The following is the September 2001 text of a document by Gareth van Onselen originally prepared for release as a draft Democratic Alliance discussion document. It was however not published at the time.
THE MARGINALISATION OF PARLIAMENT
How the ANC has by-passed South Africa’s Parliament
FINAL DRAFT
An Internal Democratic Alliance Discussion Document
1 September 2001
1. INTRODUCTION
The Collapse of an Independent Parliament between 1995 and 2001
Writing in 1788, in the Federalist, James Madison argued that the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.[1]
Madison, one of the founding fathers of the American constitution, concerned himself specifically with the separation of powers. He argued that it was not enough for a constitution to define the boundaries between departments, as these merely represented “parchment barriers against the encroaching spirit of power”, but that it remained essential that those who administer each department be given the necessary personal motives to resist encroachments of the others. “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of place.”[2]
1994 saw the advent of a new democracy in South Africa. A new parliament was elected “for the people” and an interim constitution, followed by the final constitution, which stressed the accountability of the executive to parliament, was adopted. Determined to make a fundamental break from the past[3], and with most of its members drawn from strong traditions of accountability, parliament became the centre of a strong South African government.
Of late, a number of disturbing patterns suggest that parliament no longer occupies such a strong position. In July 2001 the African National Congress (ANC) controlled cabinet proposed and approved the first constitutional changes since 1994.[4] More recently, on 30 August, independent ANC MP Andrew Feinstein resigned from parliament. Feinstein played a pivotal role in the Standing Committee on Public Accounts, (Scopa) government’s most important watchdog, and his resignation has served to directly focus the public’s attention on the extent to which the majority party has directly undermined a seemingly independent committee. Explaining his decision Feinstein said “I have realised over the past few months that I can no longer play a meaningful role in parliament under present political structures.”[5]
These examples mark the latest developments in a worrying gulf that has continued to grow between the executive and the legislature since the ANC came to power in 1994. There has been a systematic and deliberate blurring of the line between party and state on the part of the ANC. The Principle of a separation of powers, as set out in Schedule 4 of the interim constitution and captured in the final constitution is gradually being eroded away. This process has seen those mechanisms designed to hold the executive to account substantially weakened as parliament finds itself increasingly marginalised. At the same time the ANC is slowly consolidating its position within the various government structures and civil society more broadly, as the organisation attempts to run as a parallel authority to the state. This can only be to the detriment of democracy.
2. THE CONSTITUTIONAL POSITION
Schedule 4, section VI of the South Africa’s interim constitution states that “There shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances to ensure accountability responsiveness and openness.”[6]
The final constitution addresses these provisions in various different sections, as they relate to a variety of aspects in government administration. They represent the key values that should guide an open and accountable democracy.
The Constitution and Parliament
Chapter 4 of our constitution regulates parliament. The key provisions of this chapter can be summarised as follows:
- Parliament as an institution refers to both the National Assembly (NA) and the National Council of Provinces (NCOP). (Section 42 (1))
- The NA is vested with the responsibility of ensuring “government by the people”. It does so, inter alia, by “scrutinizing and overseeing executive action”. (Section 42 (3))
- Parliament must create a committee to review the constitution at least annually. (Section 45 (1))
- The President and any member of the Cabinet who is not a member of the NA may attend and speak in the Assembly. (Section 54)
- In exercising its legislative role, the NA may initiate and prepare legislation (expect money bills) (Section 55 (1) (b))
- The NA and/or its committees have very wide powers to compel people to appear before it and to produce evidence. (Section 56) The same power is vested in the NCOP. (Section 69)
- The NA may make rules and orders regulating the way it does its work “with due regard to representative and participatory democracy, accountability, transparency and public involvement.” (Section 57 (1) (b))
- The NA must “conduct its business in an open manner, and hold its sittings, and those of its committees, in public”, but may exclude the public and the media from a meeting of the committee if “it is reasonable and justifiable to do so in an open and democratic society. (Section 59) The NCOP has similar rights. (Section 72)
The Constitution and the Relationship between the Executive and Parliament
Chapter 5 of our constitution describes the relationship between the executive and parliament. Once again, the key provisions of this chapter can be summarised as follows:
- The executive authority is vested in the President, and this authority is exercised together with members of cabinet. (Section 85)
- “The Cabinet consists of the President, the Deputy President and Ministers”. (Section 91 (1))
- Members of the cabinet are accountable collectively and individually to Parliament for the exercise of their powers and performance of their functions” (Section 92 (2))
- “Members of cabinet must provide parliament with full and regular reports concerning matters under their control.” (Section 92 (3) (b))
With regard to the role of parliament – the most important aspects to rise from the constitution are: First, the President and Ministers are accountable to parliament, whether this is the NA or the NCOP. Second, Ministers on whose behalf the President acts, are, together with the President, responsible for the Presidents actions. Third, parliament itself has a duty to oversee the activities of the executive, and to do so in an open and transparent manner. Fourth and finally, while cabinet has a right to introduce legislation, this right is shared by parliament.
The Corder Report on Parliamentary Oversight and Accountability
Commissioned by the speaker of parliament, Frene Ginwala, and compiled by Hugh Corder, Saras Jagwanth and Fred Soltau of the University of Cape Town Law Faculty, the report on parliamentary oversight and accountability was presented to the national parliament in July 1999[7]. It is a vital study that addresses a number of the themes that surround oversight and accountability and also makes several significant recommendations.
Essentially the report tries to account for the role that oversight and accountability plays in parliamentary procedure. It provides a framework for these two constitutional principles and looks at the role of the NA and the NCOP before turning to the existing procedures and practices for exercising oversight. The report argues that there are a number of shortcomings both in the way in which oversight and accountability are understood and reported on, as well as with regard the various structures and mechanisms intended to hold the executive to account.
To this extent the report makes three recommendations:
1. That legislation should be implemented in the form of an Accountability Standards Act[8] and an Accountability and Independence of Constitutional Institutions Act.
Both Acts would be designed to ensure that, amongst other things, committee reports and question time are given the appropriate weight and, in turn, function as effective mechanisms through which the executive can be held to account.
2. That amendment is made to the rules that govern the NA and the NCOP be made for the regulation of reporting to parliamentary committees.
As reporting plays a fundamental role in the flow of information between the executive and the legislature it becomes vital that committee reports are delivered, received and acted on in an effective and efficient manner. Presently, the report argues, there is no way of assuring that (committee) reports are delivered or read, with the result that there is no way of guaranteeing that they serve as effective oversight mechanisms.
3. Finally, that the report argues for the creation of a Standing Committee on Constitutional Institutions.
It is vital those constitutional institutions are independent and that it becomes impossible for the executive branch to influence or pressure decisions. Currently, it is possible for the executive to influence decisions through the way in which budgets are allocations or through how deployed. The report argues both these aspects need to be directly addressed.
It is significant that the Corder report has run into trouble with Parliament’s Accountability and Oversight Committee. “AMC MP John Jeffrey said Corder’s team failed to consult the heads of parliamentary committees… they also failed to speak to government departments and ‘I tag that that as a shortcoming’, Jeffery said.”[9] The resignation of Andrew Feinstein has again highlighted the significance of the report but none of its recommendations have been acted on to date. The committee is currently studying the report and its recommendations are being evaluated.
The constitution provides a comprehensive set of guidelines and conditions which government is required to implement and abide by. While it is relatively easy to identify and isolate each individual requirement within the constitution, it is the Corder report, which allows us to better evaluate broader, more general patterns, and trends that can and have undermined those constitutional principles outlined above. To this extent it is vital that these two documents be read together.
3. THE ANC
The internal structure of the African National Congress is complex. There are several important distinctions, peculiar to the ANC, which have allowed the organisation to run as a parallel authority to the state. On a number of levels, it is guided by a set of principles that ultimately run in the opposite direction to those constitutional values highlighted above.
The overarching problem is that the ANC still conceptualises its role as being that of a national liberation movement, despite the fact that the struggle against apartheid ended some 7 years ago. The consequence is that the ANC continues to perceive itself as responsible for the transformation of the whole of South African society. Internally, the party is guided by the principle of democratic centralism, which along with its policy of cadre redeployment, can be seen as a direct reflection of what it sees as its broader social, political and economic responsibilities.
