|18 Oct 2017||Oversight of Presidency; Unanswered Questions by Executive, Mini-Plenaries; Pre-1994 Legislation|
|06 Oct 2017||System to Monitor Unanswered Questions; Guidelines for Mini-Plenaries|
In a virtual meeting, attended only by the ANC and the DA, the Subcommittee considered a proposal for a mechanism to monitor delayed replies to parliamentary questions asked of the executive.
The Secretary of the National Assembly and the National Assembly Questions Office reported that Rule 136 required the Speaker, in consultation with the Rules Committee, to establish a system to monitor, and report regularly to the House on, unanswered questions. They provided an overview of past attempts to implement such a system – a prior mechanism had been judged ineffective by an independent panel assessment of Parliament, and a proposal to establish a dedicated subcommittee had lapsed in the last Parliament.
The Questions Office reported that the current Speaker proposed the following mechanism:
- The Speaker would write quarterly to affected ministers, requesting reasons for their non-compliance, and to the Leader of Government Business (LGB), informing him of ministers’ non-compliance;
- The Rules Committee would receive a report on ministers’ responses to the Speaker, which would also be published in the Announcements, Tablings and Committee Reports;
- In the event of continued non-compliance, the Speaker would be able to issue a reprimand in a plenary sitting; and
- As a last resort, the Speaker would be able to escalate the matter through a formal complaint to the President.
The parties present agreed that the issue was crucial to strengthening executive accountability, and that it should be handled without partisanship.
The ANC proposed two amendments to the Speaker’s proposal. First, it proposed that an interaction should be required between the Deputy Speaker and the LGB. Second, the ANC proposed that the last resort should be a formal complaint to the LGB, not to the President. Although the Secretary emphasised that ministers were ultimately accountable to the President, who appointed them, the ANC held that the President delegated the relevant authority to the LGB. The DA disagreed with this ANC proposal, pointing out that the LGB would already be informed of unanswered questions at the beginning of the process, meaning that a formal complaint to him would not properly constitute an escalation.
The DA proposed that the wording of the proposal should be amended, to make it obligatory, rather than optional, for the Speaker to reprimand continued non-compliance. The ANC said it would not be opposed to making this amendment.
The DA expressed concern that the proposal did not include measures to deal with ministers whose answers were evasive or of poor quality. This constituted a second, subtler form of non-compliance, alongside blatantly unanswered questions. Members discussed examples – focusing on ministers who replied only that the requested information was not available, or who replied erroneously that the information had been published in annual reports – and all agreed that such conduct was problematic and even egregious. The ANC asked how the quality of ministers’ responses could be assessed objectively, and the DA suggested that the Speaker could make her own evaluation and write to the affected ministers if she agreed that their answers were inadequate.
Members debated with each other and with the Questions Office about the proper scope of questions to the national executive. Could Members of Parliament ask national departments for information about the provinces and municipalities over which they held concurrent powers? Should the Questions Office forbid such questions, or redirect them to the provincial and local levels? ANC Members, holding that the proposed mechanism should not act as a substitute for existing processes, also argued for measures to strengthen the office of the LGB and to encourage ministerial staff to comply with deadlines.
The Subcommittee would report on its deliberations to the Rules Committee, which would meet next week to take a decision. The Speaker’s proposal would become applicable, with or without amendments, if the Rules Committee endorsed it.
The Chairperson said that the meeting, held some weeks after the Subcommittee’s last meeting, was taking place under “a dark cloud.” Many Members of Parliament (MPs) had died of COVID-19-related illness, including, in recent weeks, two ANC members and one AIC member. Last weekend, a Member of the Subcommittee, Mr M Nxumalo (IFP), had tragically died in a car accident. He had been Deputy Chief Whip of the IFP and a young man.
The Chairperson led the Subcommittee in observing a moment of silence in memory of the deceased.
Apologies and adoption of agenda
Mr Perran Hahndiek, Procedural Advisor, Parliament, said that Mr N Singh (IFP) had communicated apologies on behalf of the IFP. The IFP would not attend the meeting because, as the Chairperson had said, one of its members had died.
Mr Hahndiek said that Dr Gerhardus Koornhof (ANC) had also communicated an apology. Dr Koornhof wished to clarify that he was not a formal member of the Committee, although, as Parliamentary Counsellor, he was attentive to Committee discussions about issues involving the executive branch.
The Chairperson said that she had noticed that only two parties were present.
The Chairperson said that the Subcommittee was meeting in preparation for the Rules Committee meeting. At the Rules Committee meeting next week, matters covered in today’s meeting would be processed, and some matters would probably be referred to the Subcommittee. She would like to follow the agenda as stipulated.
