How MPs can do better in their job of holding the executive to account
Legacies of Ben Turok and Kimi Makwetu honoured in a report on why parliament’s checks and balances failed
The role of parliament in enabling, or at least overlooking, corruption and state capture has come to the fore at the Zondo commission of inquiry in recent weeks, with evidence of parliament ’ s manifest shortcomings coming from academics and nongovernmental organisations including the Council for the Advancement of the SA Constitution (Casac).
In February 2019, deputy chief justice Raymond Zondo opined, while listening to testimony from Dennis Bloem, former chair of the portfolio committee on correctional services: “I am ... concerned if a situation where ... a structure of parliament, which has very important constitutional responsibilities of oversight over the executive raises issues and they are just ignored and nothing happens to anybody.”
The checks and balances built into our model of constitutional democracy have failed us. It was this concern that prompted the late Prof Ben Turok to initiate the Checks & Balances Report under the auspices of the Institute for African Alternatives (IFAA), which is to be launched on Thursday. Turok, a former MP, himself said: “People’s money is being squandered by the executive, and parliament is complicit in this.”
The research project focused on how reports from the auditor-general could be used more effectively by parliament to hold the executive to account. The Checks & Balances Report makes two sets of complementary recommendations.
The first, “Way One”, considers how parliament can adapt its processes to sharpen its oversight reach, while “Way Two” examines how the quality and character of elected representatives can be enhanced. Both of these matters were canvassed in Casac’s written submission to the state capture inquiry and in our oral testimony.
Parliament has a clear constitutional mandate to “scrutinise and oversee executive action” and ensure the executive, including organs of state, is held accountable. The rules of the National Assembly, together with a policy framework, the Oversight and Accountability Model, provide the tools to carry out this critical constitutional responsibility. Despite committees having considerable powers under the rules, parliament has failed to exercise effective oversight. There are no legal or structural impediments standing in parliament’s way — it is simply that the majority party has used its power to block any meaningful action.
While it is perfectly acceptable in a democracy for a majority party to use its muscle to decide a question of policy or pass a law (so long as it passes constitutional muster), it cannot be acceptable to abuse that numerical advantage to stifle or shut down debate. The latter inhibits parliament’s function as “a national forum for the public consideration of issues”.
Recent evidence at the state capture commission has exposed how the majority prevented inquiries into corruption and state capture within state-owned companies, just as the standing committee on public accounts (Scopa) stalled a probe into the arms deal in the early 2000s.
It is trite to say that the auditor-general has consistently been the most efficient and effective of the state institutions supporting constitutional democracy, and Scopa, despite its wobble on the arms deal, warrants a similar accolade within parliament. Yet irregular and wasteful expenditure continues unchecked.
This led the late former auditor-general, Kimi Makwetu, to seek new powers under the Public Audit Amendment Act, which the report notes “allow the auditor-general to intervene administratively to encourage, and then compel, accounting officers to address material irregularities revealed by the auditing process ... [these] powers become relevant only when parliament and the executive fail to perform their functions”.
Casac’s submission and the IFAA report dust off the 1999 “Corder Report” commissioned by then parliamentary speaker Frene Ginwala from a group of University of Cape Town academics led by Prof Hugh Corder. Corder’s recommendations included that an accountability standards act be legislated to set minimum requirements for accountability, and to provide a mandatory framework for oversight.
Referring to what is termed “amendatory accountability”, the law would oblige the executive and organs of state to submit to scrutiny and impose on them an obligation to take effective remedial action against any shortcomings.
The alternative to such legislation is for parliament to develop its own customs and conventions regarding oversight. However, the Oversight and Accountability Model policy has not been translated into such agreed practices.
In a dominant party system such as ours there is little incentive for the majority party to create a level playing field for oversight, unlike in a competitive democracy where a current governing party may find itself in opposition after the next election. The latter scenario is likely to provide a more equitable distribution of power between the legislature and the executive.
The state capture commission’s spotlight on the role of parliament suggests Zondo’s report will make some findings and recommendations in this area. Parliament must grasp this nettle, review its practices and ensure its members are adequately equipped to carry out their constitutional mandates and not just their party manifestos. In conducting this exercise it must consider the jurisprudence from recent court cases involving parliament. The courts have provided guidance — the separation of powers doctrine permits them to do no more — on how to exercise their constitutional responsibilities.
The second set of proposals from the IFAA report overlap with Casac’s advocacy for a review of the electoral system. While the IFAA focuses on the quality and character of MPs and the need for ethics training, it also highlights the need for parties to interrogate their selection of candidates for party lists. This is, of course, an issue that will arise should we move towards a mixed constituency and proportional list electoral system, which I would say now seems likely. Such a system, with a smaller list of candidates per multi-member constituency, would allow voters to make a choice based on the quality and character of those seeking their support.
However, the fact that a similar system at local government level has not improved the quality of ward councillors is a strident caution that this is not an easy solution. Ultimately the power for change rests with the electorate. We need to demand change by not allowing parties to foist unsavoury characters on us.
Makwetu lamented the lack of “consequence management” for those who have transgressed financial prescripts for wasteful and irregular expenditure. He asked rhetorically: “How loud can these voices be? Can they be even louder?” To honour his legacy, and that of Turok, we should be screaming from the rooftops across the land.