The constitution only ever makes reference to parliamentary political parties (although significantly it fails to provide a definition). Conceptually, it does not cater for an organisation that boasts as wide and comprehensive an agenda as the ANC. As such, it has failed to provide parliament with the adequate resources or structures to ensure that the executive (or the ANC leadership) is kept in check. Where those structures and mechanisms do exist, the ANC has been allowed to systematically undermine them with little or no form of redress.
The ANC – Liberation Movement or Political Party?
The ANC has been well aware of this conceptual difference and was quick to spot that the new constitution, that would accompany and define the South African state after 1994, was a direct threat to the way in which it functioned. At the time the final Constitution was being framed, then Deputy President, Thabo Mbeki argued that the constitution should not get in the way of the ANC’s transformation agenda.
“…the elections of April 27, 1994 proved that the policy and the programme of the African National Congress constitute the composite will of the majority of the people. The ANC is seen by the majority as the custodian and guardian best suited to advance and defend the aspirations of the disadvantaged…The principle of majority rule, which is a central element in any democracy, is one of the most important instruments which we have in our plan to introduce fundamental transformations in our country. The Constituent Assembly is a forum which best reflects this principle.”[10]
Essentially, Mbeki’s logic is as follows: the ANC represents the majority of the South African population. As such the ANC in turn represents the will of the people. (Or should be seen as the mouthpiece of the nation.) Majority rule is a fundamental principle in any democracy. As the ANC represents the majority of the population the constitution should not impede on its transformation agenda, as this is the will of the people.
Captured in this idea is the underlying assumption that defines the ANC. It still sees itself as a liberation movement, mandated by the nation to transform South African society. It does not see itself as linked to a specific constituency or answerable to particular district, but rather as an overarching organisation responsible for every aspect of social, economic and political life within the country.
There are two sides to the way in which the ANC has used the idea of a nation (or the lack thereof) On the one hand the ANC also makes extensive of the notion of “nation building” mostly, when trying to shift responsibility away from the organisation. On the other hand the ANC is very quick to claim that they are, themselves, acting on behalf of the nation, as the situation suits them.
Ideologically, the ANC cannot make the transition to a parliamentary political party until it has completely vanquished all vestiges of apartheid. It is for this reason that the organisation places so much emphasis on the “demon of racism” as a fundamental problem in South Africa. The ongoing and persistent use (and abuse) of the race card in public and political debate is essential to the organisation being able to validate its particular structure and form.
Addressing the issue more directly, and more recently, Mbeki has argued that the ANC will only ever transform into a parliamentary political party once racism is completely eradicated:
“As so often happens in our country… the clever people, or those who thought they were clever, would ask - when will you transform yourselves into a party! Personally, I never understood what it was that occasioned this question. Frankly, I still do not understand both why the clever people thought they should pose this question and what, in any case, the question means… I would have assumed that the ANC would change its character once it had completed its historic mission - once the purposes for which it had been established had been accomplished. Because racism lives, the struggle continues!”[11]
The history of liberation movements in Africa is well documented, as is the manner in which they differ from political parties. Nowhere in Africa have they spawned democratic regimes and, far from promoting reconciliation, the ruling parties more often than not simply become instruments of domination by entrenched elites[12]
What characterises liberation movements is a stress on unity and the rejection of partisan divisions as destructive of the new nation. They function under the illusion that an entire country could have a single purpose and accept a single representative to speak as “the mouthpiece of an oppressed nation” Political parties operating within a democratic framework do not pretend to represent a people or a nation, but specific constituencies.[13]
Democratic Centralism and the Cadre Policy – Theory and Practice
Democratic centralism is a principle of organization that can be used (or abused) by any functioning group. (In this case, the ANC) The democratic part of the term refers to the equal participation and voice expected from all members of the organization. The centralism refers to the mandate that all members uphold all decisions made by the organization.
Democratic centralism protects the party from being discredited by individual cadres acting spontaneously. Recognizing individualism as a danger, centralism mandates that political lines and the practice they dictate be discussed and voted on by the membership before the party authorizes an action or statement in its name. The Mafikeng Conference (1997) explicitly stated that it expected “maximum political discipline” from its cadres. Either way, from within or without, centralism provides a structure that enables the party to exist separately from the state.
Recognizing that everyone’s personal lives have repercussions for the organization as a whole, the discipline of centralism allows the party to make rules to minimize the potential damage to the party. All rules controlling member behaviour are made internally and members are answerable first and foremost to the party hierarchy. “Party discipline ensures that the governing majority acts cohesively.”[14]
In this respect, the fact that the ANC has chosen to use democratic centralism as a guiding principle, demonstrates a distinct lack of faith in the members of the party to maintain discipline without a strict and rigid party structure. The other side of the coin is that centralism allows the party to dictate the particular direction or agenda from a relatively small base (the ANC National Executive Committee (NEC)) throughout the party.
In itself democratic centralism provides a powerful structure around which a political party might function. The problem comes, however when an organisation such as the ANC holds a significant majority. The party begins to run as a parallel authority to the state. Senior Ministers and members of the government are answerable first and foremost to the party hierarchy, reducing the role that parliament and the legislature can play in being an effective watchdog. Oversight of political action and policy becomes increasingly difficult with the result that the legislature’s role, to hold the executive to account, is systematically undermined.
On a practical level, democratic centralism has taken the form of a “cadre policy” whereby ANC party members, loyal first and foremost to Mbeki and the ANC hierarchy, are deployed to various positions within government and civil society.
In the run up to the ANC’s 50th National conference in December 1997, various discussion documents within the organisation reiterated the notion that the key to the ANC consolidating power within the country lay in the deployment of its cadres. At the conference itself the party officially adopted the cadre policy.
In late 1998 the ANC established a National Deployment Committee and a National List Committee designed to oversee the various deployment committees at all levels of state, and screen the various lists respectively. With both committees the final say fell to the NEC. These two committees gave the ANC enormous power over the party, both being dominated by members of the National Working Committee (NWC).
ANC cadres are required to remain loyal to the party hierarchy (as opposed to the Constitution) even if they have been appointed to positions within the legislature or the executive. In this sense the ANC cadre policy subverts the separation of powers. If deployed party members are bound by the decisions of the ANC leadership they cannot exercise their constitutional obligations properly.
Presently, cadres have been deployed to numerous “key centres of power”[15] such as the National Prosecuting Authority, the Intelligence Services, the Reserve Bank, the Public Service, Foreign Service, Nedlac, the GCIS, SARS and Transnet amongst numerous others.
Cadre redeployment also opens up massive powers of patronage to the party hierarchy. Through the NEC, NWC and the National List Committee, the ANC is able to offer the “incentive” of a higher position to members who occupy a lower rank within the ANC internal structure or the threat of “demotion” should a member break with party discipline. Refusal to accept deployment is also a serious (expellable) offence.
The ANC’s deployment strategy, adopted by the ANC’s NWC in November 1998, stated explicitly, that ANC members in the legislatures must be informed by and accountable to the party hierarchy. The document stated that the ANC “must have a clear understanding of the system of supervision and decision-direction we need put into place, to ensure that our army of cadres discharges their responsibilities in accordance with decisions which the movement have made.” The document called for the strengthening of “political and administrative control and supervisory structures of the ANC” in the national and provincial legislatures.
Not only is this the language of a liberation movement, but phrases such “army of cadres”, and “deployment” itself, are paramilitary in nature. Indeed, the majority of terminology that permeates through the ANC’s policy on democratic centralism and cadre redeployment, constantly alludes to an operation akin to something a military organisation might undertake. Conceptually, this serves to further distance the ANC, as a liberation movement, from conventional parliamentary political parties.
Further, the Corder report notes “our executive is not only chosen from the legislature but also primarily from the leadership of the majority party. In addition like many other parts of the world a strong party-based system exists in South Africa. This can hamper effective oversight as members of the legislature may be reluctant to call to account a government that is made up of leaders of their party. This is further exacerbated by the electoral system of proportional representation because members of parliament presently retain their seats through their membership of political parties. Members of the majority party in particular may be unwilling to subject the government to rigorous scrutiny for fear of being perceived as disloyal or even expulsion from the party and consequent loss of their parliamentary positions.”[16]
There are clear and definite examples of where these two structures – the ANC and the state – overlap. Max Sisulu currently sits on the ANC’s NWC and is also the deputy CEO of Denel. Frank Chikane sits on the ANC’s national list committee and is also the Director General in the President’s office and Joel Netshitenzhe sits on both the ANC’s National Executive Committee and the National Working Committee while serving as head of the Government Communications and Information Service.
