Deepening Democracy: Parliamentary Accountability
29 August 2019
PARLIAMENT’S CONSTITUTIONAL DUTY
The purpose of the two houses of Parliament, is to carry out and fulfil their constitutionally enshrined functions and duties. As far as the National Assembly is concerned, the Constitution describes it as follows:
“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.”[1]
The function of the National Council of Provinces (“NCOP”) is:
“The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.”[2]
In other words, Parliament’s two main functions are to pass legislation and oversee executive action.
PARLIAMENT’S LEGISLATIVE FUNCTION
The legislative function of Parliament is well known and the limits of its authority in this sphere are that it is only bound by the Constitution and must act within the limits of the Constitution.[3] Parliament is accountable to the courts for this function, but of course, it requires persons to go to the considerable effort of placing a particular piece of legislation before a court for it to be reviewed. If Members of Parliament (“MPs”) wish to apply to the Constitutional Court for an order declaring any part of an Act of Parliament to be unconstitutional, at least one-third of the members of the National Assembly must support the application, within 30 days of the presidential assent being given to the legislation.[4]
Whilst the necessary research and drafting of legislation are in principle drawn up by government departments (not in Parliament), the parliamentary support structure is able to assist in this process.
PARLIAMENT’S OVERSIGHT FUNCTION
Parliament’s constitutionally mandated function of scrutinising and overseeing executive action is not as familiar to the public. In respect of this function, the Constitution requires the National Assembly to provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it.[5] The Constitution also empowers the National Assembly to summon or compel any person or institution to report to it, give evidence on oath before it or produce documents.[6]
Whilst it is admirable that the Constitution grants Parliament such wide-ranging powers of oversight, a problem arises from the fact that MPs are indirectly elected by the South African electorate. It is indirect because the South African electoral system works on proportional political party representation in Parliament, with MPs being appointed (by such parties) from closed party lists. What this means is that South African voters do not have a direct say in the appointment of individual MPs. In addition, voters have no means of effectively holding MPs accountable, as MPs are highly susceptible to putting their party loyalty above their constitutional and representative duties – not only to ensure their continued appointment as MPs by their respective parties in future elections, but also to avoid removal from Parliament. It is not generally known that MPs lose their seats if they cease to be members of the party that nominated them to the National Assembly.[7]
PARLIAMENTARY COMMITTEES AS PART OF THE OVERSIGHT FUNCTION
The ‘mechanisms’ that Parliament use to ensure that government is accountable to it, include legislation, budget debates and parliamentary committees. Committees offer a setting which facilitates detailed scrutiny of legislation, oversight of government activities and interaction with the public and external experts. In theory, parliamentary committees could be an effective mechanism for MPs to conduct oversight of the organs of state. They are empowered to request a briefing from the organ of state assigned to them for oversight or to visit the organ for purposes of fact-finding.
One of the most glaring examples of the deficiency of Parliament’s oversight was highlighted by the Constitutional Court in 2016, when it held that the National Assembly failed to hold former President Jacob Zuma accountable for the Nkandla affair by disregarding the remedial action called for by the Public Protector in her “Secure in Comfort” report[8]. The Court held that holding the executive accountable is a primary obligation imposed upon the National Assembly.[9] One of the few exceptions to the Fifth Parliament’s abysmal oversight record is the Portfolio Committee on Public Enterprises’ inquiry into governance, procurement and the financial sustainability of Eskom in 2017/18. This was prompted by the advanced state of disarray of the state owned enterprise and an ensuing public outcry. In other words, the Portfolio Committee did not lead the charge in this instance but was rather a case of not wanting to be left behind.
Even when MPs attempt to perform a part of their constitutional duties in committees – such as in the recent proposal to amend the property rights clause in the Constitution – they mostly appear to pursue a predetermined outcome (often with an agenda defined in private by the party they represent). Another example is provided by the recent Select Committee on Police, where it considered the extension of the term of office of the Executive Director of the Independent Police Investigative Directorate (“IPID”). The conduct of ANC MPs in the committee smacked of that to be expected in a kangaroo court.
CONCLUSION AND RECOMMENDATIONS
In considering Parliament’s own accountability to the electorate, one is confronted by the fact that not only are MPs elected indirectly on party lists, but they are also under the threat of being expelled from Parliament if they are ejected from their parties, for whatever reason. It is therefore not surprising that party loyalty is the overriding consideration and not that of any sense of personal accountability to the electorate in general or that of a specific constituency.
The problem is clearly demonstrated by Parliament’s refusal to exercise its oversight over President Zuma’s refusal to respect the Public Protector’s remedial action on the Nkandla affair. Whilst this case was taken to the Constitutional Court by opposition parties, it is simply not possible for dissatisfied portions of the electorate to take such costly and time-consuming steps every time Parliament does not deal with its oversight functions as it should.
However, given the fact that MPs in general follow the party line for reasons set out above, what interest is there for them to stand up to be counted? A more clearly defined sense of personal responsibility is required to bring about a change – but how can this be brought about?
One way in which accountability by MPs (and therefore Parliament as a whole) can be improved is by reforming the electoral system. Sixteen years ago, a Report of the Electoral Task Team (known as the Van Zyl Slabbert Report), recommended fundamental reform. Essentially, the Van Zyl Slabbert Report recommended that multi-member constituencies (consisting of a recommended 69 constituencies) elect 300 MPs to the National Assembly through the votes of the electorate of each constituency, with a compensatory closed national list providing the remaining 100 MPs. These 100 seats would be apportioned to restore representative proportionality in Parliament as a whole, through an implied system of two votes: one for the constituency candidate, and one for a party on national level. This would make up the total of 400 MPs allowed by the Constitution. In order to do that the current 9 multi-member constituencies (being the 9 provinces whose elected members make up the NCOP – a house of Parliament) would be expanded to these 69 constituencies. The number of representatives that would be elected in such constituencies would vary, depending on the number of voters – from 3 to 7 – for a national election.[10] This would make at least 300 of the 400 MPs directly accountable to the electorate of the constituency which voted the candidates in, based on published party lists of candidates. The party lists would have different candidates for each constituency.
It is important to note that such an amended system would not lead to a change in the overall composition by the party in Parliament – each party would still hold the same number of seats that it would under the current system. However, 300 individual MPs would be accountable to specific constituencies, and the voters in those constituencies could take it upon themselves to ensure a greater degree of personal responsibility by their constituency’s MPs. The MPs would not want to risk losing their constituents’ support and position in the following election. It is assumed that this form of accountability will have a knock on effect as MPs will be inclined to perform their constitutional duty by holding the executive to account – which would provide for more transparent and efficient governance by any ruling party.
Anton van Dalsen, Legal Counsellor and Lee-Anne Germanos, Legal Researcher, Helen Suzman Foundation.
Footnotes:
[1] Section 42(3) of the Constitution of the Republic of South Africa.
[2] Section 42(4) of the Constitution.
[3] Section 44(4) of the Constitution.
[4] Section 80 of the Constitution.
[5]Section 55(2)(a) of the Constitution.
[6]Section 56 of the Constitution.
[7]Section 47(3)(c) of the Constitution.
[8]Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others(CCT 143/15; CCT 171/15) [2016] ZACC 11 at para 97.
[9]Supra at para 43.
[10]Pages 21 to 22 of the Van Zyl Slabbert Report.
