The prob­lem with Par­lia­ment

Trevor Manuel In the week Par­lia­ment fell into a chaos of #pay­back­the­money, it’s a good idea to read this for­mer min­is­ter’s ideas on how to fix it (note: it’s not about heck­ling, evic­tion or chant­ing)

CityPress - - Careers & Voices - This is an edited ver­sion of Manuel’s lec­ture at the an­nual Kader As­mal Hu­man Rights Awards in Cape Town

While we have myr­iad demo­cratic in­sti­tu­tions that all play a role in sup­port­ing good gover­nance. The role of Par­lia­ment (the leg­is­la­tors), and the re­la­tion­ships between Par­lia­ment and cit­i­zens, and Par­lia­ment and the ex­ec­u­tive, are fun­da­men­tal to achiev­ing the hu­man rights ob­jec­tives in our Con­sti­tu­tion.

The rel­e­vant de­bate to­day in­volves the qual­ity of our demo­cratic project. There is no doubt the Con­sti­tu­tion pro­vides a strong ba­sis for democ­racy. It ar­tic­u­lates the rights, ex­pec­ta­tions and du­ties of both cit­i­zens and the state, and makes pro­vi­sion for a range of checks and bal­ances. Too of­ten, we at­tempt to ab­stract rights and lib­er­ties, and the checks – such as the chap­ter 9 in­sti­tu­tions – only to ig­nore the en­tire me­chan­ics of what pro­duces a demo­cratic im­pact in the lives of or­di­nary cit­i­zens.

So when the peo­ple have cho­sen, as we have re­cently done in the gen­eral elec­tions, and we have a Con­sti­tu­tion as strong and ar­tic­u­late as ours, what hap­pens then?

The In­ter­na­tional In­sti­tute for Democ­racy and Elec­toral As­sis­tance (Idea) re­cently pub­lished a pa­per ti­tled As­sess­ing the Qual­ity of Democ­racy, in which it presents five key prin­ci­ples to be con­sid­ered when as­sess­ing democ­racy:

Democrati­sa­tion is a process that re­quires time and pa­tience; Democ­racy is not achieved through elec­tions alone; Demo­cratic prac­tices can be com­pared, but not pre­scribed; Democ­racy is built from within so­ci­eties; and Democ­racy can­not be im­ported or ex­ported, but can be sup­ported.

Our fo­cus must be on the devel­op­ment of an in­dige­nous South African democ­racy, born of our cir­cum­stances and built con­tin­u­ally by all of us to achieve what we de­fine as “hu­man rights” in our Con­sti­tu­tion.

The pa­per de­scribes the prin­ci­ples that guide the as­sess­ment of democ­racy as be­ing “pop­u­lar con­trol over de­ci­sion mak­ers and po­lit­i­cal equal­ity of those who ex­er­cise that con­trol”. Within the model that we have cho­sen, there are pe­cu­liar South African chal­lenges.

The first of th­ese, im­por­tant in the con­text of “pop­u­lar con­trol over de­ci­sion mak­ers”, is our elec­toral sys­tem. In his last ad­dress to Par­lia­ment in 1999, Pres­i­dent Nel­son Man­dela al­luded to this is­sue when he said: “Be­cause the peo­ple of South Africa ... chose a pro­foundly le­gal path to their revo­lu­tion, those who frame and en­act the Con­sti­tu­tion and laws are in the van­guard of the fight for change.

“It is in the leg­is­la­tures that the in­stru­ments have been fash­ioned to cre­ate a bet­ter life for all. It is here that over­sight of gov­ern­ment has been ex­er­cised. It is here that our so­ci­ety, in all its for­ma­tions, has had an op­por­tu­nity to in­flu­ence pol­icy and its im­ple­men­ta­tion.”

Then he raised the all-crit­i­cal ques­tion of that pop­u­lar con­trol when he said: “We do need to ask whether we need to re-ex­am­ine our elec­toral sys­tem, so as to im­prove on the na­ture of our re­la­tion­ship as public rep­re­sen­ta­tives with the vot­ers.”

Man­dela’s speech raises two spe­cific re­la­tion­ships as re­gards our leg­is­la­tors. The first is to the peo­ple of South Africa and the sec­ond is to the ex­ec­u­tive, which they are required to have over­sight over. In “fash­ion­ing the in­stru­ments”, leg­is­la­tors also pass the laws that give ef­fect to our Con­sti­tu­tion that put in train the means of im­ple­men­ta­tion. In this process of pass­ing laws, non­leg­is­la­tors play a cru­cial role. Does our cur­rent elec­toral sys­tem en­able the ful­fil­ment of th­ese mul­ti­ple re­la­tion­ships and roles?