The question then becomes – how can the ANC members in parliament be expected to exercise their constitutional obligation to hold the office of the President or Denel to account when the Director General of the Presidents Office (Chikane) and the CEO of Denel (Sisulu) have, in their party capacity, the power to make or break careers.
The Role of the Speaker
ANC MP Frene Ginwala, the speaker of parliament sits on both the ANC’s National Executive Committee and the National Working Committee. In a letter to Scopa chairman Gavin Woods, dated 11 May 2001, Ginwala criticized Woods for claiming that Ginwala had been “by design” instrumental in sidelining the committee.[17]
This was to become the centre an intensive political and public debate on the role of the speaker within South African parliament. The essential concern being that, as the speaker had to balance the demands of a parliamentary system and a powerful party structure, the institutional independence and impartiality of parliament was being damaged.[18]
But it has been argued that the problem is far more wide reaching than the arms probe. It is the speaker of the National Assembly’s principle role to oversee and advance the interests of the legislature against the “encroachments” from other areas of government. Yet the speaker has persistently refused to involve herself in numerous significant attacks on the independence of parliament by the ANC majority.
“Questions about the correctness of Speaker Frene Ginwala’s recent conduct are part of a pattern undermining our parliamentary system. Somehow the ANC got away with tarnishing the credibility of the Standing Committee on Public Accounts (Scopa)… In the process Scopa lost its non-partisanship. Then the Ethics Committee failed to live up to its name after failing to extract answers from Tony Yengeni about his non-disclosure of assets…Ginwala has, in a sense, presided over all of this.”[19]
In England, where parliamentary democracy was born, the speaker is barred from political activities and is required by protocol to socialise equally with members of all parties to avoid even the perception of political bias.[20] More importantly, in England the speaker is required to resign from their particular party before being allowed to take office.
The ANC has been very quick to defend Ginwala. In a debate on the speaker’s role in parliament, they brought out three political heavyweights in Public Service and Administration MP Geraldine Fraser-Moleketi and senior MP’s Pallo Jordan and Jeremy Cronin, each of who defended the speaker fervently. The ANC then used its majority to pass a motion of confidence in the speaker. Significantly, the three MP’s most caught up in the debate over the Speaker failed to cast their votes, among them independent ANC MP Andrew Feinstein.
Can the speaker be accountable to a party but answerable to parliament? The outcome of the debate surrounding the speaker’s intervention into the arms probe would seem to suggest that the two are mutually exclusive.
How does the ANC conceptualise the role of Parliament?
Prior to the 1994 election the ANC did began to construct a number of documents addressing the idea of an alternative government directly. In a document entitled “Ready to Govern” The ANC argues that, “the right to information must be secured, together with a free press and public media, which is controlled neither by the state nor by political parties.”[21]
Dealing first with “the right to information”, the view expressed above is reiterated in the Corder report, when it argues that, “The flow of information from the executive to the legislature about its activities goes to the core of oversight and accountability.”[22]
In reality though, we have already seen that the flow of information (or lack thereof) is directly influenced by the way in which the ANC has constructed itself as a parallel authority to the state. Committees are often hammered by the use of filibusters and the system of committee reporting drastically needs to be overhauled. Question time has been reduced to a shadow of its former self as Ministers become less and less accountable and the nature and order of questions asked has also been altered in favour of the ANC. Finally, the President oversees the appointment of both Ministers and Directors General – the relationship between the two being described as “the crucial link in the chain of accountability” in the Corder report. In short, those mechanisms devised by parliament to hold the executive to account are ineffective and the flow of information is, without doubt, directly influenced by the ANC
So far as “a free press and public media, which is controlled neither by the state nor by political parties.” is concerned, the ANC, through its policy of cadre redeployment has ensured that the party is well represented on a number of different levels within the South African Broadcasting Corporation (SABC - which is also listed as a major public entity in the Public Finance Management Act) and the Independent Broadcasting Authority.(IBA)[23]
In the document “Accelerating Change: Assessing the Balance of Forces in 1999” and under the Heading “Media, the Public Debate and Hegemony” the ANC states, “The transformation of the SABC did take much longer than we thought and more needs to be done at middle management level. With regards to the print media, the ownership structures remain a problem.”[24]
On 1 August 2001, Saki Macozoma, initially deployed as the deputy MD of Transnet, was appointed the CEO of New Africa Investments Limited. (Nail) “he will be in charge of a medium-sized media company whose interests include ownership of SA’s biggest daily newspaper by circulation (Sowetan) and some of this countries premier radio stations.”[25]
Macozoma does not see his position as an ANC National Executive Committee member as a conflict of interest. "I think I have exercised my own mind sufficiently out there for people to know that I have a certain integrity that I keep." Ironically, Macozoma further notes, "But, at the end of the day, you are only as good in that direction as the people you employ."[26]
In the President’s 2001 budget debate speech, Thabo Mbeki argued that government has “established the policy and legislative base that enables us to effect the social transformation that our country needs,”[27] that “the central challenge we face as government is the task of implementation.” Essentially President Mbeki was arguing that government had established a plan and now the country (and government) required “unity in action”[28].
What the President was not clear on is the role that parliament is to play in this process. Implied, is that parliament’s role is now merely to monitor delivery, with an emphasis on “effectiveness” and “efficiency”, as opposed to the careful scrutiny of legislation, and oversight of the executive. This point is reiterated by the ANC speaker in Gauteng legislature, Firoz Cachalia, who argues that, “as members of the governing party we ought crucially to be interested in encouraging measures which enhance the efficiency and effectiveness of the executive.”[29]
Parliament is fast becoming a bystander. The executive, through cadre redeployment, controls the design and make-up of those structures that should define parliament as an independent institution. More importantly it can influence the flow of information between the executive and the legislature. This has undermined the role that parliament can play within government and if anything has served to weaken the legislature as an institution as opposed to ensuring a ‘strong’ parliament.
Conclusion
The fact that an increasing number of ANC MP’s are being deployed to positions, which exacerbate the conflict between their role as a member of parliament and their role as an ANC cadre, is a reflection of some of the broader contradictions that characterize the organisation. On an ideological level the ANC still views itself as a national liberation movement and in practical terms this has manifested through cadre redeployment, as the ANC interprets its responsibility to be the transformation of South Africa in its political, economic and social entirety.
Those constitutional values and principles identified in the previous section run in an opposing direction to the particular policies and practices that define the ANC and its internal structure.
The ANC’s cadre policy creates a dual authority: Ostensible authority resides in the Constitution and the state, real authority in the party structures of the ANC. The consequence is that the real “consideration of issues” is removed from parliament and public scrutiny, and instead placed in the darker reaches of the ANC.[30]
According to the ANC, members of parliament are not there to “represent the people” but to represent the party. The ANC has stated that, “it is not individuals as such who are in government but ANC members deployed to fulfil a function. The parameters within which they carry out their functions are defined by the ANC and they should account to it.”
Similarly, while MP’s are mandated to scrutinise and oversee executive action, and to hold Ministers to account, democratic centralism means that ANC members in the legislature are accountable to the party hierarchy. Since the executive is drawn from the party leadership this means that ANC MP’s are accountable to the executive.
4. THE LEGISLATURE
Given that the constitution requires parliament to provide mechanisms through which it becomes possible hold the President and members of the executive to account, the question becomes, why is it failing to do so?
Across a broad-spectrum, the particular structure and policies of the ANC have demonstrated a natural tendency to undermine the independence of parliament, but what are the consequences specifically?
The Corder report uses the notions of “oversight” and “accountability” as the two primary categories through which the executive can be held to account. It argues that there are several constitutional and theoretical values that underpin these two ideas. In turn, oversight and accountability are essential to defining and understanding those mechanisms through which the parliament can hold the executive to account, as set out in the constitution.
Each of these ideas provide the theoretical impetus behind parliamentary procedures such as question time, or structures such as the committee system. Two conditions can be seen as vital in regulating the relationship between the executive and the legislature. First: the ability of the legislature to hold the executive to account. And second: the ability of the legislature to resist the encroachments from other spheres of government.[31]
The ANC, with a significant majority in parliament, has ensured that its MP’s are accountable first and foremost to the party hierarchy. Accountability and oversight cannot function properly in a system where the majority party can manipulate those structures designed to hold it to account. These mechanisms best illustrate the extent to which parliament has become marginalised.
