Review of Assembly Rules: motion of no confidence & flagged issues

Meeting report

The Chairperson welcomed the Members of the Task Team and other participants to the meeting. The hope was that the Team would be through with its work by the end of November 2013 and this hope was now a reality. The focus of the day’s meeting was simply to revisit flagged areas which were discussed but no clear decision was arrived at. These sections, issues and particular rules were going to be visited one by one. It was important to understand that these rules had to stand the test of time and were not being written for any political party. The objective was to draft rules which would enhance the image of Parliament. The prestige of Parliament was a serious matter. It was therefore not about the interests of any political party. He appreciated the contributions made by the Task Team and all other Members of Parliament and officials.

Motions of No Confidence
The Chairperson said he was under the impression that the motion of no confidence had been dealt with but the Team wanted to still have a discussion on it. The Chairperson called on the Secretary to take the Task Team through the proposals which had been drafted for Motions of No Confidence.

Mr Perran Hahndiek explained that the draft which had been circulated to the Members was produced by Parliament’s Legal Services after the discussions at the previous meeting of the Task Team. He suggested that Legal Services were in the best position to brief the Task Team on the document.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, explained that the proposed rule amendment was informed by the discussions from the previous week.
• In sub-rule 1, a Member may propose a motion of no confidence in the Cabinet or the President in terms of section 102 of the Constitution by submitting the motion, which must state the grounds for the motion, to the Speaker.
• In sub-rule 2, the National Assembly Programme Committee must schedule the motion within a reasonable time after consultation with the Leader of Government Business and the Chief Whips’ Forum; and on a day identified for the debates of motions. No provision was made for the instance where the National Assembly Programme Committee could not agree. It could be alternatively drafted to read “...must schedule the motion for debate in the House within a reasonable time...” or “...must schedule the motion for consideration in the House within a reasonable time...”. In this regard, it was recommended that the Chief Whip of the majority party not specifically be included, but rather be consulted as part of the Chief Whips’ Forum.
• Sub-rule 3 provided that when it was scheduled, consideration of the motion of no confidence by the House must take place within a reasonable time. Ms Van der Merwe asked what the difference was between the scheduling and the consideration. Did scheduling not result in consideration anyway?
• In sub-rule 4, if a motion of no confidence could not reasonably be scheduled by the last sitting day of an annual session, it must be scheduled for consideration as soon as possible in the next annual session as if notice had been given on the first sitting day of that session.
• Sub-rule 5 provided that the debate on the motion of no confidence shall not exceed the time allocated for it by the National Assembly Programme Committee, after consultation with the Chief Whip of the Majority Party as chairperson of the Chief Whip’s Forum.

Mr Kasper Hahndiek, a consultant and Former Secretary to the National Assembly, said that on the issue of reasonable timing, the Task Team had discussed this and it was agreed that the circumstances at any time could differ and reasonableness was a consideration of all the issues on the table at the time. He suggested that sub-rule 2 could be reworded to accurately capture the judgment of the court. He proposed that sub-rule 2 could be drafted as follows: “The Programme Committee must schedule a motion for debate and decision, within a reasonable time, taking into account the programme of the Assembly and according the motion due priority over other motions and business of the House”. This proposal was in accordance with the judgment on Motions of No Confidence.

The Chairperson asked if the Members agreed to the proposal.

Mr N Booi (ANC) said the proposal made by Mr K Hahndiek was very well presented.

Mr Mike Ellis, a Consultant and Former Member of Parliament, said that the essence of what was captured by the proposal was the judgment. The issue of the priority of the motion was well outlined.

Ms J Kilian (COPE) said the issue of prioritisation was clearly captured in the ruling by the court and the wording by Mr Hahndiek had captured it very well.
On the issue of the composition of the Programming Committee, it was not good for the majority to want to be in total control of the NAPC which was the forum to prioritise a motion of no confidence.

The Chairperson said it was important to bear in mind that proposals had been made about the composition of the programming committee. The request had been made and it had been accepted that all parties in parliament had to attend the programming committee. It was not right that Parliament could just redesign how parties could be represented. Every party was in parliament on its own and must be able to attend the Programme Committee on its own. The Programme Committee was a critical area. Even one-man parties had the right to attend the programming committee.

Mr Booi said that it was good that a motion of no confidence  took priority over other issues. Given that such a debate had to be scheduled when any Member of Parliament tabled a motion of no confidence, it meant that Parliament might have to be specially convened for that particular debate. The scheduling of the debate had to take priority as the motion had been raised due to a particular crisis in the country which had to be addressed. It was important for the Task Team to give enough guidance so that the final decision taken would not just be informed by the court ruling but by the actual objectivity of Members.