The agenda was adopted.
Consideration of draft minutes of 19 February 2021
The Subcommittee considered its draft minutes dated 19 February 2021.
Mr Q Dyantyi (ANC) said that the Subcommittee might face a problem in adopting the minutes. Neither he nor Mr G Hill-Lewis (DA) had been present at the 19 February meeting. Mr Hill-Lewis had sent an apology, and he himself had been absent for obvious reasons – in that meeting, as the Subcommittee had deliberated on one of his own rulings. So Mr H Papo (ANC) might have to move for the adoption of the minutes.
The Chairperson said that she had been present at the 19 February meeting, and asked Mr Papo to move for adoption.
Mr Papo did not appear to be present on the platform.
The Chairperson said that the minutes would have to be deferred to a later meeting.
Mr Masibulele Xaso, Secretary to the National Assembly (NA), agreed that the Subcommittee noted the minutes and would adopt them at its next meeting.
Consideration of mechanism for monitoring delayed replies to questions
Background: Rule 136 and history of mechanisms for monitoring delayed replies
To provide background on the matter, Mr Xaso read aloud NA Rule 136. Rule 136(1) required the Speaker to “in consultation with the Rules Committee establish a system to monitor and report regularly to the House on questions that have been endorsed as unanswered on the Question Paper in terms of Rules 143(2), 144(5) and 146(3).” Rule 136(2) provided that the Leader of Government Business (LGB) had to be “informed of any steps taken in respect of any member of the executive in giving effect to the monitoring of replies and the application of Rules 143 to 146.” Mr Xaso asked Members to note Rule 136(2), which he thought critical.
Mr Xaso said that the Rules Committee of the Fifth Parliament had adopted a mechanism of the kind mentioned in Rule 136. However, the proposal had lapsed, because it had not been considered by the House. The Rules Committee of the Sixth Parliament had decided that the matter should be reconsidered, which was why Parliament was now present to brief the Subcommittee on a mechanism that it had proposed to the Speaker.
Mr Michael Plaatjies, Head of the NA Questions Office, Parliament, led the rest of the briefing. He said that the issue of unanswered questions was longstanding, and had probably arisen as early as 1994. However, this was a problem that all parliaments faced. All parliaments had to deal with executive accountability.
Mr Plaatjies said that in 2003, the Rules Committee had resolved to establish a mechanism to deal with unanswered questions. Under that mechanism, the Speaker had received a report on unanswered questions two weeks before the end of each quarter. The Speaker then wrote to the relevant ministers. Copies of those letters were also sent to the LGB, to the MPs who had asked the questions, and to the committees which oversaw the portfolios of the relevant ministers. The information was also published in the Announcements, Tablings and Committee Reports (ATC). The mechanism had applied to both written and oral questions.
However, an independent panel assessment of Parliament had found that the mechanism was not effective. The panel had urged Parliament to recognise that unanswered or poorly answered questions undermined the effectiveness and dignity of Parliament. In 2017, the Subcommittee of the Fifth Parliament had established NA Rule 136 in response to the panel’s recommendations. The Subcommittee had acknowledged the panel’s conclusion that the existing mechanism did not work and required review.
At that time, the establishment of a new subcommittee had been envisaged. The subcommittee would be chaired by the Deputy Speaker or one of the House Chairpersons, and the Rules Committee would determine its composition – that is, the parties represented and the number of members. The subcommittee would also include the Parliamentary Counsellor to the Deputy President. The corresponding ATC entry erroneously referred to the Parliamentary Counsellor to the LGB, but no such position existed in terms of the rules. The subcommittee would receive quarterly reports on unanswered questions from the Speaker, and it would engage the relevant ministers, interrogating their reasons for failing to reply to the questions. It would report quarterly to the Rules Committee on its findings and recommendations, in order to address challenges and concerns around unanswered questions and unaccountability. The subcommittee would also have the powers and responsibilities provided for by NA Rule 172(1).
However, that report of the Fifth Parliament had never been considered and the matter had lapsed. The matter had been raised again at the beginning of 2021, and the Speaker had agreed in the Programme Committee to refer the matter, which had ultimately reached this Subcommittee. The Speaker had proposed a new mechanism, which had been sent to Members for their consideration, and which would be presented to the Rules Committee in its meeting next week.
The Chairperson suggested that Parliament should brief the Subcommittee on the new proposed mechanism before the Subcommittee deliberated.
Mr Dyantyi agreed.