Question Time
The National Assembly is constitutionally obligated to provide mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it.[32]
Question time (along with the committee system) is the best practical example of accountability. It allows ordinary MP’s the opportunity to question the President, the Deputy President and cabinet Ministers. Question time has thus traditionally proven to be the preserve of opposition parties for the sole reason that those in power are not prone to self-criticism.
The Corder report states, “the flow of information from the executive to the legislature about its activities goes to the core of oversight and accountability. The duty to answer or explain is captured in the notion of “explanatory accountability”, which requires the giving of reasons and the explanation for action taken.”[33]
Question time itself has two distinct forms, namely questions to the President and Deputy President and the more general question session in which questions are referred to Ministers.
Parliamentary Question Time
In 1994 question time essentially revolved around three different mechanisms: interpellations, (15 minutes “mini-debates”) questions for oral response and questions for written reply. Of these three, interpellations probably allowed for the most lively interaction, as the MP initiating the debate had a number of chances to respond to the answers or issues raised by a given response.
Since 1994 a number of changes have ensured that the system is no longer an effective way through which the executive can be held to account.
Up to April 2000, questions were placed on the order paper in the National Assembly in the order in which they arrived. From April 2000 a number of changes to the existing rules were introduced by the ANC. Question time would now operate on a rotational system whereby parties were allocated questions dependent on the strength or size of the party.
It was argued that this would give smaller parties the chance to ask more questions. In practice it simply increased the number of ANC questions at the top of the question paper - in effect increasing the number of questions the ANC would be allowed to ask. Every third question now fell to the ANC, reducing the opportunities of the opposition to question the executive.
Apart from the fact that the ANC had effectively increased the number of questions it could ask, the argument that smaller parties would now get a chance to ask questions in practice holds little water. The full quota of questions for a particular session is never dealt with. In the first question time under the new rules only 7 of the 13 parties represented had a chance to ask questions of the government and this trend has continued. The 8 smaller parties only get to ask questions every 3 weeks at best.
The number of supplementary questions (follow up questions, which were far more spontaneous and, in turn, direct) that could be asked in response to a particular answer was also reduced under the new rules, further decreasing the opportunity to put a Minister on the spot, or to follow up on an important contradiction or unsatisfactory answer.
At the time ANC chief Whip Tony Yengeni argued that the changes would result in question time being more “topical” - the opposition is currently required to submit questions to the question office some 2 weeks before they are answered, making it very difficult to question departments or Ministers on current issues. The problem is compounded by the fact that the number of supplementary questions allowed has also been curtailed.
Perhaps the most worrying aspect to question time is the attitude of the Ministers. Question time is, by its very nature, a critical interaction between government and opposition. It is a platform from which government is required to explain its actions, as alluded to in the Corder report, and in this respect it is one of the key mechanisms in a democracy that can provide both transparency and accountability.
However, there is an unwillingness on the part of Ministers to explain their actions. The system is now structured in such a manner that should a question not be answered completely, there is no simply no system of redress through which a Minister can be instructed to answer the question again or do so in a more comprehensive manner. The result is that there is often no effort at all to answer a question and no way to hold a Minister accountable for the answer of the lack thereof.
Questions to the President
President’s question time has also undergone a number of changes. Up until January 2000 President Mbeki had yet to attend question time in person. The task of answering the questions posed to the President would fall to the Deputy President. This provided the presidency with various opportunities to avoid answering questions, either by arguing that answering a question would construe a breach of confidentiality on the part of the President[34] or that the President needed to answer a question in person.[35]
The pressure on President Mbeki to attend question time in person eventually paid off and he attended for the first time during the first parliamentary quarter of 2000. However, Mbeki only ever appeared three times in 2000, and while it was agreed he would attend Question time in person “once a quarter”, in reality this is highly unlikely, due to his personal schedule.[36]
The fact that the President is only ever required to attend question time once a quarter has a number of implications. If one considers that a maximum of 6 questions per session can be posed to the President, (Each of which is selected on a system of proportional representation, resulting in at least 2 of those questions going to the ANC) during an entire year in parliament, the President will only have to answer 12 questions from the opposition. Yet even these 12 questions need to go through several processes before they are placed on the order paper.
Under the old rules it was possible to hand any question to the president into the question office. (So long as it was not deemed “unparliamentary”) Under the new rules the speaker vets questions to the President. This allows for the possibility that the presiding officer can influence which questions are selected for the President and blunt any real challenge from the opposition.
Questions to the President also need to be handed in 16 days prior to the actual session. The result of this 16 day delay is that, should an urgent issue arise, there is little chance of the President having to respond immediately, instead it becomes possible for him to bide his time and only respond once the particular issue is no longer a public or political priority.
It is also interesting to note that questions to the Deputy President have also been halved. From September 2000 the Deputy President was only required to answer questions every second week as opposed to every week under the old rules. The Deputy President does appear in the NCOP, although only three times year. As one might suspect, the President himself no longer answers questions from Provincial representatives.
Essentially, question time has become an exercise in futility. For the various reasons outlined above, questions to the President and to other members of the executive can no longer be seen as one of the key mechanisms through which the National Assembly can hold the executive to account and there is no longer an “open” or “responsible” flow of information between these two arms of government.
The President does not want to attend parliament and does not want to answer questions. Presumably, if the opposition stops asking questions, his absence will be forgotten.
The Committees
Historically, parliamentary committees served only as “rubber stamps” used to help push through legislation without scrutiny or challenge from the legislature. 13 committees existed, reflecting what was seen as the 13 main functions of government. Their meetings where closed to the public and they functioned seemingly only to provide an aura of credibility to official legislation, as well as to adjust budgets between the national and provincial departments.
However, since 1994, the number of portfolio committees has increased dramatically. The powers vested in the committees, which, amongst other things, allowed them to hold the executive to account, were also significantly strengthened as they were restructured.
The powers invested in the committees by the rules of parliament include: the power to monitor, investigate, enquire into, and make recommendations relating to any aspect of the legislative programme, budget, rationalisation, restructuring, functioning, organisation, structure, personnel, policy formulation or any other matter it may consider relevant, of government departments or departments falling within the category of affairs consigned to the committee.[37]
Although the new committee system was superimposed on the existing infrastructure it marked a distinct break from the unaccountable and secretive nature that was associated with the system under apartheid. There was a renewed sense of optimism in the role that the committee system was playing in South African politics. They had much more life and independence, and while their relationship with the executive was still developing the cabinet and Ministers initially encouraged this new activism from parliament.
To date there exist approximately 57 committees, which can be further subdivided. 27 portfolio committees of the National Assembly exist (more or less shadowing the executive with more or less one committee per government department), 14 committees serve the National Council Of Provinces, 7 joint standing committees, 2 joint committees and a range of ad hoc committees.
Committees consist of 15 to 25 members and are composed of the various parties within parliament. The party Chief Whip, in accordance with their proportional representation, appoints members. To this extent, minority parties are entitled to have at least one representative per committee.
In short, there currently exists a comprehensive legislative and constitutional framework within which the committee system can be seen to function. However, while the term ‘committee system’ does suggest a unified single entity, in practice the interpretation and implementation of the framework differs from committee to committee and between the various provinces. This can be seen as the first substantial problem with the current committee system.
Since 1995 the committee system has slowly had its powers undermined. Initially this centred on the speed at which legislation, such as the 1995 Education Policy Bill, was pushed through parliament, allowing little time for committees to properly scrutinise Bills and policy documents placed before them. To a large degree the pace at which legislation was being stampeded through parliament was attributed to the pressure the new government was under to introduce reforms. In reality though it signalled the start of a gradual breakdown in the lines of accountability.
The Sarafina scandal in 1996 saw the then Minister of Health, Dr Nkosazana Zuma, protected from being implicated when the President’s office stepped in to delay the hearing ordered by the chair of the Portfolio Committee on Health, Dr Manto Tshabalala. The failure of the ANC MP’s to ask any serious, probing questions about the sponsorship of Sarafina II at the hearing lead to further suggestions that the committee members had been “silenced” and prompted the Mail & Guardian to note:
“The balance of power between the executive and the legislature is becoming a central and highly contentious issue in what some politicians see as improper interference in the parliamentary process by the cabinet and the presidency.”[38]
The oversight role that the committees play in the parliamentary process has continued to diminish and more recently, along with changes in the ANC’s internal structure, the committees have failed to hold the executive, cabinet or Ministers to account on several occasions, suggesting that their role is once again shifting toward simply approving executive action and policy without careful consideration.