The Chairperson said it would only be in extreme and extraordinary circumstances where Parliament was reconvened to discuss a motion of no confidence tabled by a Member. His view was that there was no need to complicate the matter because such complications were going to cause problems for party caucuses. The rule had to be drafted just like any other rule as there was nothing unusual about a motion of no confidence . The rule should be phrased in such a way to eliminate every ambiguity. It should be in line with the court ruling having taken into account Parliament's right to design its own operational system. The court ruling did not forbid Parliament from setting its own internal rules. This issue did not have to break up the working of Parliament.

Mr K Hahndiek explained that when the Speaker received a motion of no confidence he had to convene the Programme Committee which was going to work on the scheduling within a reasonable time. This was the normal process according to the rules.

Ms Kilian asked if how notice was given had been addressed. The rule on motions of no confidence was not to be turned into the big ugly rule but it was a compulsory provision.

The Chairperson said that it was important not to design the rule for particular political parties and situations but for every Member and every applicable situation. He suggested that Parliamentary Legal Services should draft the rule to capture the essence and spirit of the court ruling and the ideas and sentiments expressed in the meeting.

Mr P Hahndiek added that it was important to note that the wording of the notice must comply with rules of the House. There was a rule which authorized the Speaker to amend motions which were inconsistent with the rules of the House and his suggestion was that that rule should remain in place.

The Chairperson said the Task Team agreed on that issue.

The Chairperson than called on the Task Team to revisit all flagged matters. He said many of the items were merely drafting concerns where the appropriate wording had to be finalised. Most of the complex matters dealing with the content and politics of the Rules had already been dealt with. This did not mean that drafting was a trivial issue as it could cause problems. He suggested they look at Questions to the President:

Questions to the President.
Mr K Hahndiek said there was a suggestion that the draft rule on Questions to the President should be revisited and with that in mind, he had put an alternative proposal before the Task Team.

The Chairperson asked Mr K Hahndiek to take the Task Team through the proposal.

Mr K Hahndiek explained that he had identified Questions to the President in Person as a separate issue and that was going to be done four times a year. The draft rule was the same as the current provision except that it made the point that questions must relate to the responsibilities of the President as outlined in Section 85(2) which captured his overall executive responsibilities. This was to guide in the types of questions which may or may not be put to the President. The sequence of parties was going to remain as in the current rule.

On the other part of the proposal, he had identified Questions to the Presidency and that was going to take the place of the current Questions to the Deputy President. That was to be scheduled once a month in the course of the annual programme of the National Assembly and excluding the months in which the President answers questions. This meant that there was going to be Questions to the President and/or the Presidency every month. These were going to be scheduled by the Programme Committee in consultation with the Leader of Government Business. Questions to the Presidency would be replied to by the Deputy President unless the President decides to reply in person to one or more of these questions.

Mr K Hahndiek then dealt with timing and number of questions.

On the issue of Questions to the Deputy President, he suggested that specific questions should be addressed to particular Ministers in the relevant clusters.

These were the proposals which he had for the Task Team.

Mr Booi said that he did not have a problem with the proposal. However, he hoped that Members would not abuse the process for Questions to the President and restrict themselves to questions about the executive functions of the President only. How practical was the rotation of responses to Questions to the Presidency between the President and the Deputy President?

Mr Booi did not think the provisions for Questions to the President dealt with the process for an Acting President. The proposal had to cover that aspect. He gave the example of when the leader of the IFP was Acting President, he had deployed the defence force to Lesotho and nothing could be done about it. It was therefore important to cover this aspect in the rules.

Ms Kilian said that the Acting President was dealt with in Section 90(2) of the Constitution. She noted there had been times when it was difficult to schedule Questions for the President because he was out of the country. That should however not be used as an excuse because if the President was out of the country, it was clear that the Acting President had to be in the House. Parliament could not turn around its programme because the President was out of the country.  

Ms Sybil Seaton, a former Member of Parliament and consultant, said she had initially understood that the objective was to bring in the Deputy President a little more frequently but that was not the idea she was getting from Mr Hahndiek’s proposal.  She had understood that even though the President was going to be answering questions during a particular month, the Deputy President was still going to be answering questions in that month.

Ms Kilian said she was comfortable with the fact that there was going to be more of the Presidency in Parliament. This was going to improve Parliament's oversight of the President. It was a good thing that the Office of the President was going to have a special slot which was not shared with any other executive officials.

Mr P Hahndiek asked if the proposed process would reduce the extent of questions to other Ministers.

Mr K Hahndiek replied that the idea was that Questions to Ministers would be once a week on Wednesdays throughout the year. The Questions to the President would not take the place of or directly infringe on Questions to Ministers. However, Questions to the President were going to be given priority over any other business on the day but there could be flexibility on the issue. The Programme Committee could decide on issues of precedence.

On the practicality of the rotating of responses between the President and the Deputy President, the Programme Committee at the beginning of the year was going to discuss this with the Leader of Government Business to identify the days. This was also open to some extent of flexibility. On the Acting President, his understanding was that if a day had been chosen for Questions to the President and it turned out that the President was absent, there were two options available. The first was to have the Programme Committee delay that session to wait for the President or the second option was the Acting President could respond to the questions. He was not sure if Mr Booi wanted the Acting President to be mentioned in the rules.