Proposed mechanism for monitoring delayed replies
Mr Plaatjies said that Rule 136 required that any mechanism had to be established by the Speaker, in consultation with the Rules Committee. The following mechanism was being implemented by the Speaker and was proposed for the considerations of the Rules Committee:
(1) The Speaker would write to the affected Cabinet members on a quarterly basis regarding unanswered questions, requesting reasons for their failure to meet the deadlines of Rule 143(1) or Rule 145(5)(a);
(2) The Speaker would write to the LGB on a quarterly basis, informing that office of the outstanding replies and the correspondence sent to affected ministers;
(3) A report on ministers’ responses regarding unanswered questions would be submitted to the Rules Committee for its information and published in the ATC for the information of all MPs;
(4) In the event of continuous non-compliance or lack of improvement by ministers, the Speaker could issue a reprimand in the plenary sitting of the NA, to be published fully in the minutes of the proceedings; and
(5) As a last resort, the Speaker could escalate the matter through a formal complaint directed to the President and copying the LGB.
Should the Subcommittee and then the Rules Committee agree to this mechanism, with or without adjustments, it would become applicable and the LGB would be informed.
Mr Plaatjies added that Rule 143 required that, when there was not enough time allotted for ministers to deal with all oral questions on a given day, the outstanding replies had to be submitted in writing to the Speaker on the same day for inclusion in the Official Report. However, ministers did not always comply with this rule. The problem was often with ministerial staff – particularly parliamentary liaison offices – who did not do their jobs and who failed to submit the replies. In such a situation, the outstanding questions were regarded and endorsed as unanswered – and sometimes they remained unanswered for a very long time.
Mr Xaso said that point (1) of the new mechanism differed from the approach taken in the recent past, because the Speaker would require ministers to provide reasons for their non-compliance. Previously, the Speaker had written to ministers to ask them to respond to outstanding questions, and had informed the LGB of outstanding questions, but ministers had not been asked to explain their non-compliance. Point (2) involved the LGB in the mechanism, because the NA rules required that the Speaker had to inform the LGB of the process being followed. Points (3) and (4) also contained innovations. Under (3), the ATC would identify Ministers who had failed to respond to questions, informing all MPs and the public. Under (4), the Speaker would have the option to consider a reprimand, which, if issued, would be recorded in the minutes of the NA. Finally, on point (5), which allowed a formal complaint to be sent to the President, the key consideration was the accountability of ministers. The LGB was responsible for communication between Parliament and the executive, but ministers ultimately accounted to the President, who appointed them.
Mr Xaso said that the Speaker had already implemented point (1) of the proposal, because the measure of asking Ministers for their reasons was “harmless.” The Rules Committee would receive a report to that effect.
The Chairperson asked what mechanism Parliament was currently using to track unanswered questions. She understood that the Speaker was implementing point (1), but what had been used before that?
Mr Plaatjies replied that upon every Cabinet sitting, the Questions Office submitted a report to the LGB on all outstanding and unanswered questions. This had been implemented alongside the measure whereby the Speaker wrote to the LGB about outstanding questions. However, the regular reports to the LGB had “fallen by the wayside” at some point. That had happened as the Fifth Parliament had begun to contemplate a new mechanism, because it had become clear that regular reporting to the LGB, though it assisted somewhat, was not very productive, since questions remained unanswered. It was a “perennial problem” that had to be attended to eventually.
Mr Dyantyi welcomed the report and the proposal from the Speaker, who had in fact just been appointed Minister of Defence and Military Veterans. He congratulated her on the appointment. He would make some contributions on behalf of the ANC. The ANC thought that a mechanism for tracking outstanding questions was “long overdue.” It understood why implementation had been delayed in the past, and it hoped that the Subcommittee and Committee would overcome any such obstacles. Both written and oral questions were a critical form of oversight and had to be taken seriously. This had to be treated as a non-partisan matter. All MPs had a duty to hold the executive to account, and any instances of non-compliance should always “raise eyebrows.” The ANC thought that this proposal could constitute a “turning point,” heralding effective oversight and mutual respect between the executive and Parliament.
Mr Dyantyi said that when confronting a problem, it was important first to define the problem properly. In medicine, a problem was diagnosed so that it could be remedied. This linked to the Chairperson’s question about existing mechanisms. The briefing had provided some background, but it would have been improved by an explication of “the baseline problem.” He hoped that Parliament would provide such an explication in the Rules Committee. What was the nature of the non-compliance that the mechanism sought to address? He did not have a sense of that. He believed that there was non-compliance – this meeting would not be taking place otherwise – but it was important to understand what it was that the Subcommittee was trying to correct through the proposed changes. For example, how many outstanding replies were there, and from which ministers? It was important to share that information, not to “point fingers” at ministers but to illustrate the problem.