It is in the ma­tur­ing of our Con­sti­tu­tion that we un­der­stand very clearly that, as Christo­pher Cald­well ar­gues, “democ­racy is not a syn­onym for good gov­ern­ment”.

The key re­spon­si­bil­ity is to eval­u­ate how all as­pects of gov­ern­ment in­ter­act. We fre­quently tend to over­look the im­por­tant role of the ex­ec­u­tive in shap­ing pol­icy and over­see­ing its im­ple­men­ta­tion.

Against the Bill of Rights, the Con­sti­tu­tion also re­quires that the state es­tab­lishes se­cu­rity ser­vices and ar­tic­u­lates their re­spon­si­bil­i­ties in the con­text of sovereignty.

It is im­por­tant to recog­nise that as and when poli­cies are adopted, there are no ab­so­lutes. All of the man­dates drawn from the Con­sti­tu­tion need to co­ex­ist to en­sure the over­all qual­ity of democ­racy is im­ple­mented. As it hap­pens, this quar­ter of the par­lia­men­tary cal­en­dar is de­voted pre­cisely to that task.

In re­spect of all func­tions, the ques­tion is whether the pro­vi­sions are ad­e­quate, “within avail­able re­sources”, and within each line func­tion whether the se­lec­tion of pro­grammes and the met­rics for im­ple­men­ta­tion are ad­e­quate. This is what the de­part­men­tal bud­get de­bates ought to be about. Per­haps we have al­lowed this im­por­tant an­nual pe­riod of ac­count­abil­ity to be de­based.

Par­lia­ment has be­come a sausage ma­chine, op­er­at­ing with a sin­gle ob­jec­tive – that ev­ery vote has been de­bated, how­ever su­per­fi­cially, so that Par­lia­ment can vote on the en­tire bud­get as quickly as pos­si­ble.

It is lit­er­ally im­pos­si­ble to fol­low the de­bates, by depart­ment, or to en­quire whether there is an over­all com­mit­ment to pro­duce mea­sur­able out­puts from the ap­pli­ca­tion of avail­able re­sources, as dis­tinct from prom­ises of new ini­tia­tives. Sim­i­larly, it is not pos­si­ble to place all of th­ese com­mit­ments side by side and an­swer whether, on the ba­sis of th­ese de­ci­sions, the demo­cratic project is on track.

I should point out that this is not a prob­lem of the fifth Par­lia­ment. The slide has been steady and con­tin­u­ous. But this year, it ap­pears ex­po­nen­tial be­cause of the time pres­sures cre­ated by the elec­tions.

We have no choice but to place this key in­ter­face between the ex­ec­u­tive and the leg­is­la­ture on the ta­ble for thor­ough re-ex­am­i­na­tion and ur­gent ac­tion. Op­ti­mally, the bud­get vote de­bates should in­form the public on whether we are any closer to re­al­is­ing the com­mit­ments framed in our Con­sti­tu­tion. Let’s re­fer to sec­tion 27. How many South Africans used the health sys­tem in the past year? For what pur­pose? Are we any closer to bridg­ing the qual­ity gap between pri­vate and public health­care pro­vi­sion? Have we de­fined what “suf­fi­cient food and wa­ter” means? Are we any closer to en­sur­ing such suf­fi­ciency than we were last year? And what are the plans to ac­cel­er­ate pro­vi­sion over the next three years, and the next 12 months in par­tic­u­lar? To put it more gen­er­ally, are we pro­gres­sively re­al­is­ing all the rights en­shrined in the Con­sti­tu­tion?

Par­lia­ment is the fi­nal ar­biter. There is no “democ­racy in­spec­tor” sit­ting out­side Par­lia­ment as­sess­ing whether it dis­charges its man­date in the let­ter and spirit of the Con­sti­tu­tion. So how do we know whether the “buck­et­loads of in­for­ma­tion” con­tain the de­tail and the met­rics that will be found use­ful? Who eval­u­ates? Who cares?

Within the me­chan­ics of our con­sti­tu­tional or­der, Par­lia­ment also has a role as the leg­is­la­ture. In the past, too many pieces of leg­is­la­tion have been re­turned from the Con­sti­tu­tional Court as be­ing non­com­pli­ant.

There are also in­stances where the opin­ion of the Con­sti­tu­tional Court is can­vassed be­fore the pres­i­dent as­sents to a piece of leg­is­la­tion. Fur­ther­more, there is a great un­even­ness in the qual­ity of leg­isla­tive craft­ing.

The Public Pro­tec­tor Act has a cu­ri­ous craft­ing at clause 9, which was amended in 2003 to read: “No per­son shall in­sult the Public Pro­tec­tor or the Deputy Public Pro­tec­tor.” No such pro­vi­sion ex­ists for the pres­i­dent, the Speaker of the Na­tional Assem­bly or the chief jus­tice.

