Meeting with Uganda Sessional Committee on Legal and Parliamentary Affairs

Home Affairs

20 March 2013
Chairperson: Ms M Maunye (ANC)
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Meeting Summary

The Committee met with members of the Ugandan Sessional Committee on Legal and Parliamentary Affairs. Members of the Sessional and Portfolio Committee shared experiences on their roles and functioning in their respective countries. It was explained that the visit by the Ugandan delegation was aimed at exchanging thoughts and experiences, in particular, on electoral matters. A brief outline of the political history in Uganda was given. It was noted that Uganda also had an independent commission to deal with elections. In addition, it had a Parliamentary Service Commission, which supported the administration of Parliament, and operated as an independent body. Some of its functions were outlined. This body was viable and independent, and had managed to have a positive effect on the administration of justice also. Some Members of this Committee commented that this seemed to be a useful option that could be considered for South Africa.

Members of the Ugandan delegation asked a number of questions, and explained how their own system worked, in relation to Presidential terms, what would be done t ensure that members toed the party line, whether there was anything to ensure that women and other marginalised groups were fairly represented in Parliament, and whether there were rules or checks or balances that safeguarded against the perception that office bearers would enjoy special privileges. Questions were asked on electoral offences and it was noted that in Uganda, an entire election could be declared null and void if one individual was found by a court to have committed an electoral offence. They asked about the role of the security organs during and after elections, how participation was assured for minority parties, how the media’s independence was safeguarded and fairness ensured during the campaign period and whether there were limits on campaign spending, and the time of campaigning. Members asked if there were eligibility requirements for election as an MP and it was noted that this was contentious in Uganda, where MPs must have A-levels, but local government representatives, who often handled matters of substantial importance, had no similar requirements. The role of the IEC in Presidential elections, the rationale for inclusion of a high court judge, and the role of Parliamentary Liaison Committees and electoral courts. Other questions related to tallying and announcing results, funding and expenditure of political parties and campaigns, party discipline, liaison between political parties and institutional electoral organs. Questions were also asked on how membership and leadership of Committees was chosen, whether Ministers would continue to serve as MPs, the number of private members’ bills tabled, and whether they tended to find support, whether shadow ministers were officially recognised and the statements that would be issued after the State of the Nation Address. Members of the Portfolio Committee asked what qualifications were required of MPs in Uganda, who chaired Sessional Committee meetings, and how that membership was decided upon. Members from both delegations appreciated the opportunity to exchange ideas, which they were confident would contribute to improved democracy for the people of Africa.
 

Meeting report

 

Chairperson’s opening remarks
The Chairperson welcomed the delegation from the Uganda Sessional Committee on Legal and Parliamentary Affairs.

The delegation from Uganda was introduced, comprising of Mr Steven Tashobya, Ms Florence Namayanja, Ms Grace Freedom Kwiyucwiny, Fox Odoi-Oywelowo, and Ms Sarah Ayesiga.

The Chairperson summarised that the Portfolio Committee on Home Affairs processed legislation on home affairs issues, and also had oversight over the relevant legislation, such as the Electoral Act (which regulated elections of the National Assembly, the provincial legislatures and municipal councils), legislation around registration of births and deaths, citizenship, and refugee status and movement. The Department of Home Affairs (DHA), Independent Electoral Commission (IEC), Government Printing Works and the Film and Publication Board reported to this Committee.

Uganda delegation presentation
Mr Steven Tashobya, heading the delegation, said that he would outline the reasons for the visit. He noted that in most African cultures it was customary, when strangers visited to seek a bride, to ask the visitors the reasons for the visit, and then to decide if they would enter into negotiations for the bride. He too would state the reasons for his visit. He had the honour of conveying the compliments of the Speaker of the Ugandan Parliament, and people of Uganda, to the Committee. He appreciated the time set aside for this discussion, despite the fact that the delegation had been unable to make an earlier meeting. This delegation had been received cordially in Johannesburg and Pretoria. The visit hoped to further the good relationship between the two parliaments, and he noted that Uganda was happy to receive members from South Africa.

