Parliament is not toothless — it is MPs who kowtow to the executive

Of the three branches of the South African state framed in our constitution — the executive, the judicial and the legislative — parliament is undoubtedly the most dysfunctional, and has been for many years now.

For most of its history following the presidency of Nelson Mandela, parliament has been hobbled by two challenges: a hyper-partisan and obedient ANC caucus which takes orders from the executive, and an exhausted, fractured opposition which, lacking the numbers to deliver a majority in the house, erroneously believes it has no power to influence the legislative and policy agenda.

This means that the culture of parliament has become one in which all 400 legislators in the National Assembly — who have an extensive mandate for oversight, drafting laws, and approving budgets — are incapacitated by a false sense of powerlessness; a belief that the work of government is the sole preserve of the executive, with oversight coming from the judiciary.

Why else would President Cyril Ramaphosa see fit to yank the excellent Thandi Modise from the critical post of speaker of the National Assembly to bring her into the executive as minster of defence? The move is plainly a demotion; one which further denudes parliament of the talent it so urgently needs to be able to deliver on its mandate.

Why also would the leader of the opposition make a far from subtle plea for inclusion in the president’s administration — one couched as a selfless offer to “get his hands dirty” — by telling the SABC “… if it meant that we have to give up independence, we would have to examine that”.

Next to the speaker and the leader of government business, the leader of the opposition is a powerful, constitutionally mandated position within the legislative branch; one with an extraordinary amount of responsibility.

How lacking in imagination must one be to want to give this up for a cabinet seat?

It all points to a single malaise both inside and outside the national legislature: both the executive and MPs themselves clearly believe parliament to be a “lesser” branch of government; one lacking power, agency, and prestige. Yet this could not be further from the truth.

For example, since 2009, when a legislative amendment established parliament’s own independent budget office, the National Assembly has had the power to amend the budget as presented by the National Treasury. This is because every cent of government money actually comes from parliament — the institution votes the funds to the state to spend. Which means MPs are the custodians of your taxes, not ministers. Parliament has not once used this power.

It has merely depended on the Treasury to make budgetary decisions, and acceded to them by rubber-stamping whatever the executive presented to the finance committees — a symptom of the ANC caucus’s slavish obedience to the executive.

The Moseneke commission is another salutary example. The Electoral Commission of SA (IEC) is a creature of parliament — like all chapter 9 institutions its commissioners are appointed not by the minister, but by parliament’s committee on home affairs. Yet when the IEC was considering whether a local government election in the context of the pandemic would be sufficiently free and fair, it did not ask parliament to establish a commission of inquiry into whether the election should go ahead in October. It approached the respected former deputy chief justice to conduct the inquiry.

Not only did all political parties represented in parliament accede to this, they actually discussed this with the IEC in a political party liaison committee meeting, held the day after President Ramaphosa announced the election date, a month before justice Moseneke’s appointment.

Yet parliament possesses all the legislative and constitutional power to conduct such an inquiry. In fact, a parliamentary inquiry would have had more power than the Moseneke commission did, since parliament can subpoena witnesses and is the relevant authority to implement electoral recommendations. So why farm out this critically important work to a judicial commission?

I won’t dwell on the merits of the Moseneke commission report here; suffice to say the commission should never have been established, and any bid to have its recommendations ratified by the Constitutional Court is bound to fail because the apex court does not have jurisdiction over election laws — parliament does. Moving the election date is a political decision which can only be taken in the legislature through the amendment of the Electoral Act, and we could have saved a great deal of time had these matters been ventilated in Cape Town, rather than Centurion.

Working in a majority party parliament can be hard, uphill work. During my own time in the legislature we had budget amendment proposals rejected, commissions of inquiry scuppered by

MPs toeing the party line, and bids to impeach the president sabotaged so often that we had to approach the Constitutional Court for relief.

But we also passed original legislation, established task teams, moved the needle on policy, and used the legislature to hold the executive to account. A combination of vision, intellect, energy and imagination can unleash in parliament formidable opportunities to ensure good governance, prevent corruption and deliver services to the country’s people. But these require at least some political will on the part of MPs.