We must also dis­charge views on the sec­ond as­pect in the Idea pa­per: “Po­lit­i­cal equal­ity of those who ex­er­cise con­trol” over de­ci­sion mak­ers. We have an obli­ga­tion to en­sure that dis­cus­sions about law, rights, the strength of our democ­racy and the qual­ity of life of our peo­ple nei­ther be­come nor re­main the pre­serve of a small elite.

In South Africa, the im­pact of in­equal­ity is far more pro­found. The real chal­lenge here is that there is a per­cep­tion that in­come taxes are borne dis­pro­por­tion­ately by wealth­ier peo­ple. Yet they opt out

Re­publics and democ­ra­cies ex­ist only by virtue of the en­gage­ment of their cit­i­zens in the man­age­ment of public af­fairs


of public ser­vices such as ed­u­ca­tion, health­care and even polic­ing. So the sense that there is no value for money for taxes paid is an ad­di­tional cat­a­lyst for tax avoid­ance.

Yet th­ese are the classes that chat­ter. Peo­ple who be­lieve that their rights are un­der­mined by the ex­ten­sion of ser­vices to the ma­jor­ity hap­pen to be those with voice. We need to fac­tor this in to our own ap­pre­ci­a­tion of that im­por­tant prin­ci­ple ar­tic­u­lated in the Idea pa­per that speaks of “po­lit­i­cal equal­ity of those who ex­er­cise con­trol” over de­ci­sion mak­ers. Th­ese is­sues are im­por­tant in un­der­stand­ing Cald­well’s state­ment.

It bears re­peat­ing that the pream­ble to our Con­sti­tu­tion sets the goals for good gover­nance. In par­tic­u­lar, the sub­clause that speaks of the need to “im­prove the qual­ity of life of all cit­i­zens and free the po­ten­tial of each per­son”. The chal­lenge to de­velop poli­cies ap­pro­pri­ate to this man­date, the need to al­lo­cate ap­pro­pri­ate re­sources to pro­vide the ser­vices that im­prove the qual­ity of life and the over­sight to en­sure mea­sure­ments are in place to en­sure progress is trace­able, to­gether de­scribe good gover­nance. The overem­pha­sis on chap­ter 9 in­sti­tu­tions is most un­for­tu­nate. The Holy Grail of gover­nance will be at­tained when th­ese in­sti­tu­tions are to the na­tional body politic what the im­mune sys­tem is to the hu­man body – gen­er­ally out of sight, but work­ing hard and scream­ing loudly only when a per­son is ill or dis­ease-rid­den. But that should not de­tract from the im­per­a­tive of good gover­nance.

There are a se­ries of ques­tions we must grap­ple with to bet­ter un­der­stand the chal­lenge of good gover­nance. Do we know what our com­mon pur­pose is? How do we de­fine com­mon pur­pose in a so­ci­ety as grotesquely un­equal as ours? Is good gover­nance pos­si­ble in the ab­sence of the es­sen­tial threads that bind so­ci­eties – the in­tan­gi­bles such as trust and hope?

And what of power? Should this be an im­po­lite topic whis­pered about in dark cor­ners, or do we need to recog­nise that it will re­main at the epi­cen­tre of pol­i­tics? It needs to be un­der­stood, per­mit­ted and checked. Ap­pre­ci­at­ing this is also an es­sen­tial di­men­sion of good gover­nance.

Ob­vi­ously we can­not outsource the re­spon­si­bil­ity for the re-es­tab­lish­ment of the sense of good gover­nance to ei­ther out­side agen­cies or elected rep­re­sen­ta­tives. The chal­lenge is that all of us need to be in­volved in the process of con­tin­ual build­ing, and of ask­ing the tough ques­tions. Yet we must con­tinue to en­sure our public rep­re­sen­ta­tives are com­pe­tent.

Au­thor Tony Judt raises the fol­low­ing as a gen­eral ob­ser­va­tion on the build­ing of good so­ci­eties: “The moral im­pulse is unim­peach­able. But re­publics and democ­ra­cies ex­ist only by virtue of the en­gage­ment of their cit­i­zens in the man­age­ment of public af­fairs. If ac­tive or con­cerned cit­i­zens for­feit pol­i­tics, they aban­don their so­ci­ety to its most medi­ocre and ve­nal public ser­vants.”

Ours is a young repub­lic, and ought to be the most as­pi­ra­tional. The key is­sue is why good men and women ap­pear to dis­en­gage. In our par­lance, the mes­sage is clear: “Unz­ima lomtwhalo; si­funa simanyane.” (The load is heavy; we must unite.)


IN THE RED Mem­bers of the EFF de­manded in Par­lia­ment that Pres­i­dent Ja­cob Zuma (be­low) pay back the money that was spent on his Nkandla man­sion. They were or­dered to leave the house

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