He explained that in Uganda the committees were called “Sessional Committees” because their members served on the committees for one year. His particular committee oversaw the governance, justice law and order sector. It exercised oversight on behalf of parliament on justice and electoral affairs, the ombudsman, the judiciary, the Department of Public Prosecutions (DPP), the Uganda Human Rights Commission (UHRC), the Judicial Service Commission (JSC) and the Independent Electoral Commission (IEC). The Committee, through Parliament, would review policies and budgets and make recommendations, with the key interest being the review of processes undertaken in conduct of elections.

He gave a background setting the history of Uganda and describing how this related to the work of the Sessional Committee. Uganda had an eventful political history, and suffered various tumultuous regimes. The first general elections were held in 1962, and a coalition government was formed and received the instruments of independence. A republican constitution came into force in 1967. No elections were held during the reign of President Idi Amin, from 1971 to 1978, and when he was overthrown, a National Consultative Council was formed in 1979. This government was subsequently deposed in 1985. In 1988, a Constitutional Commission was established by the National Resistance Council (NRC), and this oversaw extensive reforms, which allowed for free and democratic practices to be developed. Viable political institutions, such as the IEC, were set-up. The IEC organised and conducted the first Presidential elections in the country in 1996.

The Sessional Committee reviewed local and international observer reports and embarked on a process of reform aimed at improving the subsequent elections. Uganda would be fully ready for the next elections in 2016 because of the satisfactory work of this committee. The European Union (EU), Ghana and South Africa were amongst those countries whose election processes were considered sound, and this was another important reason for this visit. South Africa was renowned for its Constitution and the independent institutions who ensured that elections were administered transparently.

He noted the similarities between the Ugandan and South African parliamentary committees, including the fact that membership was regarded as a shared responsibility, connecting Members of Parliament to their constituents rather than to the dominant or larger parties.

South African Portfolio Committee presentation on election processes
Mr A Gaum (ANC) made a presentation on the laws governing South Africa’s elections (see attached document for full details).

Mr Gaum noted that the Committee system was important to Parliament because the voting determined the outcome of Bills presented and debated. He also noted that municipal elections took place under a separate process although there was debate as to whether these should be combined with the larger national and provincial electoral process.

Mr M Mnqasela (DA) said the President and IEC would announce the election results. Although not specifically provided for in the Constitution, elections were usually always announced at a particular time. Elections had to take place within 90 days of the dissolution of Parliament. The date was usually announced after the President had made consultations with the IEC. After elections, the President was elected by the new National Assembly.

Mr Tashobya said Uganda had a Parliamentary Service Commission, which was akin to a civil service for the Parliament of Uganda, and which supported the administration of Parliament. He described some of the salient features. This Commission was created by statute, headed by the Speaker, and comprised members of the Executive branch of government, such as the Ugandan Minister for Finance, and backbenchers and commissions. Its main mandate was to recruit staff to parliament, thereafter determine terms of service. It determined Parliamentary remuneration. The Commission drew the budget for Parliament, and had it approved, and this was charged to the Consolidated Fund. The Commission was to operate as an independent body, although the Presidency and Executive were not overly fond of the newly-found independence. It was a viable and independent institution at present. It had influenced the administration of justice, because of the far reaching empowering of the judiciary. He further noted that other countries in the region, such as Kenya, also had an independent Parliamentary Commission, whose hallmark was financial autonomy from the Executive.

Mr Tashobya wanted to ask some questions on how the IEC managed elections, and what was done to ensure that it was independent and impartial.