Mr Booi said he understood what Mr Hahndiek was saying but it was important for the Rules to reaffirm what was in the Constitution. It was good for the rules to be pre-emptive and avoid any ambiguous situation.

Mr Ellis expressed concern at the fact that when the President answered questions, the Deputy President did not have to answer any questions. This meant that the President would answer questions four times while the Presidency would answer questions 5 times. The idea was a good one but was it not a bad idea to let the Presidency be less involved in responding to questions.

The Chairperson said the best route to take was to retain what was already in the rules. The point which was to be addressed was that both the President and the Deputy President were part of the Presidency. The proposal was to elaborate more on the rule; however, much time should not be wasted on this issue.

Mr K Hahndiek asked what the option preferred by the Task Team was.

The Chairperson said it was good to take a more or less conservative approach. The existing rule had to be clarified and left at that. The second option was to take the proposal of Mr Hahndiek. Both options could be written in the proposed rules so that parties could assist the Rules Committee in making a final decision. 

The Chairperson asked if there was anything else which the Members though was very important and had to be included in the rules. There was no comment from the Task Team.

The Chairperson asked Mr K Hahndiek to proceed with the other flagged matters.

Definitions
Mr K Hahndiek referred them to the definition of organ of state which just needed more clarity.

Mr Booi said the debate on this definition had been going on for a long time and such an issue could not be immediately resolved by the Rules.

The Chairperson agreed with Mr Booi. He added he was concerned that the discussion on each flagged matter was taking too long. He asked Mr K Hahndeik to proceed to the next flagged matter.

Quorum
Mr K Hahndiek said the Speaker might require the electronic system to be used to establish the number of Members present and Members would merely be required to press the relevant button on the system.

Mr Ellis said that the Speaker had announced that from next year there was going to be a whole new system. He asked if the voting system was going to be the same as the current one.

Mr Hahndiek said it had happened that on certain occasions Members were present in the National Assembly but did not record their presence as some Members had failed to press the button. So if a Member was in the chamber but failed to press the button then that Member was acting in conflict with the rules.

The Chairperson said this was a straightforward issue and asked if Members agreed to that. There was confirmation from the Members.

Ms Kilian commented that such a system had to be monitored closely as some Members could be present and just intentionally choose to not indicate their presence so that a quorum would not be reached. It was not strange to see Members manipulating the system to achieve their political interests.

Ayes and Noes
Mr K Hahndiek said the next issue was with regards to calling for “ayes” and “noes” in a voting division. The Task Team had had this discussion and at the time, Mr John Jeffery was strongly against the calling for ayes and noes. There were implications for this as the ayes and noes process enabled the parties that were going to vote against simply to request that their opposition be recorded. If the ayes and noes were not called, the proposal was that the presiding officer must somehow rule whether the voting division was required. This was going to be problematic in a situation where a motion was before the House and the presiding officer had to look at the matter and ask if the parties wanted a voting divsion. This was a very complex thing to do. So the ayes and noes enabled the presiding officer to, at all times, get clarity on the nature and extent of the opposition. It also allowed an opportunity for objections to be recorded and it left the initiative upto a Member to demand a division. Voting divisions on issues should be governed by the Members and not by the presiding officer. He was not sure what the situation was in Kenya as that was one country where they did not use ayes and noes. Many other Parliaments, including the USA, used ayes and noes.

The Chairperson said it was an easy thing to decide as the use of “yes” or “no” could not be eliminated from parliamentary process. The principle was not a big issue.

Mr Ellis said that it was good to keep it because it gave the Speaker or the presiding officer an opportunity to assess the extent of the opposition on an issue. There was no harm in keeping it.

The Task Team confirmed that there was no harm in keeping it.

Withdrawal of a motion
Mr Hahndiek said the withdrawal of a request for discussion was dealt with in Rule 104 and the rule provided that if the Speaker was satisfied that a matter was urgent enough then a special sitting of the House could be convened to discuss the matter. In terms of Rule 104, if a Member wanted to withdraw such a discussion, a special meeting of the House may have been convened already and Members may have travelled specially for the sitting, he was not sure if it was appropriate for a Member at such a late stage to withdraw the request. Perhaps the Member had to accept that at a certain stage, the debate was going to happen.

Ms Kilian suggested that once the Speaker had convened the special sitting of the House, there should no longer be any provision for the Member to withdraw the request for discussion.

All the Members agreed with Ms Kilian.

The Chairperson agreed with the Members. He asked if there were any further issues and there were none from either the Members or the staff. He then thanked the Members and staff for their participation and contribution and said that the final draft from the Legal Services would be forwarded to the Rules Sub-Committee. The Task Team had practically completed its mandate and was not going to be meeting again.

The meeting was adjourned.