’s address, in an attempt to force him to answer questions about spending on his Nkandla residence (the party’s website is even running a “Sona countdown Zuma #paybackthemoney” clock).

This marks the culmination of a year – 2014 – that saw Parliament in the news to an unprecedented extent.  From contestation around the President’s failure to appear in the house to answer questions, Parliament’s response – or lack of one – to the Nkandla report by Advocate Thuli Madonsela, the Public Protector, to the theatre of debate about the appropriate clothes to wear in Parliament, this Parliament captured public attention to an extent that recent Parliaments had not.

But the memories of riot police entering the National Assembly, condemned by opposition parties as an attempt to intimidate and silence them, provide a chilling reminder that, for all the theatre, there are high-stakes and deadly serious issues at stake.

The drama of 2014 has, if nothing else, enlivened perceptions of an institution that was previously moribund in the eyes of many. The defining feature of public perceptions of Parliament since an initial, brief post-1994 honeymoon is of an ineffective, toothless institution that is a collective slave to the ruling party. Analysts regularly decry Parliament’s failure to hold the executive to account. As a Business Day editorial on 3 December 2014 put it:

“The words ‘Parliament’ and ‘dysfunctional’ have become virtually synonymous in SA over the past few months as opposition parties ramp up the pressure on African National Congress …  MPs to hold the executive – especially President Jacob Zuma – to account, as the constitution enjoins them to do.”

This failure to hold the executive, and in particular the President, to account, is central to current criticisms of Parliament. DA parliamentary leader Mmusi Maimane has written that “President Zuma has done everything possible to avoid accounting to citizens and Parliament, which elected him”. The DA has also accused the ANC of having “captured” Parliament, and using it to “protect and defend” President Zuma.

But dissatisfaction with Parliament is not a new phenomenon. Some trace the accountability gap to the shutting down of the Standing Committee on Public Account’s (Scopa) investigation of the arms deal at the turn of the century.

Prior to that, South Africa’s first democratic Parliament has been described as “glorious”; the second as one that, though less dynamic, “still seemed to matter”; and the third and fourth as “comparatively lacklustre affairs”, barring brief spurts of activity during the Kgalema Motlanthe presidency and in the immediate aftermath of Zuma’s election in 2009. The fifth (current) parliament is seen as one of a very different character to its predecessors, a change attributed in large part to the EFF’s arrival on the scene.

Critics of Parliament’s failure to perform an oversight function – what the nature of that function should be is something we’ll return to in a moment – note that the strength of the ANC, and an electoral system where parties draw up lists of candidates for Parliament, creates a situation where members of parliament are accountable to the executive, and those in the executive in turn to the President and the secretary-general.

My UCT colleague Pierre de Vos has described this as an “inherent conflict” for members of the majority party, who are required, as parliamentarians, to hold the executive to account and debate important issues, whilst being subject to the discipline of the party they represent. As de Vos asks, “[h]ow do you hold the members of government accountable if they are leaders of your party who may have a decisive say in whether your name appears on the electoral list at the next election?”

The recall of former president Thabo Mbeki showed that accountability tends to be primarily to the party, rather than to Parliament. It has been charged that “Parliament has become a rubber stamp for decisions taken in [the ANC headquarters at] Luthuli House.”

This concern was starkly illustrated in April 2014 when Buti Manamela, an ANC member of parliament and head of the Young Communist League (YCL), was reported as saying that he acted on orders directly from Luthuli House. Political commentator Christi van der Westhuizen commented that the statement showed how “internal hierarchies of political parties undermine the separation of power between the legislative and executive arms of government.”

On the other hand, policy direction has to come from somewhere, and it would be unrealistic to expect that there will be no direction from the party whatsoever over the actions of its members in the legislature. But that makes it all the more crucial that, in a political system still largely dominated by a single party, that party itself respects the need for different branches of government to provide checks and balances on the powers of each other.  And this issue, of how the doctrine of the separation of powers applies to parliament, particularly in relation to the executive, has not received as much attention as it should.

The separation of powers is a principle that has, as I’ve noted before on these pages, received a lot of public attention in recent years in relation to the judiciary. Judges have been placed under increasingly close scrutiny from members of the other branches of government, both in the process of their selection, and in general public dialogue. The most striking example came in an infamous opinion piece by the current Minister of Mineral Resources, Ngoako Ramatlhodi, in September 2011. At the time Deputy Minister of Correctional Services as well as a member of the Judicial Service Commission (and therefore a member of the body constitutionally tasked with selecting judges), Ramatlhodi wrote that:

“An orderly retreat for the regime meant giving up elements of political power to the black majority, while immigrating substantial power away from the legislature and the executive and vesting it in the judiciary, Chapter 9 institutions and civil society movements. …

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. …

[T]he black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society. … Regarding the judiciary, a two-pronged strategy is evident. The first and foremost is to frustrate the transformation agenda by downplaying requirements of gender and colour representation. … The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony.  The legislature itself has not escaped the encroaching tendency of the judiciary, with debateable decisions taken by majority views, in some instances.”

The following year, Ramatlhodi was quoted as saying that the courts were being used to “replace the executive”, and that a “minority tyranny” was “using state institutions to undermine democratic processes at this juncture in our country”.