The questions were as follows:

- What were the limits on the term of the Presidency and were these limits observed? Often in Africa, it was expected that these term limits would not be observed.
- What sanctions did Whips have to ensure that members toed the party line? He added that in Uganda some MPs disregarded the Whips, saying that they owed allegiance to their constituents and not the political party that brought them to the House.
- How did South Africa ensure that significant numbers of women were represented in Parliament? He observed that in Egypt the National Assembly comprised of 400 members, of whom only seven were women. He also asked if South Africa had representation for other marginalised groups – as in Uganda there was a constitutional provision that sought ample representation for women, youth, workers, the army and the disabled.
- Were there provisions for electoral offences, such as defamation, bribery, and fraud? In Uganda an election could be declared null and void if a court of law found an individual liable of electoral offences. The only exception would be if the Department of Public Prosecutions took up the criminal aspect of the legal responsibility. He added that candidates who lost their parliamentary seats would not be allowed to stand for re-elections. He asked whether this prevailed in South Africa.
- Were there any rules and procedures, or provisions in the law, that safeguarded against the impression being created that office bearers such as MPs and the President would enjoy certain advantages and privileges?
- What role did the security organs such as the police, the armed forces, and intelligence play before, during and after elections?
- How did Parliament ensure that minority parties were afforded participation, and what checks and balances existed to ensure the majority party did not dominate policies?
- What processes safeguarded public policy and media, and how was fairness ensured during the campaign period?
- Were there any limits on campaign spending? He noted that in Uganda there were no limits, and those who had huge finances usually had an edge over their competitors.
- Were there limits on the length of time for campaigns, and were there limits on when parties may start campaigning?  He observed that in some countries, parties would continue to campaign after the elections, and asked if there were assumptions against this.
- What were the credentials or eligibility requirements for election as an MP?
- How long did it take to pronounce election results?
- What was the rationale for having a judge of the High Court as a sitting member of the Electoral Commission?
- Why was the IEC was not responsible for Presidential elections, if this process was managed by the Chief Justice?
- How impartial were the Chairpersons of the Parliamentary Liaison Committees (PLCs), and who set the agenda for the PLCs, since they could download documents.
- What was the extent of the accessibility to the electoral courts?

Members responded to these questions.

Mr Gaum said that South Africa did not have a Parliamentary Service Commission, but he personally felt that this would be welcomed. He noted that the IEC was a viable, independent institution governed by its own legislation, and whose independence was guaranteed by the Constitution of South Africa. The Electoral Act provided remedies, through an Electoral Court, for any individuals with grievances about the elections. The public was generally satisfied with the IEC.

Mr Gaum noted that the status of political parties was important, but despite this there were internal disciplinary measures that could be used to sanction errant members. If members were found culpable, there were comprehensive procedural measures to regulate such members. Ultimately, an errant party member could lose his/her seat.

Mr Gaum noted that there were no specific rules compelling women’s representation but the ANC, as ruling party, had internal measures to ensure that there were mechanisms for 50% representation. There were also other Constitutional guarantees that ensured widespread representation of marginalised groups, since it was recognised that South Africa had a wide diversity, ethnically, racially, religiously and demographically.

Mr Gaum noted that the Electoral Act set out the electoral offences, but the benchmark generally was that elections should be fair, free and devoid of irregularities. He said any grievances would usually emanate from the district level, where efforts were made to adjudicate.

Mr Gaum noted that the position of the media was somewhat sensitive. To some, they were seen as the “unofficial arm of government”, hence the name “the fourth estate”. Freedom of the media was constitutionally guaranteed, and the media played an admirable role towards ensuring transparent, free and fair elections. During all elections to date, they had provided wide coverage and discussion on the elections to empower voters to make an informed choice. It was expected that such coverage would be responsible and would continue even after elections.

He said there had been talk of establishing a Media Tribunal to ensure that the media reported fairly. However, he also noted that the media already had an ombudsman and there was a Broadcasting Complaints Commission to which the public could complain. The media was self-regulatory but it had to be strengthened to ensure that it was diverse, lively, professional and free from censorship at all times, not just in campaign periods.

Mr Gaum noted that there were restrictions on campaigning. There was a prohibition on campaigning 24 hours before, and on the day of elections. All parties were governed by a compulsory code of conduct. There were no other restrictions on campaigning, campaign expenditures and the use of public resources for campaigning.

