‘Reimagining of Parliament’ thwarted by patchy application of State Capture report proposals

26 Oct 2023

Some 16 months ago, the Zondo Commission formally handed in its report, which sharply criticised Parliament for the shoddy oversight that allowed State Capture. The question remains, can Parliament move from box-ticking monitoring to qualitative oversight and accountability?

It’s not that no one knows what needs to be done. It’s how it’s being done.

That doing has been to cut the Zondo Commission report into bits of recommendations, matching them up with page and paragraph numbers and allocating them to a structure to deal with. In the Presidency, that would have been ministers mostly; in Parliament, it was mainly committees, but also the presiding officers and the secretary to Parliament.

While such tabulated categorisation makes the approximately 5,500 pages of the Zondo Commission’s findings and recommendations more palatable, it’s a tool to narrow the focus on the technical — away from the qualitative whole.

And with this, the opportunity to “reimagine Parliament” diminishes even as the Zondo Commission’s recommendations are based on the centrality of Parliament in the Constitution, according to Futurelect programme director and politics lecturer Dr Sithembile Mbete at Wednesday’s joint Public Affairs Research Institute (Pari) and Council for the Advancement of the Constitution (Casac) conference on implementing Zondo Commission recommendations.

“We need a shift in our political discourse that moves from speaking of our political system as if it were the US with an executive system, and speak of the parliamentary system we actually have,” Mbete said.

He cited a political culture that’s “given extraordinary dominance to the executive that isn’t warranted in the Constitution, that’s allowed for Parliament to take a back seat. The ANC’s internal party processes have become the culture by which our [political] system works.”

Patchy implementation at best

First the basics.

The Zondo Commission made 16 recommendations following its scathing findings on Parliament’s oversight failures — from research and support capacity, a Presidency oversight committee, to electoral reform, which Parliament’s implementation plan of 3 November 2022 covers.

What’s unfolded in the one year and three days since President Cyril Ramaphosa handed in his implementation plan to Parliament after receipt of the report in June is patchy at best, disingenuous at worst.

Dismissed was the recommendation on opposition committee chairs on the back of the governing ANC, which not only holds the majority of seats, but also favours majoritarian democracy.

Deemed already in progress were recommendations such as better resources for committees to do oversight, and capacitating the parliamentary research and legal units, which were given additional new recruits in mid-2022.

Deemed not requiring any action was protection for MPs against losing their seats for bucking the party line and for MIA ministers and their deputies to be held in contempt — the 2004 Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act already provides for this, according to National Council of Provinces (NCOP) Secretary Modibedi Phindela at the Pari/Casac conference.

Election reform as recommended by the commission had been completed with the adoption of the Electoral Amendment Act, according to Parliament.

Accepted as something to work on was the tracking and tracing of parliamentary recommendations to the executive. A database was in place together with a system of quarterly reports — and an annual one — from the presiding officers.

And so the late June 2023 update by Parliament on implementing was overwhelmingly green, as in achieved.

The update came after the presiding officers took exception to — and then met — Chief Justice Raymond Zondo over his critical public comments at a Human Science Research Council symposium.

“The reason why [Parliament] failed is well known. It is because the majority party refused to agree to the establishment of an inquiry to investigate the allegations,” the Chief Justice said. “If another group of people were to do what the Guptas did, Parliament would still not be able to stop it... I’ve seen nothing that has changed.”

The devil, as always, is in the detail.

Delays and acquittals

The political pickle of a Presidency oversight committee is, by all accounts, being kicked for touch to the next post-2024 election Parliament. The report of Parliament’s Rules Committee about its July visit to Westminster to study how the British prime minister is held to account has yet to be published.

ANC MPs argue that the various ministers in the Presidency account to different committees. A planning, monitoring and evaluation committee was recently established. And now Electricity Minister Kgosientsho Ramokgopa accounts to the public enterprises committee, just months after the ANC in May used its numbers to vote down a DA proposal for an ad hoc committee for Ramokgopa.

Budget Vote 1, the Presidency, remains the only one without a parliamentary oversight committee.