Mr Dyantyi said that the ANC supported the proposed mechanism, but with two amendments. First, though Mr Xaso had explained the rationale for point (5) of the proposal, the ANC was unconvinced by his explanation. It preferred to amend point (5) to allow the Speaker to escalate the matter through a formal complaint directed to the LGB, not directed to the President. To involve the President in the process was to assume that the LGB had exhausted all other measures without success. There was no reason to automatically go over the LGB’s head to the President. Mr Xaso’s rationale – that the President appointed ministers – was “inconsistent” with the rest of the process. Although the LGB did not appoint ministers, he had responsibility for the issue at the heart of the mechanism. That responsibility could not simply be revoked, unless there was a “concrete argument” that the LGB had been unable to fulfil it.
Mr Dyantyi said that the ANC also wanted to add an additional point (6) to the proposal. Point (6) should be framed to require an interaction between the LGB and the deputy presiding officer – in this case, the Deputy Speaker. Of course, in this context, the mechanism pertained to the NA, not the National Council of Provinces (NCOP). However, there should be symmetrical interactions between the LGB and the Deputy Chairperson of the NCOP. It was desirable that such a mechanism should be “coherent” across both Houses of Parliament.
Mr Dyantyi said that the ANC wished to assert, for the sake of completeness, that the proposed mechanism should not be treated as a substitution for the other effective processes that existed but were not reflected in the current proposal. Those other processes – such as biweekly reports to the LGB – had to remain intact.
Finally, Mr Dyantyi acknowledged Mr Plaatjies’ “diagnosis” that there might be “weaknesses” in ministry staff. In that regard, it could not hurt to ask the presiding officers to consider hosting some kind of session, perhaps a workshop, in which the offices of the presiding officers and the LGB could “share notes” with the ministries. The ministries could be represented by the chiefs of staff or whichever officials were in charge. That would attend to and confront the weakness that Mr Plaatjie had identified, so that nobody could argue later that he had not been aware of the proper processes. Because such a session would probably be once-off, it did not necessarily need to be formalised as part of the proposed mechanism.
Mr Hill-Lewis said that before he made his substantive input, he had a clarity-seeking question. Why had the Fifth Parliament’s proposal to establish a subcommittee been “abandoned”? That proposal had been near completion in the Fifth Parliament, and Mr Plaatjies had not explained why it had been replaced by this entirely new proposal.
Mr Xaso replied that, in his understanding of her reasoning, the Speaker held that Parliament should not create unnecessary structures for tasks that could be completed without such structures. The rules did not require a subcommittee to be established. Rule 136 required the Speaker, in consultation with the Rules Committee, to establish some mechanism. The Speaker held that her office, of course with the support of the Rules Committee, should be able to implement a mechanism without establishing another committee or subcommittee.
Mr Hill-Lewis said that he accepted that explanation, but still had a concern. The proposed mechanism would help Parliament to deal with situations of complete non-compliance. Mr Dyantyi’s comments had also centred on complete non-compliance – situations where questions were left unanswered for months, or even for over a year. This was the “most egregious” kind of non-compliance. However, there was another kind of non-compliance that was frequently seen in Parliament, and that the DA had written to the Speaker about many times. Sometimes, ministers did respond to questions, but the quality of their responses was so poor that they did not really qualify as answers. So there were two categories of non-compliance: unanswered questions, and questions that were deliberately answered evasively. Both showed disrespect for the oversight role of the legislature. He had supported the proposal to establish a subcommittee precisely because it would give Parliament the opportunity to interrogate both categories of non-compliance. While he was generally satisfied with the new proposal, he wanted to flag his concern that it left a gap, preventing Parliament from dealing with the second category of non-compliance.
Mr Hill-Lewis said that he agreed with Mr Dyantyi that tracking unanswered questions was a non-partisan issue. Many unanswered questions came from ANC MPs, and at least two consecutive Parliaments had raised the issue as a problem. It was “high time” that parties addressed it together. If they did it right, they could improve parliamentary oversight mechanisms for all future parliaments. That could be a great legacy for the Committee and he would like to be a part of that.
However, Mr Hill-Lewis said that he disagreed with the ANC’s proposed amendment to point (5) of the Speaker’s proposal. If amended as the ANC recommended, point (5) would effectively become a duplication of point (2), which already required the Speaker to write to the LGB. Continued non-compliance should be taken seriously. If the LGB had been alerted and had been unable to fix the issue, it should be escalated to the President, who appointed members of the executive and had ultimate responsibility for ensuring that they performed.
