SADC Parliament Draft Protocol; Committee Report on African Parliamentarian Meeting on Darfur: consideration

Meeting report

FOREIGN AFFAIRS PORTFOLIO COMMITTEE
15 August 2007
SADC PARLIAMENT DRAFT PROTOCOL; COMMITTEE REPORT ON AFRICAN PARLIAMENTARIAN MEETING ON DARFUR: CONSIDERATION

Chairperson: Mr D J Sithole (ANC)

Documents handed out:
Committee Report on African Parliamentarians meeting on the situation in Darfur: May 2007
African Parliamentarians Final Communique on the situation in Darfur
African Parliamentarians Follow-up Mechanism
Draft Foreign Affairs Portfolio Committee 2006 Annual Report
Draft Protocol on the SADC Parliament Part 1 and 2
Legal Opinion on Protocol on SADC Parliament by Parliamentary Legal Services

Audio recording of meeting

SUMMARY
The Committee was presented with its Report on the African Parliamentarians consultative meeting on the situation in the Darfur region of Sudan and it discussed what steps the Committee should take next on this matter. Parliamentary legal advisers then took the Committee through the Draft Protocol on the SADC Parliament and provided legal opinion on the wording of the Protocol. Concerns were raised about the SADC Parliament’s ability to hold its staff accountable for their actions and the payment of staff allowances.

MINUTES
Committee Report on Darfur Consultative Meeting of African Union Member State Parliamentarians The Chair noted that the Committee had received two reports arising from the two-day consultative meeting by African parliamentarians on the situation in the Darfur region of Sudan. One was this Committee’s official report and the other was a joint statement by all the African parliamentarians that been in attendance. The purpose of the meeting was to consider the responsibilities of national parliaments in responding to the humanitarian crisis in Darfur. National parliamentarians from ten African Union (AU) member States, as well as the Pan African Parliament, had attended the meeting hosted by the Parliament of Tanzania, in Dar es Salaam between 26 and 28 May 2007.

Mr T Leon (DA) stated that the report had been drawn up in May and that events had overtaken its findings because of Sudan's acceptance of a United Nations peacekeeping force in the last couple of weeks. He asked the Chair what further specific action Parliament was going to take on this issue.

The Chair replied that the Committee might be asked to participate in further studies, but that the Committee might not have the authority for further action and may need to ask the Speaker to authorize these actions. He suggested the Committee review the reports and come up with suggestions for further action.

Mr Leon asked for a briefing from the Foreign Affairs Department as soon as possible to assess the situation and look at its consequences for the African Union.

The Chair agreed that a briefing be scheduled so that both the Committee and the Foreign Affairs Department could have input about the situation. He suggested that Members continue to discuss suggestions outside the meeting. If the Committee approved the reports, it must continue to monitor the progress of its recommendations.

Mr M Skosana (IFP) said that there were questions about who would lead the peacekeeping force, Africans or Westerners. He said this was a burning issue for Sudan.

Mr Leon said that the real question was if the force was adequate. He pointed out that there had been UN peacekeepers present in Rwanda during the genocide. Darfur was a similar situation. The Committee must continue to advocate for a solution to the situation.

Mr M Kalako (ANC) said it was important for the Committee to review the report and present it to the full Parliament.

The Chair said he would schedule a briefing and the next step would be to review and comment on the report so that the Committee could make recommendations to Parliament about the Darfur situation.

SADC Parliament Draft Protocol
The Chair said that the SADC Parliament would sit in November and that member states were to comment on the Protocol before then. South African would have five representatives at the SADC Parliament and the speaker would be selected on a rotating basis from each of the member states every two years. He said that the Protocol on the SADC Parliament must go through a legal process and be accepted in each member state for the creation of the SADC Parliament. Only three countries had finished this legal process so far.

Parliamentary legal advisers, Mr F Jenkins and Ms K Beja, took the Committee through its legal opinion on the Protocol. Mr Jenkins noted that the Preamble of the Protocol was worded to put it in line with other SADC agreements. Article 2 and 3 might need to be amended to increase their clarity, but there were no real legal issues with them.

The Chair said that Article 4(2)(b) concerning the requirement of SADC officials to appear before SADC or produce documents might require an amendment of the SADC Treaty. He asked what standard practice there was for this in other organizations such as ECOWAS. How could the Parliament require officials to appear if they were unwilling?

Ms Beja said that this Article was similar to the AU Pan African Parliament's (PAP) Protocol. The Parliament would only be a consultative body for the first year and then have actual legislative powers.

Mr Jenkins said that SADC could only ‘request’ members to appear not ‘require’ them to because there is no police force for SADC. He said that this enforcement issue was problematic.

The Chair said that he read Article 4 differently. The way he read it meant that SADC officials would be accountable to SADC, not their own governments, and they would be required to be accountable to SADC.

Ms Beja said that she agreed that the accountability was within SADC. However, the strength of the word ‘require’ was problematic because it might create autonomy issues for member states. The lack of an enforcement mechanism was also problematic.

Mr Skosana said that states may object to the prosecution of it citizens.

Ms S Rwexana (ANC) commented that the Committee had the right to review the Protocol and raise its concerns.

The Chair said that the SADC Protocol was not South Africa's document. The Committee could make suggestions and submit them to the other SADC countries for the redrafting process in Malawi. The Committee could not redraft the document itself.

Prof P Turok (ANC) said that created accountability was important, but asked if there was a difference between an official and an office bearer.

Dr A Luthuli said that political office-bearers would be a different situation but accountability was important. If a person was representing SADC they should be accountable to SADC, not their home countries.