Mr Tashobya said that in Uganda campaign periods were declared in the Uganda gazette.

Mr Gaum noted that there were no set qualifications for Members of Parliament in South Africa, and so the country was considered a meritocracy.

Mr Gaum explained that the IEC would take a few days to declare results, because it took time to count, verify and announce the results of elections. The IEC added votes to its system in real time, reflecting results as they rolled in. A counting officer computed the results received from all voting stations. He then announced, to members of the public and agents in attendance, the results at a designated voting or counting station. The IEC would then be informed of the result. The IEC must, however, conclude and proclaim the final result of an election within seven days.

Mr Mnqasela said that, given the complex nature of South African history and current democracy, it was understood that South Africa had traversed a lot of ground, and it was to its credit that it had established a world class electoral system achieving a high level of satisfaction among locals and observers alike.

Mr Mnqasela said that it was necessary, for organisation of elections, that the IEC’s organs must contact political parties’ organisational structures – the candidates, agents and voluntary agents -  through Parliamentary Liaison Committees (PLCS). The role played by the IEC was critical in ensuring that the election process was dependable, but equally, the political parties had a critical responsibility also to ensure that elections were fair and free. They must create confidence in the system by playing by the rules and, in particular, by accepting the results.

Whilst there were some people who were opposed to the system, he pointed out that the PLCs really engaged the public with a high level of trust. The agenda was not cast in stone, and there were good arguments made for the regular meetings held at all levels. This engagement encouraged a better understanding and better processes amongst parties and the IEC organs. The IEC allowed PLCs to obtain agendas online, subsequent to agreement.

He said it was particularly important that when there were changes to be made to the agenda, there was also an opportunity provided to members to air any complaints, make suggestions and comments. This gave an opportunity to resolve situations before they turned into major issues. It also allowed for widening of the understanding among parties and electoral officials. Although the setting of the agenda was a concern, he said PLCs assisted in resolving situations in advance and developed a shared understanding amongst parties and electoral officials.

The issues of representation in PLCs was left to each of the parties to decide, so that there was no perception that government had interfered. It was particularly important, given South Africa’s past, and respecting the provisions of the Constitution, that no individual should feel marginalised.

Mr Mnqasela commented on the position of the opposition parties. The opposition was widely recognised but the right to differ within the party depended on the respective parties’ position. In 2010 some Bills had been agreed on, while others were not. Members sometimes turned around in Chambers against a certain position that had been agreed on, and that was quite exciting. He also noted that it was possible for private members to institute legislation, although this had recently caused some controversy.

Mr M de Freitas (DA) added that the Parliamentary Liaison Committees (PLCs) were established under the Electoral Act to maintain liaison and co-operation with parties. They worked hard to ensure that even the smallest parties felt included and part of the process. PLCs were vital to the functions and participation of all parties.

Mr De Freitas added to the remarks on election campaigns, saying that continued campaigning enabled parties to continue selling their policies and to allow people to see what the party was about. A party should campaign all the time, so that the voters knew their options when it came to elections. He also explained how the electoral system worked. He said the founding provisions were in the Constitution, which set out the values of universal suffrage, a national common voter’s roll, regular elections and a multi-party system of democratic government, and the assurance of accountability, responsiveness and openness in elections.

Mr De Freitas explained that South Africa followed a system of proportional representation, where the voting system was based on a political party’s list at the national and provincial level. It ensured that almost no vote could ever be lost. Registered political parties got a share of seats in Parliament, in direct proportion to the number of votes cast at elections. As a result, even small parties were represented in Parliament. It was noted that in the 1950s the National Party got more votes from other parties than its own. In the 1948 election the National Party then formed an alliance with the Afrikaner Party. The National Party had won with a majority of five seats and only 40% of the general electoral vote.

Mr De Freitas also explained that South Africa did not hold Presidential elections because the National Assembly would itself choose who became President from the party who gained the majority of seats in Parliament. The base from which a President is chosen was restricted to the 400 possible votes in the national parliament, so it was easily monitored. For every 0.25% of the vote, a party would get one seat.