Mr Hill-Lewis said that the wording of point (4) of the proposal left that step, the reprimand, “open-ended.” However, non-compliance was serious. As Mr Dyantyi had said, it “paralysed” MPs’ ability to hold the executive to account. He therefore recommended that point (4) should be rephrased to provide that the Speaker should, not only could, issue a reprimand. This would indicate the seriousness of the matter. Ministers would be aware that if they continued not to comply through points (1) to (3) of the process, they would be reprimanded, and would not be able to “beg the Speaker for mercy.”
Mr Papo said that whatever new mechanisms were introduced, existing mechanisms in the LGB’s office had to be strengthened. The LGB reported to Cabinet every fortnight on the number of outstanding questions in both the NA and the NCOP, and in that way did regularly take up Parliament’s concerns. However, mechanisms had to be strengthened. All officials in Parliament and in the ministries – from the Director Generals to the parliamentary liaison officers – had to fulfil their responsibilities so that questions received responses, which is what all parliamentarians ultimately wanted.
Mr Papo said that he was unsure about Mr Hill-Lewis’s point about a second category of non-compliance, supposedly constituted by responses of poor quality. The quality of a response was subjective. Moreover, he did not think that the NA rules required that MPs had to be satisfied with the content of ministers’ responses. An MP might ask a question with a certain answer already in mind, and then complain about the quality of the response if he did not receive that specific answer. Moreover, answers to some questions would be grounded in political or policy principles, which differed among parties. If an MP asked how a project was going to be implemented, he would be unhappy if the minister replied that it was going to be implemented in a way with which he disagreed politically. Yet how could an answer be non-compliant just because the MP disagreed with its content? It also happened in the Western Cape legislature – Members of the Executive Council (MECs) responded to questions, and parliamentarians might be unhappy with the responses. But did that mean that the question had not been answered? How could Parliament require that answers from the executive had to satisfy parliamentarians? What would be the purpose of writing to the Speaker about non-compliance of this kind, and how would presiding officers be expected to deal with it?
Mr Papo said that he was not saying that Mr Hill-Lewis was incorrect, but it would be helpful for Mr Hill-Lewis to clarify how answers could be non-compliant. It did not seem like non-compliance to him – it seemed like a subjective matter. What barometer would be used to measure the quality or compliance of responses? Other Members might be able to contribute on that point, but he had never seen something like this mentioned in the NA rules. If the Subcommittee was going to recommend that Parliament should track the quality of responses, the LGB had to know what criteria would be used. What constituted non-compliance?
The Chairperson said that Mr Hill-Lewis would clarify his view.
The Chairperson said that, as Mr Dyantyi had said, MPs wanted responses from ministers – members of the executive. MPs did not represent themselves but their constituencies. It was their constituencies who would “judge” MPs and members of the executives. When ministers responded to MPs’ questions, they were speaking to the constituencies of the country.
Mr Hill-Lewis said that he would provide two examples of his second category of non-compliance, to clarify his concern. He would not name the first minister, because he did not want to “personalise” the issue. That minister, about whom he had written to the Speaker, answered about eight out of every ten questions with a standard one-line response, saying only that the requested information was not available. In many cases, the relevant information definitely was available to the minister. This linked to what Mr Plaatjies had said about some staff members in ministries failing to do their jobs – although, ultimately, the minister was responsible for ensuring the quality of the answers given by his office. A second example came from Mr Tito Mboweni, who until very recently had been the Minister of Finance, which was Mr Hill-Lewis’s portfolio. Mr Mboweni sometimes responded to questions by saying that the requested information was available in the annual report. However, that was false – Mr Hill-Lewis would not have asked a given question if the answer had already been available. Again, this suggested that someone on Mr Mboweni’s staff had made an error, telling Mr Mboweni that the information was in the report when it was not.
Mr Hill-Lewis said that this was what he meant when he complained about the quality of ministers’ responses. However, he agreed with Mr Papo that answers to MPs’ questions were a matter of discretion, and Parliament could not expect or require that every reply from a member of the executive would be to the MP’s personal satisfaction. Like other Members, he was at home, so could not refer to the NA rules and Mr Xaso might have to assist him. However, he recalled that there was an expectation that members of the executives should answer questions fully and frankly.
