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OVERSIGHT AND ACCOUNTABILITY JOINT AD HOC SUBCOMMITTEE
30 April 2002
CONSIDERATION OF DRAFT REPORT BY TECHNICAL TEAM
Technical Team's Draft Report
Report on Oversight and Accountability (Corder Report)
Chairperson: Ms C Nkuna (NCOP)(ANC)
The Ad Hoc Committee was tasked with looking at the report prepared by Professor H Corder, Ms S Jagwanath and Mr F Soltau, known as the Corder Report, and making recommendations to the Joint Rules Committee on its findings. The Committee then set up a technical task team to draw up a draft report, which the Committee was to discuss at the meeting.
The aims of the Corder Report include the following. Examining the constitutional and theoretical values that underpin the concepts of oversight and accountability and the purposes they serve in a democracy. Examining the meaning of 'oversight' and 'accountability' in relation to the constitutional rules of the National Assembly and the National Council of Provinces. Making recommendations on mechanisms and procedures that can be put in place to realise the constitutional obligations of parliamentary oversight of the executive. More specifically to look at the nature of reporting to Parliament and making detailed recommendations on the content of reports and the manner in which reports must be dealt with upon their receipt by Parliament.
The Committee therefore looked at the Corder Report to ascertain whether or not it has dealt adequately with issues and has attempted to expand on the Corder Report primarily through discussions, submissions and research undertaken by the Members. The subcommittee further emphasised that it was not a structure engaged in oversight activities, nor was it to oversee other Committees in their oversight work but was merely assessing the Corder Report.
The Chairperson, Ms C Nkuna (NCOP) (ANC), stated that the Committee had been given a Draft Report by the Technical Team, which had not been discussed by the Subcommittee yet. This report would therefore be discussed. Unfortunately there was only one member of the technical team, Mr Lever, including herself present in the meeting.
The Committee had been given the task of going through the Corder Report on Parliamentary oversight and accountability. They have since gone through it and a technical drafting team has drafted the report, which shall be discussed. The Committee had found that there were some areas in the report that were lacking and they had requested submissions and had also flagged or highlighted other areas.
Before going through the report she asked the technical team whether there were some resolutions that had not been dealt with.
Mr JH Jeffery (ANC) stated he had a problem with proceeding with the group available because some Members, for instance Mr MF Cassim (IFP) who were referred to frequently in Chapter 1 of the Report, were not available.
The Chairperson stated that other Members would join them soon, as this meeting was clashing with other meetings.
Mr Jeffery raised further concern about the attendance stating that this was meant to be the final meeting and there were a number of issues that needed rephrasing. Would it not therefore have been better to have had a report without the directives stated for instance on Page 4, which stated "Mr Lever to contextualise". Why could there not be a completed report?
Mr Lever (NCOP)(DP) stated that in that case the annotation could be removed.
Mr Jeffery said it should not be necessary to go through each directive to see what has to be done by the respective Member to finalise it.
The Chairperson stated that the understanding was that they would make input at the subcommittee level and the Members would see whether that input should be taken or not, and Members deliberate on them.
Mr Lever asked whether these inputs were ready and whether there was a new introduction. Had Mr Cassim rephrased it? If not he suggested they wait until this had been done.
The Chairperson suggested that they begin since the intention was that they go through the report and agree how to proceed.
Mr Cassim stated what they needed to do when they read the draft was to highlight that they are not a structure to oversee committees nor are they to become a specialised committee to oversee parliamentary work. That responsibility has been given to the Parliamentarians themselves.
The point he would like to make is that they had the Corder Report in front of them to guide their thinking, with the benefit of that they could proceed. He had given the Chair a copy of the work he had done on oversight, which is an Annexure to the Draft report, which could be forwarded to Members by this afternoon.
The Chairperson asked the committee what they were saying about the introduction, which needs to be rephrased.
Ms Smuts (DP) stated that it should reflect the terms of reference as given by Corder and those who worked with him as at Page 6 of the Corder Report. The proper way to proceed would be to highlight the terms of reference and if the Committee feels that more research is needed on the Corder Report then it must state so to the Joint Committee.
The Chairperson stated that they could not discuss resolutions that the technical committee came up with now. What needs to be done is that they come up with terms of reference. What was the Committee's feeling on this?
Mr Jeffery stated that the report had to be read with the Corder Report, one cannot make sense of what is said in the Corder Report without having read it. They could therefore not allude to the terms of reference in the Corder Report without having read it and fully understanding it and knowing the points of reference being made. The report therefore goes with the Corder Report.
The Chairperson asked if there was any response to page 2 in regards to the terms of reference that the drafting team came up with?
Ms Smuts stated that there was, it seems to quote large chunks, it is not fair to say that it has to be read alongside the Corder Report. Much of what has been said ignores what has been stated in the Corder Report.