Mr Mnqasela added that at election time, each party would name its President-Elect so that voters would essentially know who the chosen President would be when they placed their party votes. Elections were essentially “rubber-stamping” the Presidential choice, which had been made already by the party. He reiterated, however, that the President was officially elected by Parliament, and not directly by voters.

Ms T Gasebonwe (ANC) commented on the questions around marginalised persons Parliament had a Portfolio Committee for Women, Children and People with Disabilities, which addressed issues pertaining to those groups.

Ms D Mathebe (ANC) clarified the role of the member of the judiciary in the IEC. This person was to deal with interpretation of the law, and to ensure delivery of regular, free and fair elections at all levels of government. A judge was chosen because of his or her expertise in law, impartiality and the fact that this office was shielded from the political process, the ability to adjudicate and ensure that decisive guidance was given on legal issues.

Ms Mathebe said that, in order to ensure that each member toed the party line, political parties had codes of conduct and study groups that re-examined the party positions. In addition to those ways of maintaining party discipline, the Chief Whip’s Forum would meet and deliberate on issues. These structures ensured that public representatives were continually toeing the party line.

Ms Mathebe said that the media had a role to play in ensuring that the dignity of an individual or organisation was safeguarded, taking into consideration the need for transformation and South Africa’s complex history.

Ms P Petersen-Maduna (ANC) said party agents were selected by parties, must be registered by the IEC, and were trained. A party agent must be a South African citizen, and a candidate for an election. He or she must also be issued with an appointment from a party and a notice given to the Presiding Officer.

Mr Tashobya then asked for clarification on the following matters:
- How did members obtain membership in the committees, and how the leadership of Committee was determined?
- What was the time-frame within which election results must be announced?
- What views were held on MPs serving as Ministers, and on their losing Parliamentary seats?
- How many private members’ bills were tabled in each year, and how easy was it to get support for such bills?
- Hw many bills were passed on average, annually?
- Did shadow ministers exist in South Africa, would they attend Committee meetings and make reports there, and what would happen in plenary sessions?
- What policy statements were made after the State of the Nation address, and did parties also make their own responses.

Ms H Makhuba (IFP) said that elections results must be announced within seven days, but could be given earlier.

She added that each political party would decide for itself which of its members must sit on which portfolio committee. The ANC chaired all but one of the committees, and chairpersons would be elected by the members, although the majority party caucus at the National Executive Committee (NEC) decided upon those whom it thought should sit as chairpersons, in the committees. All political parties were represented on the committees.

Mr Tashobya said that in Uganda the MPs and the leaders of the committees were selected by their parties, in the caucus. In fact, it had become more apparent because the NEC was the deciding body. There was not much choice, because the House formally looked at these results. The party could withdraw one candidate and designate another person.

Mr Gaum said that campaign expenditure was not restricted at the moment, but this Committee and certain members of the public were of the opinion that there were good reasons to restrict it. He said there were concerns that bigger parties were more able to obtain more funding, to the disadvantage of other parties. He added that political party funding from the state depended on the proportion of representation the party had. There was a debate that there should be more transparency on donations to parties, but this was countered by the fear that the donors may refrain from donating if that were to be done. The Institute for Democracy in South Africa (IDASA) was leading the campaign against not declaring the source of funding to parties.

Mr Gaum thought that there was a need for a clearer distinction on separation of powers. Membership of the executive and legislature was presently blurred. South Africa had inherited the Westminster system, and there were obvious overlaps between the executive and the legislature. The President of South Africa usually resigned his Parliamentary seat once he was elected President. It was open to question whether this requirement and practice should apply also to other Ministers.

Mr Gaum responded to the questions on numbers of Bills passed, saying that he was not sure of the exact number in each year. Last year, two Bills were passed. There were not many private members’ bills, although this was increasing. He noted that an MP had taken Parliament to court on the preceding provisions, and the system had recently changed.