There are numerous examples illustrating this point. They can be seen to include the Special Ad Hoc Committee effectively refusing a call by the public prosecutor to sanction Minister Penuell Maduna for undermining the Constitution when he implied that the Auditor General had covered up a R170 million theft from the Strategic Fuel Fund (SFF) and parliament’s Safety and Security Committee effectively exonerated the Safety and Security Minister, Steve Tshwete, when he used policemen to investigate a party political dispute.[39]
Of particular significance, is the way in which the Scopa, arguably parliaments most important watchdog as it monitors how taxpayers’ money is spent, has been interfered with during the R43 billion arms deal scandal. Already the President has intervened directly in parliamentary procedure and removed judge Willem Heath from the investigation. The presiding chair of the ANC caucus within the committee, Andrew Feinstein has been removed and chairman Gavin Woods has argued that the committee remains “sidelined” as a result of the speaker and President’s intervention.
Scopa also best illustrates the manner in which the ANC has been able to “strongarm” committees. Apart from the fact that the party has managed to remove Andrew Feinstein, with the advent of the arms deal investigation looming it also added four ANC loyalists to the committee. Announcing the decision Tony Yengeni said, “We are strengthening the study group because it has important matters to consider.”
More recently the damage done to Scopa by the ANC has resulted in it refusing to debate the employment status of Home Affairs Director-General Billy Masetlha. Masetlha’s contract expired in June 2001 but he has continued to act as Director General in spite of this. Business Day argued that:
“President Thabo Mbeki is understood to have promised Buthelezi a resolution, but has done nothing. Is this because Masetlha is an ANC man hand picked by Mbeki for the Home Affairs job…?”[40]
Currently, all three of Scopa’s subcommittees have an ANC chairperson. They will have a key role to play in deciding which aspects of the arms deal the committee deals with. On top of this, ANC members of the committee have proposed a “code of conduct” which if passed could effectively muzzle committee members from discussing committee affairs with the media. The ANC has stated that, “strong caucuses produce strong parliament/legislature(s) and consequently contribute to effective governance.”[41]
Although the committees have the ability to hold the executive to account there has been a marked reluctance to exercise these powers, especially if that person is a Minister. The indifference of the committees when it comes to calling Ministers to account for their departments has been matched by indifference on the part of the Ministers to the committees. When allegations of corruption were made about the arms procurement programme, the government sent a Armscor official to brief the portfolio committee on defence at the same time as four Ministers briefed the media.
There are a number of practical problems with the committee system that also act as constraints against it playing an effective role in the parliamentary process. These can be seen to include: (1) A lack of resources - the research support available to committees is limited. Although the government has increased the budget for the committees it is remains understaffed. (2) Inexperience - this is particularly relevant to smaller parties who have to spread there members over all the committees, so that in some cases an MP is forced to sit on 15 or so committees. (3) Time pressure - meetings often overlap, over commitment and the amount of legislation associated with a committee might swamp an MP and opposition: smaller parties, along with bigger parties such as the IFP and FF are unaccustomed to oppositional politics and lack experience.
Of particular concern, however, are the political constraints that are undermining the committee system. The Institute for Democracy in South Africa (IDASA) argues that:
“The electoral system of proportional representation, the size of the ANC majority and the strength of the ruling party’s caucus hinders the effectiveness of committees. The ANC commands significant loyalty from its members, partly as a result of the years in resistance, and this is shored up by the electoral system. An MP elected off a party list as opposed to directly is more likely to toe the party line. It is further aided by the resolution that MP’s may not cross the floor, which is also the consequence of the electoral system. These political constraints can lead to a toothless parliament with little accountability by the executive, and a blurring of the separation of powers.”[42]
In August 2001 the ANC NEC announced the creation of a special committee, made up of 22 MP’s and headed by the country’s most senior MP, deputy president Jacob Zuma (The committee is as of yet without a formal title). The ANC argues that, essentially, the committee would be responsible for the vital co-ordination between ANC members in Parliament and its national headquarters in Johannesburg.
There are a number of other interpretations that can be read into the creation of this particular committee. First, it comes after a difficult and prolonged period for the ANC that has been marked by accusations of corruption and maladministration by senior government ministers, some of which have been alluded to above. Second and following on from the first point, it can be interpreted as a vote of no confidence in ANC Chief Whip Tony Yengeni, the MP responsible for party discipline. Third, it significantly increases the strength of ANC MP’s in relation to Ministers rather than weaken them. Fourth, the committee reinforces the ANC’s policy of democratic centralism as senior ANC members, such as Tony Yengeni, apart from being initially accountable to the party hierarchy outside of government structures now also answer to party members within parliament, further blurring the line between party and state and placing more power in the hands of the executive.
The Constitution
Throughout this paper it has been implied that the constitution remains the ultimate vestige for those structures and guidelines that define the South African state and the power relationships within it. It is not a mechanism designed by parliament to hold the executive to account, rather it encapsulates those principles which underlie parliamentary oversight and accountability and the separation of powers.
The ANC is currently trying to introduce the first constitutional changes since 1994. These include a proposal to increase Finance Minister Trevor Manuel’s power over spending policy, as well a proposed amendment increasing national control over local government.
The increase in the Finance Minister’s control can be seen to come at parliaments expense, as they reduce parliaments influence as the majority of financial and economic wisdom will reside in the Finance Minister and the treasury. It remains to be seen whether parliament will pass the proposed changes later this year.
Business Day argues that the proposal by the Justice Department to increase national government’s control over local authorities ignores the deliberate balance of power between national and provincial government as decided in the constitutional negotiations in 1994.
“The proposed amendment, increases national jurisdiction and thus interferes with the balance of power enjoyed by provinces, the weight of which was important when the Constitutional Court certified the constitution as being compatible with the Constitutional principles. To this extent these proposals destroy the balance that was struck at the negotiations but five short years ago.” [43]
If the amendment is passed national government will be empowered to exercise concurrent supervision over all municipalities. The ANC suggests that the changes will allow the government to step in “where provinces have no functional competence” but this does not preclude national government (or the executive) from influencing decisions made at provincial level, regardless of how well that particular province has functioned.
Amendments to the constitution in themselves are not without merit. Indeed the constitution requires that it be reviewed annually. Of more direct concern is that several changes have all been included in a single bill. The ANC has argued that this is essentially to save time, but it appears to be an attempt to have multiple changes put through parliament while at same time avoiding individual debate and scrutiny of each amendment.
“Even if a case can be made for each of the four categories of amendments – and that is by no means established beyond doubt – it does not follow that an omnibus bill introducing them all at once is justified. The argument still stands that the Constitution, as the foundation upon which the new order rests, ought not to be targeted for multiple change.”[44]
Further, the fact that government has suddenly deemed it necessary to introduce these changes serves to highlight a number of other omissions, and raise the question as to why these changes are being introduced in the first place. “It (government) is obliged under section 77 (2) to introduce a law to give parliament the option of amending money bills, instead of either accepting or rejecting them.”[45] If one considers that some five years have now passed since the constitution came into operation, this particular amendment – a constitutional requirement – has yet to be placed in the statute book with the result that not even the parliamentary finance committee, who are mandated specifically to scrutinise all financial legislation, can amend money bills.[46]
“While it (the ANC government) finds the time and energy for the amendments it favours, it cannot or will not find the opportunity or drive to fulfill its constitutionally prescribed duty. That in turn invites the deduction that its respect for the sovereignty of the constitution is a matter of show rather than substance.”[47]
In 1994 Nelson Mandela professed himself relieved that the ANC had not won a two-thirds majority. An editorial in Focus notes “In the run up to the 1994 election it was easy to find ANC supporters who enthusiastically announced their hope that the ANC would win all nine provinces. Asked if they did not want a strong opposition they were often stumped for a reply. Most ANC supporters thought you could not have too much of a good thing.” [48]
A strong opposition not only remains vital to ensuring that government is held accountable for their actions but in South Africa a two-thirds majority would ensure that even the constitution was not beyond the ANC’s direct influence.