Mr Hill-Lewis said that he had a proposal for further research. Currently, point (1) of the proposed mechanism required the Speaker to write to Cabinet members about unanswered questions, if they failed to meet the deadlines specified in the NA rules. This could be extended to deal with the quality of the responses, as well as the deadlines. Point (1) could also require the Speaker to write to the affected Cabinet members about answered questions, if the Speaker agreed with the MP that the answer was of poor quality. He thought that such a measure would deal with the problem, and requiring the Speaker to verify the quality of the response would address with Mr Papo’s concern about subjectivity.
Mr Dyantyi agreed with Mr Hill-Lewis that members of the executive had an obligation to answer questions fully. If Parliament did not insist on full answers, it would “make a mockery” of the oversight that they were supposed to exercise through oral and written questions. It was worse when written questions did not receive complete answers. MPs had the option to send written questions precisely because oral questions could only receive limited responses. That was why the Speaker’s office “cleaned up” oral questions, telling MPs if their questions asked for too much depth, too much detail, or too many statistics to be answered orally in the allocated amount of time. He agreed that Parliament could not allow ministers to “take shortcuts” in answering questions. However, he would not want Parliament to duplicate measures or processes that already existed in terms of the rules. The proposed mechanism should not substitute for what had already been established under those rules. He also agreed – and thought that Mr Hill-Lewis agreed too – with Mr Papo’s point about the discretion and subjectivity involved.
Mr Dyantyi said that he thought Mr Hill-Lewis’s first example – about responses that only said that the requested information was not available – pertained to written questions. Such responses were indeed problematic. When MPs asked questions, the first place they passed was the Speaker’s office, which did “quality assurance” on each question. Until MPs “got into the groove” of asking questions to the executive, the Speaker’s office assisted them. Sometimes a written question was misdirected or incomplete in certain respects, and it went back to the MP for correction or elaboration. He thought that such a response – that the information was not available – was an incomplete response. If information was not available because it was sensitive – for example, if it related to the intelligence portfolio – then the response should explain that. Moreover, sometimes a minister could send such a response as a preliminary response, in order to comply with the ten-day deadline set out in the rules. For example, if he asked the Minister of Cooperative Governance and Traditional Affairs (COGTA) about something happening in a municipality or province, the Minister would have to retrieve that information from the relevant municipality or province, which might take some time. It would then be permissible for the Minister to respond to his question by saying that the information was not yet available, because the Ministry had not yet received it. But, in that case, the process did not end there, and the Ministry had to do further work to acquire and provide the relevant information. This was why he had said earlier that it would be helpful to know which ministers were not complying, and on which questions. The response that information was not available should not be a standard response, and he would not accept it “at face value” – what were the reasons for the unavailability of the information?
On Mr Hill-Lewis’s second example, wherein ministers erroneously replied that the information was in the annual report, Mr Dyantyi said that this was “more than non-compliance.” Such ministers had to be “taken to task.” Such an answer defeated the purpose of conducting oversight through questions. If the information was indeed in the annual report, then the minister’s response should contain a summary of what was reported, or could even provide additional depth.
However, Mr Dyantyi said that he thought the purpose of the meeting was not the “nitty-gritty,” but the principles involved in these issues. His main point was that MPs knew what they were looking for when they asked questions, and if they were not satisfied by the responses they received, there was a process they could use to take up the matter through the Speaker’s office. That would prevent ministers from merely repeating the same unsatisfactory answer.
Mr Xaso asked Mr Plaatjies to tell Members about the current conventions and practices around replies to questions. There was certainly an expectation that ministers had to respond to questions.
Mr Plaatjies said that, according to longstanding practice, the Speaker could not dictate the form of ministers’ responses. However, a minister was expected “to confine himself to the points contained in a question.” The Questions Office usually tabulated MPs questions in point-form, so that it could clearly see whether a minister had fulfilled that expectation and responded to each point of the question. That was the only objective measure. Mr Papo was right that subjectivity was involved in deciding whether a given statement did indeed constitute an answer to the question raised in a given point. That became problematic. Sometimes, when questions were answered orally, it sent the House into “chaos,” as MPs insisted on different or fuller answers to their questions.
In such situations, Mr Plaatjies said it was better to take up the issue by writing to the Speaker, than to send the oral session into chaos. In 2013, the Minister of Police had responded to a question, and the DA had complained to the Speaker that he had not properly answered it. The Speaker at the time, Mr Max Sisulu, had written to the Minister about the points that he had not adequately answered. The Minister later responded, providing the requisite information.
