New report seeks to answer question of where Parliament was during State Capture

“Embossed on the stairs leading to the National Assembly and National Council of Provinces are the words OVERSIGHT and ACCOUNTABILITY,” a new report by the Parliamentary Monitoring Group (PMG) reminds us.

That Parliament failed in these duties during the era of State Capture under the administration of former president Jacob Zuma is self-evident. Why this was the case is perhaps less so: while the fact that the ANC commands a large majority in Parliament is clearly relevant, it is also insufficient in terms of a full explanation.

“Where was Parliament?: A PMG review of parliamentary oversight in light of State Capture and the Zondo Report”, by Monique Doyle, Jennifer Rault-Smith and Rashaad Alli, sets out to explore this vital question and others.

As the PMG points out, Parliament as an institution is “well empowered to carry out its oversight responsibilities” in terms of the legislative framework around it, the powers afforded it in law, and its internal rules.

So what went wrong?

The first place to look is the committee system – about which PMG is in agreement with Zondo, that “parliamentary committees are the primary platform for oversight”. Committees are made up of MPs from all the political parties who make it to Parliament, and they have significant powers. They can summon politicians and officials to appear before them, they can conduct oversight visits to relevant places, and they can even hold public hearings about particular matters.

Read more in Daily Maverick: "Parliament needs to evolve after its failures during the years of crippling State Capture in SA"

But the functioning of individual committees is also highly dependent on the chairs of these committees. This is the case, the PMG report notes, at least partly because the mechanisms for “how a committee should discharge its duty to hold the executive accountable” are not explicitly laid out. As a result, a lot comes down to the “expertise, experience, skill, and political will” of the committee chairs.

In an ideal world, these chairs would be the crème de la crème of MPs. In the real world, they currently include discredited former Cabinet ministers Faith Muthambi and Mosebenzi Zwane.

Then there’s the fact that the committees produce reports reflecting their oversight. These reports are, in PMG’s words, “critical, as they explicitly capture the committee’s recommendations on how/ what the department or state entity must improve, fix, address or provide a follow-up response to, update or provide progress on, usually within a stipulated time frame”.

The issue arises when nobody reads or acts on these reports – 1,000 of which are tabled in the average year.

“As prodigious as the work going into these reports may be, they are only useful if the recommendations captured are followed up and acted on,” PMG writes.

There are parliamentary committees to oversee the work of each government department, but none to oversee the presidency.

What this means, says PMG, is that the sole tools for Parliament to hold the president and the deputy president accountable are oral and written questions. The problem is that “these tools have limitations in demanding accountability”: only a set number of written questions may be posed per year, and oral questions are only answered at certain occasions.

When questions are posed in Parliament, members of the executive frequently respond that they cannot answer them because the matters at hand are under investigation, and to do so would flout the rule of sub judice.

PMG’s report reiterates something that legal experts have been trying to highlight for years: “sub judice is no excuse not fully to account to Parliament”.

Sub judice does not apply at all when all that is underfoot in a particular matter is an investigation. And even when a matter is pending before a court of law, PMG notes that South African legal precedent has already established that “the sub judice rule cannot be applied in a manner that may compromise the constitutional mandate of Parliament exercising oversight over the executive”.

Often members of the executive do not act alone in attempting to avoid giving answers. They are frequently assisted by ruling party MPs, weighing in to “frustrate debate and efforts of the opposition to play their role”.

This is wrong in two separate respects, PMG suggests. First, “one-party dominance and majoritarianism” should not be used as a mechanism to evade accountability.

And second, even ruling party MPs should be aware that their role in Parliament, as much as that of opposition MPs, is to “ask the tough questions, prepare and follow through on the critical issues”.

In order to enhance MPs’ understanding of what their role properly should be as public representatives, PMG proposes that ongoing training should be mandatory – unlike the current situation, which only sees training offered to MPs when they are first sworn in to the legislature.

A practical skill which many MPs need to sharpen is that of time management, PMG suggests: “Most MPs report difficulty in juggling various tasks and having to read large volumes of material”.

Other suggestions for parliamentary reform contained in the PMG report draw on, and expand on, those made in the Zondo report.

Zondo recommended, for instance, that more opposition MPs be appointed chairs of parliamentary committees. PMG supports this, but adds that perhaps the role of chairs should be rotated with some frequency.

How Parliament responds to the work of the Zondo Commission will be critical, PMG says.

The report concludes: “Institutions go through events and watershed moments that fundamentally shift how things were done before – this is the South African Parliament’s time for such evolution”. DM