State of Corruption: Commission weighs up the failure of parliamentary oversight in South Africa

Drawing the chairing role from opposition parties could be done from within Parliament, according to professor emeritus of public law at the University of Cape Town, Hugh Corder, as this did not require legislation.

He told the Commission of Inquiry into Allegations of State Capture that the role could also be rotational. “Parliament sits for five years and every 18 months the committee chair could be rotated.”

Parliamentary oversight — or failure thereof — has been a recurrent theme at the commission in past weeks, with chairperson Deputy Chief Justice Raymond Zondo saying during a sitting in early February:

“I think in the current system of oversight, the evidence that I heard… it’s as if there’s no oversight in Parliament. Of course, there are some committees that have tried…”

https://www.dailymaverick.co.za/article/2021-02-05-parliamentary-oversight-doesnt-seem-to-work-zondo-scrutinises-election-system/

This was during the same week that former ANC member Makhosi Khoza, who once led the portfolio committee on public service and administration and prior to that was a member of Standing Committee on Public Accounts (Scopa) under the Jacob Zuma administration, detailed to Zondo how party members were told to toe the line regarding Zuma.

Other former committee members also testified at the time about how they were cut short by their ANC peers when trying to interrogate allegations of corruption and State Capture. 

Scopa is the only committee in Parliament that is chaired by an opposition party member, with the incumbent being the Inkatha Freedom Party’s Mkhuleko Hlengwa. Prior to this, Themba Godi of the African People’s Convention (APC) held the post.

Zondo said that Scopa “seems to be viewed as doing quite well in holding [the] executive to account, even though it is not chaired by the majority party”.

“Scopa seems to stand out as a committee that has done quite well. If one looks at that, one asks the question: Is it the presence of the chair of the committee that doesn’t come from a majority party that makes a difference in Scopa, or is it the personality of the chairperson, or a combination of both — probably a combination.”

Corder cautioned that one could find “complicit and non-questioning people in any political party”, but he agreed with Zondo that Scopa’s success appeared to be a combination of a non-majority party chairperson and “personality”.

https://www.dailymaverick.co.za/article/2021-02-04-as-makhosi-khoza-testifies-the-curtain-lifts-on-anc-parliamentary-caucus-factions-and-toeing-the-line-to-defend-zuma/

 

Lawson Naidoo, the executive secretary of the Council for the Advancement of the South African Constitution (Casac) testified before Corder, wherein he told Zondo:

“MPs hold their seats because of their political parties, who put them on a list, and they are then nominated and formally elected. Once they are elected, they take an oath of office to uphold the law and to do what is in the interests of the country, not the political party. It is the constitutional oath of office that should guide and direct MPs’ behaviour.”

“Your constitutional responsibility overrides that of the political party”, he said, adding that the present electoral system was “an inhibitor on MPs demonstrating that level of independence”. 

Naidoo told Zondo that there was a consensus of opinion in political parties, and “opinion that deviates from that is marginalised, which speaks to internal party tolerance and internal party democracy”.

“When those differences of opinion are raised to enhance the ability of the party to discharge its manifestos and mandates, as well as its constitutional mandate, for example when enhancing the Bill of Rights, then that is something that ought to be welcomed.

“But we see across political parties where a party line is taken and no deviation or debate on that is permitted. And I think that is the culture that is stifling to the development of our democracy and to the development of policies that can really begin to address the fundamental challenges that we face.”

When conflicts of interest arose, he said, MPs should work towards fulfilling the objectives of the National Assembly, not political parties, but this was not the political culture being practised in Parliament.

“Political parties get elected on the basis of a manifesto that they offer to the electorate. I am not suggesting we should do away with internal party discipline. It would be legitimate for a political party to say this is the manifesto we put to the electorate, and this is the manifesto we are going to implement as the majority party.

“If a member then disagrees with that manifesto, then the party has every right to discipline that member. But when it comes to matters of unconstitutional conduct, of allegations of illegality, of corruption, of misuse of public funds, of maladministration, then surely the MP has the right to speak out and not be constrained by party discipline…

“Parliament is the primary organ that is entrusted with oversight over the public funds, because Parliament allocates those funds to the executive.”

Zondo said it was necessary to find a way to accommodate “legitimate” party discipline and the ability of MPs to “deal effectively with certain specific and identifiable issues such as corruption”.

Naidoo said that as an example, if there was an allegation of corruption against the president, it was in the best interests “of the political party for that matter to be aired, resolved, and if the president is innocent it will be found to be so, and then move on, rather than having those allegations hanging on”. 

The issue had to be dealt with swiftly to restore public confidence, he said. “If there is no evidence, it must be dismissed, and if there is evidence, there must be consequences. That, I think, is the responsibility of Parliament.”

Zondo said a further “inhibiting factor” to MPs speaking out about corruption within their own ranks was that they owed their seats and political careers to their political leadership.

https://www.dailymaverick.co.za/article/2021-02-06-when-mps-would-only-talk-about-corruption-privately/

However, Zondo agreed with Lawson and Corder that while a change in the electoral system could solve some problems, it would not be the panacea to all the challenges faced by Parliament.

Zondo said that instead, there needed to be a “change of culture” and a stand by political parties not wanting to be “associated with covering corruption”.

He said obtaining this cultural shift would take some time.

According to Naidoo, one example of electoral reform that could enhance debate would be the changing of Section 47(3)(c) of the Constitution, which states that an MP loses his or her seat if they cease to be a member of their party.

“Within a new electoral system, one consideration could be that once a member is elected to a legislature, the seat belongs to that member until the next election, rather than the party. That would give that member the freedom to do what they believe is right without the threat of expulsion.”

However, Naidoo said, there was presently nothing in the parliamentary rules of the National Assembly that could be viewed as an obstacle to providing proper oversight. “But there is a failure to [provide oversight], a failure of political will, of political commitment and [which is] a product of the electoral system that we have”.

“Something more is needed until this new culture is developed that there is a compulsion of Members of Parliament to exercise their oversight responsibility and for that to have consequences.”

Naidoo said he would support the implementation of the proposed Accountability Standards Act, first proposed by Corder and fellow university associates in 1999, which provided a broad framework and minimum requirements for accountability and oversight by sitting members. 

He said the need for proportional party representation on committees in general was also a view that Casac believed should be considered.

A perception existed that the “majority party” controlled everything, he said, whereas if opposition parties chaired certain committees, it would present a better image of a multiparty democracy.

What State Capture had revealed was that the country needed a “truly independent anti-corruption agency… that doesn’t report directly to the executive… and reports to Parliament,” he said.

“I am pleased to say [this] is being considered by national government as they develop their anti-corruption strategy. We cannot expect the institutions that have failed us in the past [not to fail again] simply because there are new personnel at the head of those institutions for the moment.

“We need to strengthen the institutional capacity of anti-corruption agencies to execute their mandate without political interference and in the interests of the country at large, and we believe the time for it has come.” DM