On Mr Dyantyi’s example wherein ministers retrieved information from the provinces, Mr Plaatjies said that ministers were not accountable for provinces, or for information from provinces. They were accountable only to the extent that they had taken action in, dealt with, or had information about the provinces. For example, if a minister was specifically responsible for delivering water to a particular province, he was responsible for providing information related to that responsibility. But ministers could not answer for the provinces’ actions. This created problems – when ministers had to retrieve information from the provinces, some questions went unanswered for months. That was not accountability. Ministers should not answer on behalf of MECs – they should answer to the extent that they controlled the relevant information. If the information was not in their control, they should say so. For example, Ms Angie Motshekga, Minister of Basic Education, had been asked a certain question about school transport. In the NA, she had told the MP that school transport was a provincial matter. In such cases, the matter should rest there – the MP should not pursue it further with the Minister.
Mr Plaatjie said that, for another example, Ms Motshekga had once answered a question about searches and seizures in schools, and had provided information which showed that nothing had been found in searches of Western Cape schools. However, that information had not been correct, and numerous media reports had contradicted it. Ministers had to desist from attempting to answer for provinces and municipalities. They did not control the information, and they could not verify the information or guarantee its veracity. Instead, parties which were represented in the provinces and municipalities should access the information from the provinces and municipalities themselves. That was what the Constitution, especially Section 41 thereof, demanded – there were spheres of government. Ministers could answer to the extent that they had powers in the provinces, and only to that extent.
The Chairperson said that, as she had said earlier, MPs sometimes asked questions of ministers on behalf of the constituencies that they represented. She did not want the Subcommittee to discuss how ministers should respond to questions, but instead to focus on the proposed mechanism. Would the mechanism assist Parliament, and how could it be enriched?
The Chairperson added that the ANC amendments, as proposed by Mr Dyantyi, were based on the fact that the LGB was appointed by the President, who delegated responsibility to him. He reported to Cabinet and subsequently to the President. If one held delegated authority, one was expected to report to the office from which those responsibilities had been delegated.
Mr Papo said that he accepted Mr Hill-Lewis’s explanation about how ministers’ responses could be non-compliant. If the requested information was available in the annual report, the minister should at least provide the relevant page number. The minister could also reproduce the relevant section of the report in his response – in which case the MP had to accept that the response might be ten pages long, if the relevant section of the report was ten pages long. The minister could not just expect the MP to look through all 120 pages of the annual report. Similarly, the minister could not just say that the requested information was not available – unless it was a matter of operational intelligence, and it would be incorrect to table the information in the House. However, he thought the Questions Office should not allow MPs to ask questions about matters of operational intelligence in the first place. Such questions created problems, since few MPs were vetted for security clearance.
Mr Papo said that the Minister of COGTA was asked many questions about provinces and municipalities – and to answer those questions, she had to ask the provinces and municipalities for the relevant information. A lot of problems arose from those kinds of questions. A given project was within the purview and decision-making authority of the province or municipality, but a national department was expected to “force out” responses about that project simply because they shared concurrent powers with the province or municipality. Why were such questions allowed, when Parliament knew very well that the final authority often lay with an MEC or Member of the Municipal Council (MMC)? Scheduling those questions invited problems, because ministers were affected by any delays or evasions at the local or provincial level.
Mr Papo said that MPs should be asked to take such questions to the provincial legislatures and municipalities, in which parties also had representation. It was different if an MP raised an issue because it had not received a response in the provincial legislature, for example. However, there were mechanisms by which MECs and MMCs could be compelled to answer questions. Yet, instead, questions were elevated to the national executive, creating problems because the ministers lacked the relevant authority. For example, in school feeding or school transport projects, money was allocated to the provinces, who had decision-making power. Such questions should not be tabled in Parliament. This was not about curtailing MPs questions – it was just being “practical.” Parliament had to be careful with such questions, which ministers could not realistically be expected to respond to within a week or two.
Mr Papo concluded that he was in general agreement with Mr Hill-Lewis, and he maintained that the LGB’s office – though there was an existing reporting mechanism – would have to strengthen the work of ministries in relation to the NA and NCOP.
Mr Dyantyi said that he was largely covered by Mr Papo’s comments – he had been planning to make the same point. However, he strongly disagreed with Mr Plaatjies on the proper scope of questions to ministers. Mr Plaatjies needed to “take a step back,” and he hoped that Mr Xaso and his team were listening to the discussion. Some departments operated on a largely national level, such as Justice, Home Affairs, and Defence. However, most national departments had concurrent mandates, as Mr Papo had said. Under concurrent mandates, national departments tended to operate in the policy sphere, with implementation happening largely under provinces and municipalities, where the impact of implementation was felt. Given the preponderance of concurrent mandates, Ministers should be asked questions about the provinces and municipalities, and MPs could not be “barred” from asking such questions. In fact, it would be wrong to tell MPs to direct questions through their provinces. It would be even worse if provinces acquired independent powers. What about MPs whose parties were only represented in the NA, without representatives in the provinces? What should happen to that MP, who needed the information he was asking for?