Conclusion
There are basically three problems, the size of the ANC majority, the proportional representational list system and the ANC policy of centralisation. Individually each of these have impacted on parliament in a particular manner, combined, however, they have seen those mechanisms designed to hold the executive to account and promote the flow of information, steadily eroded. To this extent, question time and the committee system no longer function effectively and the executive (and the ANC) has ensconced itself away from the scrutiny and oversight of the legislature.
5. THE EXECUTIVE
Overseeing both the ANC and the legislature is the executive. The executive includes cabinet and the President’s office. Ultimately, it is the President’s office that presides over both cabinet and parliament. (And, as the majority of the cabinet sits on the ANC NEC and NWC, the executive also presides over the ANC) Theoretically, the executive remains accountable only to parliament.
Since 1994 the President’s office has undergone several changes. There have been a number of substantive adjustments as, under the leadership of President Mbeki, the office has grown in “physical” size that has in turn lead to a substantial growth in the amount of power vested in the President.
The constitution provides several clear guidelines designed to limit the amount and type of power invested in the President, however, where the President does not have constitutionally ordained powers, these are compensated for by his power as ANC President. These two distinct sources of power appear to be in conflict with one another.
The Imperial Presidency
The decision to consolidate the President’s office with that of the Deputy President has meant that, by 30th September 1999, the number of staff in the office of the President had swollen to 334 – 38 more than the combined total of the former offices of the President and the Deputy President. On top of that, by early November 1999, it was announced that Mbeki’s office would cost R70.6 million, R20.7 million more than the combined cost under the Mandela presidency.
As the Mail & Guardian noted “the reconstructed presidency has become a powerful co-ordinating structure for all government policy and action…Nothing of significance in government is planned without its backing. With its own support and investigative structures, it is not dependent on other government departments, giving it a great deal of independence and control.”[49]
The restructuring of the presidency, under Mbeki, has also been supplemented by a number of other appointments. On a personal level Mbeki has carefully ensured that he has surrounded himself with a network of his most loyal and trustworthy associates. The most significant of these is the appointment of Essop Pahad, an old friend with whom he studied at Sussex, to the position of Minister in the President’s office. This particular position is one of Mbeki’s own initiatives and did not exist under President Mandela.
“Pahad is Thabo Mbeki's main man in parliament… His reputation as someone who "fixes" things for the President comes from Pahad's deep loyalty to Mbeki and the resulting knowledge within the ANC caucus that he has both the ear and the trust of South Africa's most powerful man.”[50]
On face value, the Minister in the President’s Office has assumed the role akin to a personal spokesman, speaking on the President’s behalf and administering the presidency but it is behind the scenes that Pahad’s role in the Presidency is more difficult to define. “Mbeki is surrounded not so much by advisors as by informers. This group , headed by his old friend Essop Pahad, is seen by many ANC loyalists not as a source of advise for Mbeki but as a group dedicated to defending and protecting him. It has created what, in a previous era, would have been called a lager around Mbeki.”[51]
Most recently Mbeki has overseen the redeployment of Linda Mti – the head of the National Intelligence Coordinating Committee (Nicoc) – as the national commissioner of the department of correctional services. This marks the second occasion on which an ex-ANC agent has been redeployed to a ministry that falls under another party, in this case the IFP. At the beginning of 2000, Billy Masetlha, the former Director General of the South African Secret Services was deployed to the department of home affairs, with is headed by Minister Mangosuthu Buthelezi
While it is significant that Mbeki’s political allies also head up the Reserve Bank, the National Directorate of Public Prosecutions and the Army, more important perhaps is the fact that the President has ensured that the Government Communication and Information Services, (GCIS) the National Intelligence Agency (NIA) and the Police all fall under the ANC hierarchy, as they remain headed up by ANC (and Mbeki) loyalists
Along with those changes to the office of the President already mentioned came a number of more bureaucratic adjustments. Five unit Policy Co-ordinating and Advisory Services (PCAS), where established. Designed to shadow the ministerial cluster committees they “exercise a crucial gate-keeping function, since ministries are now required to refer all new policy documents and draft laws to the presidency for scrutiny by PCAS officials.” [52]
This gives rise to a number of problems. It has been argued that Ministers are reduced to the role of “managers” fearful of challenging the status quo as dissent might be met with a cabinet reshuffle. The problem is compounded by the fact that the President has the power to “create posts which cross-cut ministries, with the incumbents reporting directly to him rather than Ministers or Ministerial committees.”[53] – an example being the post of public prosecutor now occupied by Bulelani Ngcuka.
Speaking in 1995 Mbeki stated, “…we have supported the need for a number of guiding principles and independent institutions. These principles and institutions are additional mechanisms designed to guarantee a fair application of democracy with no danger of party-political abuse… We have agreed on the need for an independent and impartial Public Service Commission, a Human Rights Commission, a Reserve Bank, an Auditor-General and a Public Protector.”[54]
In consultation with the relevant cabinet Minister, the President appoints Directors-General. On 2 December 1998 cabinet adopted the Public Services Amendments Bill. The Bill provides for Heads of Departments to be appointed by the president and respective Premiers “in order to allow for re-deployment and utilisation of these public servants on a government wide basis.”[55] The President also appoints premiers in each ANC controlled provinces.
The Corder report argues that, “ministerial responsibility is the cornerstone of accountability. Since it is based on departmental hierarchy and lines of responsibility culminate in the Ministers.”[56] Further, it notes, “The relationship between the Ministers and their D-Gs (Directors General) is the crucial link in the chain of accountability… The relationship Ministers and D-Gs needs to be formalised and responsibility allocated.”[57]
As the Director-General is often seen as one of the central figures responsible for holding a particular department or Minister to account, the question as to whom that particular Director-General is answerable to becomes extremely relevant. While the Minister in charge may vary with each appointment, the common thread linking all appointed Directors-General remains the President’s Office.
Mbeki has also made sure that ANC loyalists head up a number of other organisations within civil and political life, ensuring that the executive’s influence is far more wide reaching.
Schedule 2 of the Public Finance Management Act (199) lists 19 of what it terms “major public entities” or large parastatals, which should possess full managerial autonomy. In theory government should be able to intervene through its power as a shareholder, however, in practice government’s intervention has been far more direct. Currently President Mbeki has overseen the deployment of party members to senior positions in the majority of these public entities. Some of the more significant redeployments include:
Max Sisulu, member of the ANC’s NWC and NEC, as CEO of Denel; Khaya Ngqula, to the Industrial Development Corporation; Lulu Gwagwa, to the Independent Development Trust, Totsie Memela and Helena Dolny, to the Land and Agricultural Bank of South Africa; Saki Macozoma, initially as CEO of Transnet and then to New Africa Media Limited and Thaninga Shope, Snuki Zikalala, Ivy Matsepe-Casaburri and Zwelakhe Sisulu, all to various positions within the SABC between 1993 and 2000.
As President of the ANC, Mbeki has thus insured that are the majority of significant parastatals in the country are also answerable to the presidency, reducing their managerial autonomy and ability to act independently of party policy.[58]
Conclusion
In April 1991, the ANC tabled a document titled “Constitutional Principles for a New South Africa” In the document, designed to outline and identify those democratic and constitutional values which should guide and define the new South Africa, the ANC argues, “A new South Africa shall not be an over-centralised, impersonal and over bureaucratised country”[59]
In reality the office of the President has become highly bureaucratised, and it now forms the central platform from which the President looks down on and implements party and political policy. “Thabo Mbeki has not made any public reference to the reorganisation of the presidency. Deliberate or not this silence lends weight to the perception that the restructuring process is centralising enormous power in the President’s office. The fear is that… such centralisation could presage an imperial presidency – powerful, imposing and impenetrable.”[60] A great deal of power has been placed in a restructured and all powerful presidency, which has removed itself from public scrutiny or comment and has extended its bureaucratic reach substantially.
6. CONCLUSION
Writing in 1999, just before the inevitable transition in leadership from Nelson Mandela to his successor Thabo Mbeki, Stanley Uys made the following observations:
“Already there are clear indications that, unlike the rather laid-back Mandela Presidency, Mbeki’s will be more centralised, decisive, even authoritarian.”
Further, Uys questioned, “So to what purpose is Mbeki centralising power? Whatever his individual psychological proclivities, whatever his high-minded intentions, whatever the provisions of the Constitution the exigencies of “transformation”… are likely to make South Africa less, not more, democratic… in the coming years.