Mr Skosana felt that the language was not strong enough. Everyone who represented SADC had an obligation to carry out the Protocol.

The Chair said that political office-bearers may be a different situation to officials, but SADC could not allow officials to not appear when they had been asked to.

Mr Jenkins said that the word ‘require’ did not mean the same thing as a legal summons because SADC cannot enforce such actions. He said that requiring heads of state to appear might be difficult for practical reasons.

Mr Skosana said that office-bearers might require the insertion of a new paragraph that would replace the word ‘require’ with the word ‘request’.

The Chair suggested that perhaps the term ‘office-bearers’ should be taken out.

Mr Jenkins said that creating a separate paragraph for office-bearers would have to be dealt with as a political issue and be negotiated with other nations.

The Chair said that if heads of state thought that the Protocol subjects them to this rule, they might kill the Parliament. It might be preferable to use lighter wording.

Mr Skosana said it was important to take other cultures into account.

The Chair said that he agreed. It was important to note that SADC may not be able to win this battle. It was counterproductive to take a confrontational role with heads of state because they could refuse to release the funding for the Parliament. It would be tactically important to convince rather than to confront.

Mr Jenkins noted that Article 5 needed to be consolidated and that Article 5(3) was not very clearly worded.

The Chair suggested looking at the AU PAP Protocol wording for guidance on this section.

Mr Jenkins said that Article 6, dealing with the selection of delegates, did not contain a clear mechanism for selection.

The Chair said that it was difficult to discern how these officials would interact with the South African Parliament. There would be an accountability issue if Parliament hired someone from the outside. He asked who would pay for the upkeep of the officials.

Mr Jenkins replied that the Parliament would have to pay for the upkeep of the officials.

The Chair said this created a legal issue of how Parliament was to pay a person who was not a member.

Mr Skosana suggested using envoy status for the representatives.

The Chair believed that using an envoy would be improper in this situation.

Mr Kalako said that the Committee could ask Parliament's Rules Committee to make provision for these positions.

The Chair said that the Committee needed to look at this Article and see how it was resolved in the PAP Protocol.

Mr Jenkins said that Article 7(4) dealt with the cost of financing the representatives. It laid that responsibility with each state's national parliament.

Ms Baja said that this was not a major issue because it could be inserted in the national budget.

The Chair asserted that if a representative was doing work for SADC then SADC should be paying them.

Ms Baja said there is a division of the costs for different activities, but South Africa's Parliament would be designating its representatives to SADC.

Mr S Ramgobin (ANC) said that the definition of allowance could be clarified so it defined the obligations of national parliaments.

The Chair clarified that there would be a difference between paying an allowance to representatives and paying for SADC business such as observer missions.

Mr Jenkins suggested that the section could be redrafted to clarify that representatives received an allowance for each session of the Parliament, but that SADC would pay the cost of its own business from its budget.

Looking at Article 9, Mr Jenkins said there was an issue pertaining to the immunity of parliamentarians, and that the wording should be amended to state “within the territory of the state” so it did not create the impression that members have immunity of each state whether or not they are within that state.

The Chair said that South Africa has its own set of immunities for parliamentarians that could not be legally waived.

Mr Ramagobin said that immunity was not absolute, it depended on the criminal offence, and that other sections of the Protocol applied to this.

Mr Jenkins said that immunity was not absolute, but misconduct did not necessarily mean criminal offences. There was a contradiction between this and South Africa’s Constitution. There was the same issue with the PAP, but it seemed to be working anyway. He said he would recommend leaving out this section.

Mr Ramagobin said that the Article should be left in because it was important to have a way to deal with serious criminal offences. He said that the flexibility of the article was its strength.

The Chair said that the Article granted more protection then South Africa's parliamentary immunities so the Article should be left in.

Ms S Mothubase-Hounkpatin (ANC) asked why the Deputy Speaker positions were only defined as part time in the Protocol.

Mr Jenkins said that there were two Deputy Speakers who served on a rotating basis, and that SADC defined what ‘part time’ meant.

Mr Jenkins said that Article 16(1) needed to be amended to allow for the election of the Parliament's Deputy Speaker at the first meeting of the body.

Mr Jenkins said that Article 16(7) pertaining to the regulation of public access to meetings would be dealt with more fully by the SADC Parliament’s Rules Committee, but it was important to make sure it was delegated into this process formally.

Mr Ramagobin commented that there were already existing practices for the exclusion of the public and the media in certain cases.

The Chair said that if this ability to exclude were clarified in the SADC parliamentary rules, then it would withstand a challenge.

The Chair asked if the Committee wanted Article 18 to allow the receipt of donations to assist in the funding of the SADC Parliament.

Ms Mothubase-Hounkpatin said this might be helpful for certain specific programmes.

The Chair asked why Article 20 stipulated that heads of state must sign the protocol when this was a parliamentary issue.

Mr Ramagobin said that the South African head of state binds the country into treaties with other countries.

The Chair asked who had signed the PAP agreement.

Mr Jenkins replied that this Parliament had ratified the PAP Protocol, but it was signed by the executive. The executive was the designated person to sign this Protocol also. It was mostly a symbolic act.

Mr. Ramagobin suggested that the clause was innocuous and should be left in.

The Chair said he would leave the issue.

Mr Jenkins concluded that the Protocol appeared to be within the spirit of the SADC Treaty and asked if the document had been formally tabled by the Committee.

The Chair said that it had been referred, but the Committee did not have the authority to process it. The Committee would submit it with comments to the Speaker who would approve it.

The Chair noted that the 2006 Committee Annual Report had been finalised and distributed and would be adopted at the next meeting of the Committee.

The meeting was adjourned.