Benchmarking parliamentary oversight and scrutiny
‘Our responsibility is oversight and the public should constantly check that we are doing our work effectively’
With enormous foresight, Gauteng Provincial Legislature (GPL) is the only legislature in South Africa and only the third country outside of Ghana and Australia to have established a standing Committee for the Scrutiny of Subordinate Legislation (CSSL).
The committee, established in terms of the Gauteng Scrutiny of Subordinate Legislation Act 5 of 2008, has been playing a vital role for the legislature and the Gauteng community in a number of ways.
This has been a discreet body so far, but fully intends to come out from being almost a well-kept secret, becoming a recognised body that can be turned to by both the Gauteng community and legislators to make a viable difference to the way Gauteng is run and for putting through improvements.
According to the chairperson of the CSSL Committee, the Honorable Jacqueline Mofokeng, the volume and complexity of legislation in a modern society like our own means the legislature cannot attend to all details. The legislature provides the policies, principles and frameworks in the principal acts and delegates the authority to fill in the administrative and technical details by way of subordinate legislation to the executive.
“Constitutionally the legislature remains responsible for overseeing the activities of the executive on behalf of the voters,” explains Mofokeng, “which includes the scrutiny of subordinate legislation made by the executive.
“In line with this constitutional responsibility of the Gauteng Provincial Legislature, the role of the committee is to conduct oversight by way of scrutinising draft regulations submitted to the GPL by the executive. It also recommends when required, the disapproval of draft regulations and reviews every provincial bill that grants powers to the Gauteng government or another body to adopt subordinate legislation. The committee acts in a spirit of co-operation, and endeavours to liaise and consult with all stakeholders in performing its functions. The committee seeks to support the executive in making subordinate legislation that is lawful and serves the people of Gauteng in the most effective and just way. It is not empowered to scrutinise other forms of subordinate legislation, such as proclamations.
Learning best practices
The scrutinising of draft regulations is a groundbreaking procedure that has set the benchmark for Parliaments in South Africa and elsewhere in performing their over- sight and scrutiny responsibilities.
The committee consists of the chairperson and seven members from different political parties who are all members of the provincial legislature. The committee is supported by the legislature administrative staff. Committee members have attended constitutional law training, and are presently on paralegal training, with further training to take place in stages.
“We have been to Ghana and Australia to learn best practices because they have had similar committees for years,” continues Mofokeng. “Looking at these two countries, we believe Gauteng is ready to show other legislatures what scrutiny of subordinate legislation is all about.
“This committee has already approved school governing and gambling regulations, transport licence fees, hospital, ambulance, uniform and mortuary fees. It has also passed liquor licence fees for shebeens, taverns and pubs and oversees such issues as petitions and languages. We have a story to tell and intend communicating about the activities we participate in.”
Mofokeng stresses that this is an apolitical entity with no selfinterest and with a multi-party participation. “It is a journey we all travel together on to move and refine policy for South Africa. Our responsibility is oversight, and the public should constantly check that we are doing our work effectively and responsibly.”
The CSSL scrutinises and assesses the socioeconomic impact of draft regulations to ensure compliance with the Constitution and the law and also liaises with stakeholders on the contents and lawfulness of draft regulations and what possible steps need to to be taken once approved.
In the committee’s latest report for the 2016/2017 financial year, it says that it has observed and commended a general compliance by departments with procedures and processes of the committee. Most regulations assessed by the committee involved identifying and closing perceived policy gaps and ensuring that annual fee adjustment regulations were reasonable and were within the inflation rate.
Awareness campaigns
“In line with our legislative mandate, we embarked on a range of activities during the year under review and managed to respond to strategic objectives, which include the scrutiny of regulations that ensure a strong and effective committee system, active participation in facilitating and providing value-adding input to law-making in order to improve the quality of life of the citizens of Gauteng and providing political and administrative leadership in a unified manner that ensures moral authority transparency and accountability,” stressed Mofokeng.
“We will continue with our awareness campaigns about the work we do and our workshops with the Gauteng provincial government departments around the scrutiny of subordinate legislation. This is an area that requires urgent attention and needs to be targeted as a key performance and priority area.
“There must be an improved integrated working relationship with other portfolio committees and the departments must table draft regulations to the legislature timeously in order to allow sufficient time for processing.
“Public participation on draft regulations requires more strengthening and departments must ensure that the public is appropriately educated on the importance of providing verbal and written submissions on draft regulations. This will assist in curbing negative socioeconomic impact on the people of Gauteng,” concludes Mofokeng.
How the committee works
Non-adherence to the CSSL’s manual in the process of political decision-making can result in the introduction of bills that are technically deficient, poorly drafted or at variance with the policy purpose.
There are 15 distinct steps set out in the CSSL’s manual. The first is the drafting of regulations by the MEC and the respective department. If the responsible functionary is the MEC, the draft regulations must be accompanied by a certificate from a state law adviser for compliance with the law.
The third step involves the responsible functionary tabling the certified draft regulations in the GPL and the publication of draft regulations for public comment, wherever necessary. The Office of the Speaker immediately refers draft regulations to the CSSL for consideration, decision and reporting in terms of the CSSL Act. In cases where the draft regulations are of an urgent nature, or where compliance with the CSSL Act would otherwise be inappropriate, the speaker, after consultation with the chairperson of the CSSL, may exempt the regulations from the process of scrutiny.
Then there is a presentation by the MEC or delegate of the responsible department to the CSSL, which can be done verbally in a meeting or in writing before step six, which is when the CSSL must scrutinise draft regulations within 21 days of referral.
Depending on the nature, importance or complexity of the regulations, the CSSL may prefer to finalise scrutiny by itself, but it has the discretion to refer the regulations to another committee of the GPL in order to obtain expert opinion if deemed necessary.
In step eight, if the CSSL finds that the draft regulations do not comply with one or more of the criteria mentioned in the CSSL Act, it must request the responsible functionary to amend the regulations and re-submit another draft, covered in step nine. The functionary may not ignore the request of the committee and make the regulations without the committee’s approval. Then the committee must, within 21 working days, decide whether to approve or disapprove the draft regulation, or request a 14-day extension.
In step 11, if the committee approves draft regulations, the chairperson must notify the responsible MEC and department in writing within seven days of the outcome of the scrutiny process and they must ensure that a notice is published in the “Announcements, Tablings and Committee Reports”.
If, in step 12, despite the various possible steps to find a solution the committee disapproves the draft regulations, it must report this to the House for consideration and decision.
Step 13 provides that the MEC and the responsible department may not make any regulation unless a draft of it has been approved by the CSSL, or a draft of it has been approved by the House if the CSSL has disapproved it, or when the prescribed periods for scrutiny have expired without a decision being taken by the committee.
After approval of the draft regulations by the CSSL or the House, the functionary may go ahead and make the regulations, which when made must be published by the responsible department in the Gazette within 14 days. The final step involves the responsible functionary sending the regulations to the premier’s office for indexing.