Accepting for the moment that Mbeki is creating a one-party-dominant state: is that dominance to be permanent, or is it a step towards opening the power base to the rest of the country. In whom should South Africans place their trust: Mbeki the autocrat…or Mbeki the democrat?”[61]
There are a number of broad trends and patterns that underlie and complement this process of centralism. Within themselves they represent concrete examples of the way in which parliament has been systematically marginalised, yet it is only when we look at them as elements of a more general process that it becomes possible to suggest what there implications are.
Theorists on African politics have identified four key features that tend to characterise the accumulation of power under African despotic regimes.[62] Congo-Kinshasa is often cited as a “model” for the corruption of power within the African continent.
The first of these components concerns the “Africanization of the state”. This “first and most immediately visible form of state concentration of power” revolves around “the replacement of departing colonial administrators with African politicians and civil servants.”[63]
In the case of Congo-Kinshasa this process took umber of more extreme forms. All citizens where forced to drop their Christian forenames in favour of African names and the vast majority of small and medium “foreign”-owned commercial businesses were handed over to the state authorities for redistribution
The replacement of departing administrators with African politicians and civil servants was almost “instantaneous”. “Mobutu (Sese Seko) announced a broad policy of “authenticity” that sought to replace the remaining cultural vestiges of Belgian colonialism with more “authentic” forms of African consciousness.”
The (ANC) government remains committed to a strategy to transform the civil service at a bureaucratic level. On a broader level this has been formalised in the Employment Equity Act, but this has been difficult to enforce and monitor and in an attempt to speed up transformation the ANC has resorted to more direct methods of transformation.
The Eastern Province Herald reported on 7 August 2001 that the ANC has proposed to retrench some 150 senior white managers within the Port Elizabeth metro municipality as part of its “golden handshake” transformation plan. The paper reported that:
“In a shock move yesterday, the ANC proposed the wholesale retrenchment of 144 senior white managers in the metro municipality as phase on of a R742-million “golden handshake” transformation plan. Despite vehement opposition from the DA, this “sunset model” was adopted by the ANC-controlled administration and human resources committee yesterday and will now be put to the vote at a full council meeting at the end of the month. R165-million will be spent this year, followed by R577-million over 2002-04, during which a further 375 top- and middle-management white employees will be entrenched—bringing the total to more than 500.”[64]
The document, titled, “Proposed Strategy on Transformation at Administrative (Bureaucratic) Level” by the ANC, recommends that the Golden Sunset option should be adopted by Council as “a transformation model to change management’s corporate culture”. Further the document notes, “the fact that employees prefer to leave is a clear indication that they are not prepared to serve an ANC-led government. Such managers will disrupt and negatively affect the transformation agenda” In concluding it states that, “Council should note that many years of service do not necessarily equate more experience (sic). Council has an obligation to transform this institution and deliver as per the ANC election manifesto.”
The “Bureaucratic Expansion and the Growth of Parastatals” can be seen as the second component in this process. “The process of bureaucratic expansion was further fuelled by the nationalization of foreign corporations, a process whereby the state names it’s own agents to the boards of directors of companies formerly owned and governed privately.” [65]
President Mbeki has in most instances, overseen the redeployment of ANC loyalists to various levels of state and civil society. The important distinction to make is that as the ANC runs as a parallel authority to the state, ultimately these cadres are answerable to the party hierarchy.
The third component, and of most importance to this paper, can be termed the “Dismantling of Institutional Checks-and-Balances” “Many African leaders also concentrated state power by undertaking presidential actions designed to limit, and in some cases completely destroy, the ability of other state actors to challenge the decision-making supremacy of the presidential mansion…In short, African leaders sought to create highly centralized states in which the executive mansion reigned supreme”[66]
The dismantling of institutional checks-and-balances “also included the marginalization, and sometimes even the disbanding, of independent parliaments and judiciaries.” In Zaire, Mobutu removed all constitutionally mandated powers attributed to the national legislature and while the legislature continued to meet hold debates, effectively it had been rendered powerless. Ultimately the national legislature was dissolved and although later replaced in 1970, the new legislative body “constituted at best a “rubber stamp” institution that merely endorsed Mobutu’s legislative initiatives”
Complementing this, the executive then seeks to co-opt or silence opposition and civil society. The strategy is to woo potential competitors and opponents with profitable positions in the government while simultaneously dealing harshly with those perceived as threats to the presidency.
While the possibility of redeployment provides a valuable and powerful means through which the ANC can directly influence the structure of civil society there are a number of other tools at their disposal. Recently, Business Day noted with regards to the proposed constitutional changes that, “Another proposed amendment will allow President Thabo Mbeki to appoint two non-MPs as deputy ministers. This may be a bid to accommodate deputy education minister and Azanian People’s Organisation (Azapo) president Mosibudi Mangena, who wants to give his parliamentary seat to another party member. The ANC needs the support of Azapo, or another party, to obtain a two-thirds majority for the amendments.”[67]
Finally, “The Creation of Personal rule Networks” forms the final component. “The system is based upon a series of concentric circles of patron-client relationships, in which the leader at the centre of the system personally selects senior government appointees, who in turn select their appointees, and so on.”[68]
In the 1999 ANC Mid Term Report and Review, presented by Kgalema Motlanthe and under the heading “Organisational Democracy and Discipline” it is argued that “Decisions of higher structures bind lower structures, and leaders and cadres have a responsibility to abide by, defend and implement these decisions.”
We have already seen the extent to which the President has constructed a network of his closest associates around him, but cadre redeployment does not remain the only way through which the President and members of the ANC hierarchy can create a system of patronage.
Across the border from South Africa, Zimbabwean President Robert Mugabe has not only loaded parliament, civil society and the judiciary with ZANU and Mugabe loyalists but he has also insured that a vast number of these appointments go to family members or relatives. “Over two decades in office President Robert Mugabe has diverted plum political jobs and state-funded contracts to a network of extended families belonging to his Gushongo clan.” [69]
Similarly, although far more wide spread than just the President, the ANC has a substantial and detailed history of nepotism. In 1997 the NP took what it saw as 20 bona fide cases of corruption and nepotism to the public prosecutor. While all 20 cases were dismissed they go some way toward demonstrating the extent to which this issue has marked political and civil power within the country.[70]
The system ensures that only a tiny minority of the ANC elite maintains senior positions within government. Thabo Mbeki has stated that “The notion that somebody’s brother, sister, uncle or cousin gets prohibited from occupying public position because a relative is in public position is, I think, wrong. I think it is entirely wrong, and I have heard this argument raised that so-and-so is and ambassador, and is so-and-so’s wife. In no instance has anybody said that that person was incompetent and should not be appointed to that position. Nobody.”[71]
The appointment of family and friends to senior positions serves to reinforce the current policy of democratic centralism and cadre redeployment adopted by the ANC. Not only does it help to ensure that a small elite, answerable to the President and the ANC NEC, maintain control at numerous different levels but it ensures that same elite is comprised of those members of the ANC most loyal to the people who appointed them in the first place.
In each of these four areas, we have seen that there is evidence of an erosion of those structures and principles designed to hold the executive and the President to account, each of which points to a number of far more serious consequences.
The direct result is that parliament has become marginalised. It is increasingly difficult to maintain oversight of cabinet and President Mbeki, or to hold them accountable for their actions. The warning signs are all there, as various independent institutions are systematically being undermined there is an urgent need to address the role that parliament currently plays in South African politics and ask the question whether it can still truly be seen to encapsulate those principles described in the constitution.
Footnotes:
[1] See J. Madison; Federalist No 48; These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other; 1 February 1788.
[2] Ibid.
[3] During the National Party (NP) administration, between 1948 and 1994 and under the system of apartheid, a seemingly indelible mark was left on the relationship between these two arms of government At the height of apartheid decisions were made almost entirely by cabinet, often in secret, and any semblance of executive accountability had been completely removed as cabinet simply endorsed the decisions of the State Security Council. Parliament’s role was heavily circumscribed. Parliamentary committees met in secret to consider legislation it passed un-amended. Substantial decisions were discussed and passed without reference to parliament or the legislature at all. The result, or the desired effect, was to undermine the separation of powers, and simultaneously blur the line between party and state. In a constitutional democracy, ultimately, the state is embodied in the constitution yet, as the party ran as an equal, if not dominant, authority to the state even the constitution was not beyond the NP’s influence.