Mr Cassim asked as whether Ms Smuts was saying that something had not been recorded properly?
Ms Smuts stated that she would raise them as they went through, as there were many examples.
The Chairperson then stated that since they were not in agreement on the introduction, Members should refer their issues to the technical drafting team.
The Chairperson then moved to the question of approach. She stated that in instances where she had felt that there was insufficient information, she had requested submissions and where she felt that they did not have the capacity to deal with certain issues these had been highlighted. Did Members have any questions on the approach?
Ms Smuts stated that they should go with the idea of doing more research, taking the view that the Corder Report goes to the heart of the matter. Clarification was needed on the criteria of how parliament would practise its oversight duties. The Corder Report is right in suggesting a law.
The Chairperson asked if there was anything else on the approach. As there was nothing she suggested they move onto Chapter 1.
This Chapter gives an executive summary of what the report aspires to do. She asked whether the Members had anything to say on it, stating that the technical team on it had done nothing. As there were no comments she moved on to Chapter 2.
In summarising Chapter 2 she stated that it deals with general oversight and accountability, separation of powers and the party based system. Did Members have anything to say on accountability, being the first item on page 3? There is the view that accountability needs to be expanded. Did Members wish to make additions?
Ms Smuts stated that theirs would be more of a deletion, they felt that the last sentence should be deleted as it implies the expending of public money.
The Chairperson asked her whether she felt anything should be added.
Ms Smuts stated that it should simply be deleted.
The Chairperson asked what Members felt about Ms Smuts' point.
Mr Cassim stated that when they defined accountability they tried to set out a broad area of what accountability means. They needed to make the point that it does connote the spending of public money. If taken out, the definition of accountability would be diminished. They also looked narrowly at what the emphasis should be and it was spending of public money. There is therefore the narrow and broader view.
Mr Jeffery stated that if Ms Smuts's suggestion were to be taken into account they would lose the possible focus of what this line is supposed to promote.
The Chairperson then asked whether this means we continue with the word?
Mr Jeffery stated that we keep them both, but keep Ms Smuts words in account, as this is the major role of Parliament.
Mr Lever stated that the sentence could read could exclude 'and narrowly connote' as it seems the spending of public money includes both.
The Chairperson asked what were their feelings about this?
Mr Jeffery stated that it could have a narrow interpretation, therefore they had to be careful of this. Talking of the same thing can have a narrow meaning; it should therefore be included as one could have the thought that it deals only with financial responsibility, and if we take into account Mr Lever's point we are not saying it.
The Chairperson asked if Mr Lever wished to comment.
Mr Lever stated that they seemed to be covering an area already dealt with, they were focusing on a direction which they had traversed. The focus should be on something that has been complemented, it therefore gives the wrong emphasis.
Mr Cassim stated that the words had been carefully considered. If they had been put in any other way they would have excluded the purpose of the definition. In many of the publications they had looked at they saw accountability as the handling of money, it therefore indicates that in their view this would be a narrow connotation. In certain instances accountability can mean the accountability of things that has hardly anything or nothing to do with the spending of public money.
The Chairperson then went on to state that if the Members thought that accountability had not been dealt with enough they could make an addition, if not they would look at it as the technical committee.
The Chairperson then suggested they look at 'oversight', but they should bear in mind that it is broad term and therefore the need for them to have come up with a summarised version. She asked for the Committee's ideas on oversight.
Mr Lever stated that he would like to refer to the Constitution. In the first line "function" should be deleted as it makes it clumsy.
The Chair asked whether the Members agreed to this. Since the general consensus was that 'function' be deleted, the whole sentence was acceptable otherwise.
The Chairperson suggested that they move on to page 4. She stated that there were resolutions by the technical team which would be held in abeyance. They would therefore look at the separation of powers between Executive, Judiciary, Parliament, looking at a situation where Members of the Executive have been drawn from the Legislature. What impact would this have and a situation where Members of the Executive are not drawn from the Legislature, does it make it difficult for the Speaker to control persons not in the Legislature?
The Chairperson requested Mr Lever to comment on this.
Mr Lever stated that the conclusions drawn are not fully justified. Members of the Legislature and Executive should be aware of their inherent duties. By implication, it tends to be judgmental as if making judgement on the ruling party or anyone else. In his view it should be put in this context.
The Chairperson thanked Mr Lever for his comment and stated that where Cabinet members are drawn from the Legislature it has its advantages and disadvantages. For instance where an Executive is drawn from the ruling party and the member refuses to conduct their oversight duties over the members of their party. The speaker may find it difficult to reprimand them if for instance they do not attend sessions.
Ms Smuts suggested that Chapter 2 be cut right down to the definition. She suggested that point (ii) on page 5 be removed, which read a bit hollow and tried to grapple with issues not suggested in the Corder Report.
