Parliament between the cracks of political will and constitutional duties - must do better

23 Jun 2022

A parliamentary oversight committee for the president, opposition MPs as committee chairpersons and legislation so an MP does not lose her/his party membership for pursuing proper oversight, are among the recommendations of the State Capture Commission.

Zondo's other recommendations include consideration of looking into a constituency-based electoral system, accountability legislation that includes ministers rectifying mistakes and shortcomings as part of the oversight process, a no-nonsense approach — with consequences — for ministers not answering questions, departments submitting documents late or ministers and officials not pitching for meetings.

“If it (Parliament) wants to be taken seriously by the executive and to be treated with respect, it must make it clear to the executive who calls the shots in Parliament. The executive must also not be allowed to call the shots in Parliament.”

Outlining parliamentary oversight missteps, the hard-hitting State Capture commission report released on Wednesday evening states Parliament should have acted on its constitutional oversight responsibilities much sooner than June 2017, when action seemed enmeshed in the run-up to the governing ANC’s Nasrec national elective conference.

“By March 2016, if not by 2013, no sensible Member of Parliament could have disputed that there were serious allegations for which there appeared to be plausible evidence which pointed to State Capture or similar malfeasance and which needed to be investigated and addressed.”

State Capture Commission Re... by Daniel

National Assembly, the Nkandla saga and the Guptas

March 2016 is a crucial date as the Constitutional Court, in a landmark unanimous judgment, found the National Assembly had acted in a manner “inconsistent with the Constitution” in the Nkandla saga. This was because the House had absolved then president Jacob Zuma from repaying a portion of the so-called security upgrades, including a cattle kraal, chicken run, swimming (fire) pool and amphitheatre — as the Public Protector had found.

But this court finding “did not cause the National Assembly to change its approach in respect to the allegations of State Capture and corruption”, according to the report.

Neither were there any inquiries into claims as far back as 2011 that the Guptas knew of Cabinet appointments, that they landed their wedding guests at the Waterkloof military airport in 2013, or the December 2015 sacking of then finance minister Nhlanhla Nene that caused market turmoil. Or the March 2016 public statement by then deputy finance minister Mcebisi Jonas about how the Guptas had offered him the finance minister’s post and millions of rands.

“Parliament still did not inquire into the allegations of State Capture,” says the report.

The commission puts it down to multiple factors — from ministers directing pre-committee ANC study group meetings, lack of political will and a disjunct of proclaiming support for vigorous oversight while not doing so in practice, but also ineffectiveness even when oversight happens, like ministers being allowed to ignore findings from Parliament’s spending watchdog, the Standing Committee on Public Accounts (Scopa).

The report on parliamentary oversight relates to special hearings between February and April 2021. Testimony ranged from opposition MPs recounting their frustrated efforts at governing party parliamentarians’ reluctance to act against ministers, to former ANC MPs talking of the fear that meant State Capture and #GuptaLeaks were discussed, if at all, only in whispers.

Billions of rands lost to State Capture would have been saved if Parliament had acted in keeping with its constitutional oversight responsibilities, commission chairperson Chief Justice Raymond Zondo had already asked on day two of the parliamentary oversight hearings in February.

Toeing the ANC line

Zondo repeatedly returned to this point: if parliamentarians swear an oath of office to uphold the Constitution — it includes imperatives like clean, fair and equitable governance, responsiveness, administrative justice and more — why was more not done to stop it?

That was resolved in Wednesday’s report — like the 2017 Constitutional Court judgment in the so-called secret ballot case: if in doubt, the MP’s oath of office to uphold and be loyal to the Constitution takes precedence.

“… party discipline may not legitimately be directed at obstructing Members of Parliament from doing what they believe, in good faith, and on reasonable grounds, to be appropriate in order to address concerns as to allegations of corruption or State Capture,” the report states in support of this.

“It is inappropriate for a party caucus to resolve not to permit, or to discourage conduct amounting to legitimate parliamentary oversight over the executive.”

It was also unacceptable for MPs not to inquire into misconduct because this “could cause embarrassment to, or divisions within, a political party”.

This was the State Capture commission’s answer to the ANC’s testimony in April 2021, hammering home party loyalty and discipline.

“You are on the ANC list, you have the duty to strengthen the ANC. You are not a free rider because you are in Parliament,” was how ANC National Chairperson Gwede Mantashe, also mineral resources and energy minister, put it.

“You are on the ANC list. You are in Parliament. You are expected to respect the Constitution… but you are not a free rider. You are not on a free-range where you can do as you like.”

President Cyril Ramap0hosa took a similar line in his testimony to Zondo in late April 2021.

“Our political system granted by the Constitution is that of a party system… That is our system. They [MPs] don’t go represent themselves and their jacket,” said the president — although he acknowledged the undesirability of the delays in taking action when the first word of State Capture emerged in 2011.

The electoral system was raised as a factor during the public hearings — now the State Capture commission report proposes Parliament consider introducing a constituency-based system that maintains proportional representation.

It’s a suggestion that comes as the National Assembly is processing a ministerial draft law that makes minimal technical changes to the electoral law to allow independents to contest national and provincial elections in line with the June 2022 Constitutional Court ruling. Parliament has had to ask the court for six more months to do the job.

However, even if this narrow electoral amendment bill is passed, nothing stops Parliament from pursuing a broad electoral reform — if the legislative sphere of state so wishes.

Then National Assembly Speaker Thandi Modise, now defence minister, in her testimony to Zondo, addressed the years of delays directly.

“It is regrettable that the impression is Parliament only woke up when things were really bad. For that we must apologise to the South African people.”

When action unfolded in June 2017, when Parliament instructed four of its committees to probe the State Capture claims, that was enmeshed in the governing ANC’s factional jockeying before its 2017 Nasrec national elective conference.

Yet of the four committees, only the public enterprises committee followed through with a full-blown inquiry. In late 2018, the parliamentary Eskom State Capture Inquiry issued its hard-hitting report recommending action against “grossly negligent” former public enterprise ministers Malusi Gigaba and Lynne Brown, which was also submitted to the State Capture commission.

The committee had shown “courage and determination”, according to the State Capture commission report, which also cited the 2016 parliamentary SABC inquiry as “appropriate parliamentary oversights (that) shows where there was a will, there was a way”.

But the ANC and its caucus in Parliament closed ranks — voting against a 2016 opposition proposal to probe State Capture and against eight motions of no confidence in Zuma, the last in August 2017 amid proclamations of opposition attempts at regime change and coups d’état.

The State Capture commission report says even if the ANC invoked internal processes, its internal checks and balances failed. “… (T)he party sought to prevent a proper exercise of a constitutional mechanism of accountability (motion of no confidence) by forcing members to vote accounting to the party line…”

And that is the crux of parliamentary oversight, that now must be addressed. DM

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National Assembly, the Nkandla saga and the Guptas

Toeing the ANC line