[4] The most significant of these changes are those proposed by the Justice Department, which of amended would increase national jurisdiction by allowing national government to intervene in municipalities, upsetting the balance of power enjoyed by provinces and strengthening the position of the national government which can already dictate to provincial and local authorities.
[5] Quoted in Business Day; 4 September 2001
[6] Constitution of the Republic of South Africa. Act Number 200, (1993) Government Gazette No 15466; 28 January 1994.
[7] H. Corder, et al, Report on Parliamentary Oversight and Accountability. July 1999.
[8] The Accountability Standards Act will serve the following purpose:
(a) Partially to fulfill the NA’s constitutional obligations for establishing accountability mechanisms.
(b) To set the broad framework and minimum requirements for accountability; and
(c) To provide and authoritative and mandatory framework within which committee members can perform their oversight task.
[9] Business Day; 4 September 2001. Interestingly, it was the self same ANC MP, John Jeffery, who provided the majority of impetus behind the changes introduced to parliamentary and presidential time.
[10] Thabo Mbeki; Speech at the ANC National Constitutional Conference; World Trade Centre; Johannesburg; March 31 – April 2 1995
[11] Thabo Mbeki, Speech at the Annual National Conference of the Black Management Forum; Kempton Park; 20 November 1999.
[12] See Marina Ottaway; Journal of Modern African Studies; 29; 1; (1991) pg 6
[13] Ibid pg 66
[14] F. Cachalia; “Good Governance Needs an Effective Parliament” Umrabulo No 11; 2nd Quarter 2001
[15] In the first edition of Umrabulo (fourth quarter 1996) Joel Netshitenzhe’s document on the Democratic Revolution, titled “The National Democratic Revolution: is it still on track?” is published. The document identifies six centres of power in society including the media, parliament and legislatures, the economy and the state machinery. It suggests “strategic deployment” as one means by which the ANC can take control of these centres of power.
[16] H. Corder, et al, Report on Parliamentary Oversight and Accountability. July 1999; pg 8/9
[17] see The Star; 16 May 2001
[18] The Star (15 May 2001) notes that “In an open letter to Ginwala on Sunday, Holomisa said the Speaker’s public pronouncements on the arms-deal probe ‘both inside and outside Parliament leave much to be desired and have cast more shadow on the credibility of the investigation. ‘It can be inferred that you and the executive are monitoring and directing the investigation” by the auditor-general, public protector and National Directorate of Public Prosecutions, while Parliament’s standing committee on public accounts (Scopa) was being ‘systematically sidelined.’”
[19] Cape Times; 21 May 2001
[20] see Business Day, 30 May 2001
[21] Ready to Govern: ANC Policy Guidelines for a Democratic South Africa. Adopted at the National Conference; 28-31 May 1992
[22] H. Corder, et al, Report on Parliamentary Oversight and Accountability. July 1999; Pg 14
[23] According to the Mail & Guardian (12 November 1999), “the SABC is, in effect being run by Enoch Sithole, chief executive of news, Phil Molefe, head of TV news, Snuki Zikalala, deputy-editor-in-chief and Thaninga Shope” Since that article was published Sitole has been axed, Molefe redeployed to the SABC’s 24 hour Africa channel and Zikalala promoted to executive news editor.
[24] “Accelerating Change: Assessing the balance of forces in 1999” Umrabulo No 7; 3rd Quarter 1999.
[25] Financial Mail; 27 July 2001; Pg 50
[26] Mail & Guardian; 22 July 2001.
[27] T. Mbeki. Speech by President Mbeki on the Occasion of the Consideration of the Budget of the Presidency. 21 June 2001.
[28] Own quotation marks.
[29] Firoz Cachalia, “Good Governance Needs an Effective Parliament” “Umrabulo No 11; 2nd Quarter 2001.
[30] Neither the ANC’s NEC nor the NWC publish the minutes of their deliberations or their decisions and policy directives.
[31] James Madison (Federalist No 51; 8 February 1788) notes: “But the great security against the a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
[32] Constitution of the Republic of South Africa. Chapter 4, Section 55 (1 and 2) Act Number 200, (1993) Government Gazette No 15466; 28 January 1994.
[33] H. Corder, et al, Report on Parliamentary Oversight and Accountability. July 1999; pg 14
[34] On 11 November 1999 the Minister in the office of the President declined to answer three of the four questions, which the DP directed to the President. The reply in each case stated “The President has been advised not to answer questions relating (sic) meetings with and correspondence from private individuals due to concerns regarding the confidentiality of the correspondent.” Each answer shared the sane typo suggesting that the same answer had been cut and pasted onto separate questions.
[35] see Hansard for debate on 27th October 1999, in the absence of the President, the Minister of Justice Penuell Maduna answered two questions concerning the Heath Special Investigative Unit on his behalf. Or rather he read out the answers prepared by the President’s Office and then refused to answer any follow up questions.
[36] Currently President Mbeki has answered questions in person on two occasions this year, 14 March 2001 and 30 May 2001. He is again scheduled to appear on 24 October 2001. This will be his last appearance in 2001, meaning that he will not answer questions in the third quarter and, in turn, will only attend Presidents question time three times in 2001.
[37] See H. Corder et al, Report on Parliamentary Oversight and Accountability; July 1999, Pg 40 - 41
[38] Mail & Guardian; 1 March 1996.
[39] At the time The Argus ( 25 May 2001) noted, “The African National Congress has consistently shown it has difficultly in differentiating between party and state. The latest example, which Safety and Security Minister Steve Tshwete failed to disprove this week in spite of a direct question on the issue, is the apparent use of the state’s intelligence services to investigate an internal ANC leadership squabble.”
[40] Business Day; 23 August 2001.
[41] F. Cachalia; “Good Governance Needs an Effective Parliament” Umrabulo No 11; 2nd Quarter 2001
[42] IDASA: Budget Information Service; Committees in South Africa: Short paper on the Committee system in South Africa, with a focus on their role in the budget.
[43] Business Day; 25 July 2001
[44] Focus; 23 September 2001.
[45] Ibid
[46] see Ibid
[47] Ibid
[48] Focus; 11 July 1998
[49] Mail & Guardian; 12 November 1999.
[50] The Sunday Times; 16 April 2000
[51] Business Day; 16 August 2000
[52] Political Information and Monitoring Service; “An Imperial Presidency” Siyaya - Issue 6; December 1999
[53] Ibid
[54] Thabo Mbeki Speech to the ANC National Constitutional Conference; World Trade Centre; Johannesburg. March 31 April 2 1995
[55] Cabinet Press Statement; 2 December 1998
[56] H. Corder, et al, Report on Parliamentary Oversight and Accountability. July 1999; pg 15
[57] Op cit, pg 43
[58] On top of this the Act fails to address the fact there exist up to 648 other public entities that ought to be accountable to Parliament. The fact that they are not yet included in the Public finance Management Act means that they are not required to follow those special reporting procedures that apply to those organisations listed and further reducing Parliament’s ability to hold them to account.
[59] Constitutional Principles for a New South Africa; April 1991
[60] Op cit
[61] Quoted in the Mail & Guardian, 30 April, 1999, taken from the essay by Stanley Uys titled The ANC and the Structure of Black Politics: The Buck stops with Mbeki; from the collection After Mandela: The 1999 South African Elections; The Southern Africa Study Group of the Royal Institute of International Affairs.
[62] Schraeder P. African Politics and Society: A Mosaic in Transformation; Bedford/ St Martin 2000.
[63] Ibid pg 219
[64] Eastern Province Herald; 7 August 2001
[65] Op cit pg 221
[66] Op cit pg 221 - 222
[67] Business Day; 19 July 2001.
[68] Op cit pg 227
[69] Focus 23 September 2001. Significantly these appointments include his favourite sister Sabina Mugabe and her children, various family relatives related to his mother – Bona – including the Ushewokunze family and the Chikerema family. Favours were also extended to the Mushayakarara family (whom Mugabe regards as his nephews and nieces) and the Chiyangwa family which also belongs to Mugabe’s Gushungo clan.
[70] See Public Prosecutor Report Number 11 (Special Report); Report on the Investigation of Allegations of Nepotism in Government; 15 April 1999.
[71] Speech to the National Assembly 23 March 1999