Mr Dyantyi said that the proper exercise was not to discourage MPs from asking questions, but to ensure the comprehensiveness, veracity, and quality of ministers’ responses. He had experience in housing departments which had concurrent powers. When a minister whose department shared concurrent powers with provinces and municipalities was asked about a province or municipality, it was proper for him to specify that his response depended upon the information that he had received from the province or municipality. That was how such a minister protected himself. The key was the “footwork,” and the approach to answering questions – not to restrict MPs from asking questions, or restrict ministers from speaking about events within provinces. Such restrictions limited the “space of engagement” and of oversight. This linked to Mr Plaatjies’s earlier comment about the capacity within ministries – ministry staff, especially advisors and parliamentary liaison officers, had to ensure that the ministry sent proper and appropriate answers to the questions. He also remained convinced that there was nothing wrong with a minister sending a preliminary response to inform the MP that he was still awaiting information from the province. That allowed ministers to meet the 10-day deadline specified by the NA rules without sacrificing the quality of the answers they ultimately provided.
Mr Dyantyi concluded that there were reasons that questions were asked of the national executive. As he had said earlier, this was a non-partisan issue; and, as the Chairperson had said, MPs represented their constituencies, and wanted to provide answers to their constituencies. He reminded those present that South Africa was still a unitary republic, and mechanisms for parliamentary questions could not force MPs to create some kind of federal system of government.
Mr Dyantyi noted that Mr Hill-Lewis had proposed an amendment which would strengthen point (4), imposing an obligation on the Speaker. He would seek Mr Papo’s advice, but would himself have no problem with, or no “violent objection” to, making that amendment. On point (5), however, the ANC remained committed to its proposed amendment, and still held strongly that the LGB, rather than the President, had to “close that loop.”
Outcomes of the discussion
The Chairperson thanked Members for their contributions. She wished to emphasise what Mr Xaso had said about the rationale for abandoning the previous proposal, which had involved establishing a new subcommittee. The NA rules did not deal with or “support” the establishment of such a subcommittee, and Parliament could not take actions that were not in line with its rules and that might be seen as unconstitutional. The Subcommittee had considered and proposed amendments to the Speaker’s new proposal, and Members’ contributions would be taken to the Rules Committee, which would decide on the matter.
The Chairperson said that the Subcommittee still strongly believed that the LGB worked with power and authority that had been delegated to him by the President, to whom he had to report. Therefore it would not be “wise” for the Committee to endorse a proposal that sought to retract that delegated authority from the LGB’s office. Analogously, in Parliament, party whips acted in the interests of their parties. The same applied to the LGB, who had to “whip” members of the executive. If the ministers were not responsive, the LGB had to report to the President, who had delegated powers to him and who hired and fired the ministers in question.
Mr Xaso said that his team had noted Members’ contributions. It should not be difficult to enact Mr Hill-Lewin’s proposal to strengthen the wording of point (4) of the proposal. On point (5), there seemed to be disagreement among Members. Since, as the Chairperson had said, the Subcommittee did not make decisions, which version of point (5) should be reflected in the proposal to be considered by the Rules Committee?
The Chairperson said that the proposal should reflect the ANC’s amendment, which referred only to the LGB, not to the President. This stood with the understanding, in line with Mr Papo’s recommendation, that there would also be a need to strengthen the LGB’s office to ensure that responses would be produced.
Mr Hahndiek asked a procedural question. In his understanding, the proposal under consideration had come from the Speaker. He thought it would be correct for the Subcommittee not to amend the Speaker’s original proposal, but to produce a brief report, capturing Members’ views and proposing amendments, including the amendment to point (5). Then the Rules Committee could consider both the Speaker’s proposal and the Subcommittee’s report. Would that be appropriate?
The Chairperson agreed.
Mr Papo also agreed. He said that there was agreement among a majority of the Subcommittee, but that the report should reflect not only the outcome of the discussion but all views shared therein, including Mr Hill-Lewis’s.
The Chairperson concluded that the Subcommittee would produce a short report summarising its deliberations and proposed amendments. That report would be tabled with the Rules Committee, which would make the final decision – though the Subcommittee had its own strong view.
The Chairperson thanked Members. She congratulated the individuals who had recently been appointed to serve in the executive. The Subcommittee wished them well and asked God to protect them and give them wisdom with which to lead the country.
The meeting was adjourned.
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