Mr Cassim stated that it was preposterous that when someone is reading a report carefully they do not look at what is implied. They should be alive to this possibility.
Mr Jeffery recalled extensive discussion at the Committee meetings. The report is therefore supposed to reflect their deliberations. However, the report seems to give a brief discussion of the points without a major conclusion. The conclusion maybe more definite than stating a suggestion tabled for discussion.
The Chairperson stated that they would not be deleting anything from this report. Even if it were a big report, they would come up with other mechanism to reduce it; they should therefore not delete anything now. She said that she would need Mr Lever's support on this issue as he was a member of the technical team and they had deliberated on these issues.
Mr Lever acknowledged he was a member of the technical drafting team, but these issues had been raised and the Co-chair had stated that this would be the appropriate time to raise them.
The Chairperson agreed.
Mr Mathias stated that he had mentioned something to the technical team but he could not see it in the report, and it should therefore be decided at a full Committee meeting whether we should include it.
He also referred to page page 6, where it suggested the removal of the paragraph stating that the hampering of effective oversight is further exacerbated by the electoral system of proportional representation. There will now be the opportunity of much more independence, the removal will therefore not make members subject to their party bosses, this being reflected in the Corder report.
The Chairperson requested Mr Mathias to draft this for the Committee and they would look at it.
Mr Jeffery stated that he did not think it would be a problem to refer to the fact that this was being looked into.
Mr Lever agreed with Mr Jeffery on this point, and further stated that before they move from this paragraph. At paragraph 4 the quotation had not been included he had requested it be added from page 9 of the Corder Report as it simply completed the quotation.
The Chairperson stated that the point had been taken. They then moved onto page5 asking if anyone had anything to say on page 5 at the top.
Ms Smuts referred to the statement 'When Ministers are also MP's a more dynamic interaction between Ministers and backbenchers is facilitatedâ€¦.' She commented that this might be true of the ruling party.
Mr Jeffery stated that he was not sure what Ms Smuts was getting at, particularly on the last line, there have been numerous difficulties in the attendance of Ministers and the Speaker has taken this up and made it clear.
The Chairperson then moved onto the electoral system, asking if anyone had anything to say on it.
Ms Smuts stated that what the Corder report does is to touch on the pitfall statements made in bold on page 6. The Committee should revisit its points as the law changes.
The Chairperson then asked the Members if they had an opportunity to read the report in their party caucuses.
Ms Smuts stated that their subgroup had gone through it, and she was addressing the points raised.
The Chairperson then moved onto Point 4 stating that oversight is the function of all members of Parliament, therefore as the technical drafting team they felt that oversight should not solely be for opposition members. They therefore should look at the loopholes and find what needs to be done on this issue.
The Chairperson then asked if they should pass this point.
It was agreed that they should.
The Chairperson then moved onto Chapter 3, which deals with the constitutional provisions, in particular Section 55(2), which captures the oversight imperative for the National Assembly. Did Members have anything to add?
Ms Smuts stated that it was right to include Section 55(2) but Section 85, on executive authority and Section 92 of the Constitution on constitutional duties of the Ministers should also be added as the Corder Report does this.
The Chairperson asked if any of the members had anything else to add. If not, they would move on to page 8 which looked at Section 238 and Section 231 of the Constitution and related to the ratification of international instruments.
Ms Smuts stated that great deal of time was devoted to argument, that Corder and Company had not done enough work. But they have terms of reference which get to the heart of the matter. These other provisions did not fill her and the fact that something became law is not strikingly an oversight element. The draft report devotes nearly two pages to the fact that Corder did not do anything but it leaves out Sections 85 and 92.
The Chairperson stated that they had been dealing with the report chapter by chapter this is why it seems like the comment that the Corder Report did not do much keeps arising.
Mr Jeffery stated that the technical team was not trying to invent the wheel but was trying to capture the discussions made at the meetings.
Mr Cassim stated that he would like it to be ruled that Ms Smuts moderates her comments, as she is in certain cases going against the tasks of the technical committee. If this Comittee stated that it was not in agreement with the Corder Report this had to be captured by the technical committee.
The Chairperson interjected by stating that earlier on she had raised the question as to whether Members had looked at the report and discussed it. This was in terms of the view that Ms Smuts was undermining the integrity of the technical team. She had asked Mr Lever to support her as he was part of the technical team. She agreed that Ms Smuts was undermining the task of the technical team.
Mr Jeffery stated that it had been agreed unanimously that certain provisions of the Constitution would be left out. He therefore suggested that the report be tabled and those Members with input on it put this in writing and it would be discussed.
Mr Lever seconded the motion, and whether a time frame could be put within which this had to be done.
The Chairperson asked how much time they would give each party to put down its proposal. Could it be ten days?
This was held to be acceptable. The reports would then be handed in within ten days.
The meeting was adjourned.
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