President Zuma and ANC Secretary-General Gwede Mantashe have expressed similar sentiments, to the effect that the courts are being used to thwart the will of democratically elected branches of government.  This push-back is reflective of the number of politically-related cases that have been contested in the courts which, in a different constitutional scenario which lacked the courts’ strong powers of review and the ANC’s political dominance, would be expected to be fought out in Parliament.

While it is true that judges are given considerable power under our constitution to overrule legislation and action by branches of government which are democratically elected (unlike the judges themselves), the issue is inevitably somewhat more complicated.

There is a major shortfall in the public debate, which has focused almost exclusively on the relationship between the courts and other branches of government.   Although one would not know it from listening to much of the recent public debate about the separation of powers, the principle also applies between legislature and executive. And this underlies the frustrations of those who bemoan the failure of Parliament to hold the executive (and, less exactly, the ANC) to account.

With Parliament at the heart of South Africa’s current political drama, it is a good time to try to expand the debate, and ask questions about what these recent imbroglios say about the role of parliament, its relationship with other branches of government – particularly the executive – and its future.

From where do we source the demand for Parliament to ensure executive accountability? To answer this, we need to turn to the Constitution. Section 42(3) says that the National Assembly:

“is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action.” [Emphasis added].

In allocating powers to the National Assembly, the Constitution requires that it provide mechanisms to, among other things, “ensure that all executive organs of state in the national sphere of government are accountable to it”, and “to maintain oversight of … the exercise of national legislative authority” (Section 55(2) of the Constitution. Similar provisions are made in respect of the National Council of Provinces). Cabinet is also specifically made accountable, collectively and individually, to Parliament, and this includes an obligation to report regularly (section 92). However, the effectiveness of this process is limited due to the ability of a majority party to control parliamentary proceedings.

Parliament may also remove the President and members of cabinet from office, via a so-called motion of no confidence, by a majority vote (section 102 of the Constitution). Parliament is in fact due to debate such a motion on  February 24, after long-running efforts by opposition parties to bring the motion.  However, the current balance of political power makes the success of such a motion a theoretical possibility only. MPs of the majority party who depend on that party to continue their careers are unlikely to vote in favour of such a resolution.  Section 89 also allows for impeachment of a President by Parliament on prescribed grounds, although this requires a two-thirds majority vote in the National Assembly, and so is probably even less likely to succeed than a no-confidence motion.

So it could not be clearer that a major aspect of the role that the Constitution envisages Parliament play is to provide a check on the powers of the executive, and to ensure that the executive is accountable to it. Why is this so? Well, it is Parliament that votes on the budget under which government operates, as well as being the directly elected representatives of the people. By contrast, and unlike the system of direct Presidential election in countries like the United States, no members of the South African executive are directly elected to those positions by the electorate. (This point is seldom made when criticisms are made of the judiciary undermining democratically elected branches of government).

As we have seen, it is widely felt that Parliament has not been at all assertive in this oversight role.

In the heat of these debates, it is worth remembering, as idealistic as it may sound, that our Constitution is supreme law, and all branches of our government are bound to act in accordance with it. For Chief Justice Ismael Mahomed, in the 1999 Supreme Court of Appeal judgement of Speaker of the National Assembly v De Lille, reminded us that:

“[T]he Constitution … is Supreme – not Parliament. It is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship, and no official, however efficient or well-meaning, can make any law or perform any act which is not sanctioned by the Constitution. … [L]aw or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled.”

It would be unrealistic to expect that party politics would have no impact at all on Parliament’s activities. It would of course be naïve in the extreme to imagine that the realities of our party list system would not have an impact on the zeal with which parliamentarians would exercise their oversight functions over senior members of their own party. But we should not lose sight of the role that the Constitution expects Parliament to play, nor give up on hoping that more parliamentarians live up to that goal.

And there have been occasional signs of stirring within the legislature, which suggest that ideas of the separation of powers and executive accountability are not entirely abandoned.  In late 2014, City Press reported a push back from ANC parliamentarians against efforts by Deputy President Cyril Ramaphosa to broker a “peace deal” with opposition parties. The article cites concerns that can very much be grounded in the separation of powers between executive and legislature, with ANC MPs quoted as saying that such a deal should have been entered into by the Speakers and Chief Whips, “instead of Ramaphosa, who represents the executive”; and that Ramaphosa was “interfering with an act of Parliament”. An “angry senior ANC MP”  is quoted as asking “[h]ow do we allow the executive to come and interfere with Parliament like that?”; and another charging that Ramaphosa misunderstood his role as leader of government business in Parliament.

Stirring stuff. Leaving the politics of it aside, this suggests that there is still hope for a separation of powers, and a pursuit of executive accountability. And it is important that these flashes of independence continue. Some of the ruling party’s actions in 2014, in striving to protect the President from scrutiny at all costs, came at a great cost. Some commentators suggested that Parliament’s response to the Public Protector’s Nkandla report could presage a constitutional crisis. It could probably be premature to say that we are about to hit such a crisis now. But if parliament does not assert its oversight role, and the executive and the ruling party do not respect its right to do so, we will surely be placed in that position sooner or later.

 

Main Photograph: – By Delwyn Verasamy

Will President Jacob Zuma tuck the nation into bed tonight with a sonorous lullaby masquerading as a State of the Nation address or will he be forthright about Nkandla, Eskom, the problems at the South African Revenue Service, the compromised independence of the National Prosecuting Authority, the spook-state he is seemingly building and running parallel with our Constitutional democracy. We’ll know when the supine parliamentarians file into the national legislature this evening

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