Similarly, action against parliamentarians implicated in State Capture is a swirl of delayed reports, outstanding reports, sanctions and acquittals.

In its June update, Parliament said 12 legislators had been referred to the joint ethics committee, with eight cases finalised.

However, from surveying what’s publicly available, it appears that only three MPs mentioned in the Zondo Commission report were referred to the ethics committee by the presiding officers — Labour Minister Thulas Nxesi, House chairperson of Committees Cedric Frolick and NCOP delegate Winnie Ngwenya.

All were cleared, it emerged at a National Assembly programming committee in late May, although the joint ethics committee reports were published in early October.

Read more in Daily Maverick: Four ANC MPs implicated in State Capture off the hook after Parliament’s ethics committee finds no breach of code

Four other State Capture-related ethics complaints were made by opposition parties and civil society.

ANC MP Mosebenzi Zwane was cleared of wrongdoing in the Vrede Dairy Farm scandal, but not on the Tegeta coal mine deal. Deputy Minister in the Presidency Pinky Kekana was sanctioned in November 2022 for accepting R170,000 from State Capture-implicated tenderpreneur Edwin Sodi, and finance committee chairperson Joe Maswanganyi was found guilty of failing to appoint a new Prasa board.

While the ANC, in its statement on its National Executive Committee meeting in April, said Tina Joemat-Pettersson, who died in June, had been cleared in parliamentary ethics proceedings, a joint ethics committee report appears outstanding.

The numbers don’t add up.

Parliament was asked for clarity and comment on this, and also on the Presidency oversight committee, the Joint Standing Committee on Intelligence, the lackadaisical committee monitoring of Zondo Commission recommendations, its views on their implementation and whether an ad hoc committee should have been established. Questions were submitted on 18 October with a deadline of four working days for responses — 5pm on 24 October.

No replies were received then. The next day, Wednesday, after various follow-up messages, an undertaking to provide responses was made, but nothing was received by the close of business.

Parliament regarded the issue of MPs’ ethics as dealt with, much like other Zondo Commission recommendations. As Phindela put it at Wednesday’s Pari/Casac conference: “We may not be happy with the outcomes, we may not be happy with the penalties, [but] it went through the process and there was an outcome.”

Side-stepping genuine reform

The Joint Standing Committee on Intelligence (JSCI) seemed to have a similar take when, behind closed doors, it decided no amendment to the Oversight of Intelligence Services Act was needed because it already allowed public reports to Parliament.

But the Zondo Commission raised these reports precisely because the JSCI had missed, and continues to miss, its statutory annual May deadline to publish its annual report — which provides a rare glimpse into SA’s state of intelligence.

Given the maladministration, corruption and messiness of the State Security Agency, the Zondo Commission sharply rebuked JSCI oversight failures for which “there can be absolutely no justification … Secrecy should not be used to hide criminality ... A situation cannot be allowed where intelligence offices are their own guardians.”

Elsewhere on the committee front, oversight and monitoring of the executive’s implementation of Zondo Commission recommendations are threadbare.

The promised quarterly reports on this committee oversight seem not to have materialised. Just two committees could be traced that were briefed on the issue — the justice and home affairs committees in September.

The Justice Department briefing was a detailed tabulation, including current research on the recommended legislation against the abuse of power and for whistle-blower protection. The Home Affairs Department briefing essentially said the passing of the Electoral Amendment Act had addressed Zondo Commission recommendations on a new electoral system, including constituencies.

Finish and klaar.

Instead of holding the executive — qualitatively — to account, regardless of potentially uncomfortable political party dynamics, Parliament accedes to the Cabinet. Most recently, this includes accepting draft legislation after the agreed-on 4 September deadline as the executive is looking at its largely unfulfilled 2023 legislative programme.

As the Zondo Commission report puts it, “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.”

Ticking off Zondo Commission recommendations in bits allows a sense of movement. But, in doing so, Parliament is side-stepping self-reflection — and the reimagining of Parliament, as the voice of the people, central to South Africa’s constitutional democracy. DM

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Politics

Patchy implementation at best

Delays and acquittals

Side-stepping genuine reform