Mr Gaum responded that Shadow Minister were not specifically provided for in the Constitution, but they were referred to as “spokespersons” for their party, and were considered to represent their party’s interests on the committees. They usually, as members of the committee, articulated their party’s position. They were few in number, and their input might be isolated. Usually, the ruling party speakers got more time, whilst smaller parties were given less time, to articulate their positions. There was no special status given to spokespersons but they did get time to contribute to motions. He explained that the leader of the “official opposition” was the leader of the party with the second highest representation in Parliament, after the ruling party. The other fringe or small parties were not part of the “official opposition.”

Mr Gaum explained that when the State of the Nation Address had been delivered, there was a pecking order followed for other contributions. After the President’s address, an ANC speaker contributed, followed by the Leader of Opposition, and then other parties.

Mr Gaum noted that recently, there were discussions on whether a motion of no confidence should be accepted. At the time, there was a back and forth process between Parliament and the court. The court advised that any decisions had to be made in line with the Constitution, because it was the point of reference for Parliament.

Mr Gaum wanted to comment on the remarks on nullification of election and resolving disputes. Elections must be free and fair, and the IEC was the final arbiter on that point. IEC would decide if there were irregularities in districts. There had to be major abnormalities or misgivings before the Court would declare an entire election unfair. The IEC members and its officers were authorised to determine any objections, appeals and code of conduct disputes through conciliation. In this sense, the Electoral Court would act as the final court of appeal against IEC decisions. Where there were election petitions, they would be heard by the courts, but parties must submit any grievances within 48 hours of the proclamation of results.

Ms Makhuba answered the question on the perception of privileges and advantages attaching to the President, a Minister or MP. There was an observation was that during elections, incumbents might use state resources to the detriment of their competitors. This could hinder the levelling of the political playing field, and frequently fundamentally changed the balance in favour of ruling parties, and to the disadvantage of opposition parties. She said that during elections, the President and Ministers were part of the campaign as other members were, but there were many checks and balances, both formal and informal, to prevent government funds being used instead of political party funding.

Ms Makhuba enquired if any qualifications were required of MPs in Uganda.

Mr Mnqasela asked who chaired committee meetings, and where the membership was drawn from, and how the composition of committees was determined.

Mr Tashobya responded that committees were set up on a proportional basis, so the bigger parties had more representation. The Whips would send out circulars to members on what membership was needed. Some of the committees, such as social services, health, and infrastructure were popular and attracted enormous responses from members. Ultimately, the Chief Whip made the decisions on which members were assigned to the committees, but this was also influenced by the responses for inclusion in those committees. Leaders of committees were designated by the party leadership. The party had power to withdraw members. Generally, committees were fairly influential because they participated in budgets, work plans, travel, workshops, meetings and other strategic matters.

The Sessional Committees were headed by the members of the ruling party in government, but in theory this could be given over to other minority parties. Accountability committees, like the Public Accounts Committee, Commissions and State Enterprises were led by the opposition.

Mr Tashobya said that the procedure for qualification of MPs in Uganda was controversial. There were also debates as to whether qualifications determined whether a person would be a good legislator. Essentially, MPs had to have A-level certificates or equivalents. Some members were known to present false certificates or qualifications that that were not comparable. In fact, many of the elections petitions were premised on whether an elected official did have the required qualifications. At local government level, there is no need to have any qualifications, but this was particularly contentious because councillors and local government leaders dealt with very challenging issues.

Ms Makhuba delivered the vote of thanks on behalf of the Committee, noting the Committee’s appreciation of the visit by the delegation from Uganda. It would help the Committee in learning some vital lessons, and improve some aspects of Parliament governance in South Africa.   

Mr S Tashobya expressed gratitude to the Committee and the people of the Republic of South Africa for their welcome, and for assisting to set up the series of meetings in Pretoria, Johannesburg and Cape Town. He agreed that there had been productive deliberations, that the Ugandan delegation had also gained knowledge and was confident that this engagement would improve democracy for all the people of Africa.

The meeting was adjourned.


           

 

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