Transformation of SADC Parliamentary Forum into SADC Parliament: briefing

FOREIGN AFFAIRS PORTFOLIO COMMITTEE
18 August 2004
TRANSFORMATION OF SADC PARLIAMENTARY FORUM INTO SADC PARLIAMENT: BRIEFING

Chairperson: Mr D Sithole (ANC)

Documents handed out:
Presentation on Transformation of SADC PF into SADC Parliamentary
SADC Parliamentary Draft Protocol

Relevant document
SADC Parliamentary Forum Constitution

SUMMARY
The Committee was briefed by the Parliament's Legal Services Office on the Transformation of Parliamentary Forum of the Southern African Development Community (SADC) into the SADC Parliament. The Committee worked through the provisions of the Draft Protocol and proposed certain amendments. A discussion ensued on the accountability of non-MPs of National Parliaments designated to serve on the SADC Parliament. Also discussed was the relationship between the SADC Secretariat and the SADC Parliamentary Forum Secretariat

MINUTES
The Chair noted that it is very important for the Committee to understand what is happening so as to be able to make a meaningful contribution to this process which would culminate in a SADC Regional Parliament. The discussion that followed included the following issues: - the relations which the new Parliament would enjoy as against other SADC organs and Pan African Parliament - that it should be socio-economic and people development-based - that the Parliament would be created with only consultative and oversight functions at the beginning and later develop into a legislative forum - that the issue of composition be reviewed at a later stage

Transformation of SADC Parliamentary Forum into SADC Parliament: briefing
Ms Dudu Lenzie (Parliamentary Legal Advisor) said the presentation aimed at assisting the members, amongst other things, to understand the process better, so they could be able to decide how it should unfold into a regional Parliament. Her presentation gave a brief overview on the background and role of the SADC Parliamentary Forum and how in April-May 2003 a resolution was taken to accelerate the transformation of the Parliamentary Forum into a SADC Parliament. Thereafter she outlined the task team reports on the process, the draft protocol and areas of concern (see presentation).

Discussion
General B Holomisa (UDM) proposed that another objective dealing with the issue of the environment and tourism be inserted in the objectives clause.

Ms Lenzie noted that initially it was thought that the aspects dealing with environment and tourism would be covered by the broad objectives. However it is unnecessary at this stage to dwell much on what should be contained in the new regional Parliament Constitution. Should members feel compelled to do so then they could deal with it in the Draft Protocol.

Ms A Njobe (ANC) asked what kind of relationship the proposed SADC Parliament would have in relation to the SADC Summit of the Heads of States.

Ms Lenzie responded that this is still one of the problematic issues which should be dealt with as the relationship between the two is not clear. Initially it was thought that the SADC PF would be independent from the Summit of the Heads of States. However it was later realised that it could not be completely independent and as such it should account to the Summit of the Heads of States.

The Chair agreed that the issue of relationship between the two causes a lot of tension between the SADC Secretariat and the SADC PF Secretariat as the former perceives the latter as an NGO (non-government organization), while the latter views the former as an equal. Therefore the SADC PF Secretariat argues that the SADC Parliament should be on the same par as the Summit of the Heads of States. He said that it is the duty of the Committee to engage with this matter when dealing with the Protocol to develop a structured relationship.

Ms Njobe (ANC) noted that there was a memorandum of understanding entered into between the SADC Secretariat and SADC PF Secretariat which was never accepted. She asked that a copy of it be made available to the members.

Ms Lenzie said that the document was still in its draft stages. However a copy of it would be made available to the members in due course.

SADC Parliament Draft Protocol
Ms Lenzie noted that this part of the presentation on the Draft Protocol would assist members in deciding how much should be left out or retained from the old system whilst developing the new one. Noting the reservations forwarded by the South African delegation on the manner in which the Protocol was adopted, she said that there is nothing much that could be done at this stage. Further most SADC countries supported the process and that means therefore that the process would go on with or without South Africa's involvement. She referred members to S231 of the South African Constitution which deals with international agreements. She also informed the Committee that the Republic of Madagascar has also decided to join in the process and has signed the Protocol therefore making it fifteen state signatories to the Protocol (see presentation).

Article Two: Constitution of the Parliament
The Chair noting that the reporting pattern would one way or the other affect the establishment of the SADC Parliament, namely under which section is it established and what is the hierarchy of reporting. He thus asked how the reporting would take place.

Ms Lenzie responded that legally it does not matter where the SADC Parliament is put in terms of the SADC hierarchy, however, amongst other things, the Protocol may clarify how the SADC Parliament relates with other SADC organs and which reporting pattern should it follow.

General Holomisa (UDM) was of the view that in the meantime the work of the SADC Parliament and the Summit of the Head of States should be integrated so as to avoid unnecessary bureaucracy.

Ms Lenzie in concurring with the latter speaker noted that it would also be helpful in eliminating unnecessary bureaucracy to retain the present practice of the SADC PF where it invites the Head of State and the Ministers of the hosting country to address it and thereafter deals with issues arising from those addresses.

Article Three: Objectives
Ms Lenzie noted that the objectives of the SADC Parliament represents a summary of the objectives of the SADC PF as contained in Article 5 of its Constitution. She thus advised that it would be unnecessary to increase their number but only consider those issues that are not covered in the current objectives.

3(1)
Prof B Turok (ANC) noting that 3(1) speaks of involving Parliamentarians in SADC activities, he then asked if this would not undermine the whole notion of the separation of powers between the Executive and Legislature.

Ms Lenzie suggested that the issue of the separation of powers as it is understood at a national level might differ to that at a regional level.

Prof Turok (ANC) proposed that this provision should be redrafted so as to anticipate any objection that might arise between the Executive and the Parliamentarians in the performance of their functions.

3(3)
Prof Turok (ANC) noting that the concept of economic development was very narrow, proposed that this be substituted with the phrase "socio-economic development and development of people" as the emphasis found in the African Union documents, including those of Nepad, is around the socio-economic development of people.

Mr Ditshetelo (UCDP) referred to the concern initially raised by General Holomisa regarding environment and tourism and proposed that this provision be unbundled so as to cover that aspect.

The Chair acknowledged these two concerns and asked that a new provision be developed so as to address the issue of environmental development.

Ms Lenzie replied that the concern had been registered and would be presented in the next plenary as part of the South African Parliament suggestions for the improvement of the Protocol.

3(5)
Ms S Motubatse-Hounkpatin (ANC) proposed that this provision also be rewritten so as to make it clear that the proposed regional body would form part and parcel of the building blocks for continental unity.

Mr Ramgobin (ANC) agreed saying that whenever the SADC Parliament enters into inter-parliamentary co-operation, whether within the continent or globally, it should always observe the supremacy of the Pan African Parliament (PAP).

The Chair noted that this provision would need to be redrafted so as to clearly outline the SADC Parliament objective in inter-parliamentary co-operation in relation to the PAP.

Article Four: Role and Functions
4(1)(c)
Mr Ramgobin (ANC) asked what would be the situation if the SADC Parliament decided to ratify an international agreement which another State or regional Parliament refused to ratify.

Ms Lenzie replied that this provision did not foresee a situation where SADC Parliament goes out of its way to facilitate a speedy ratification of a Protocol by other States which are not its members but only deals with those States with are its members. While the decision to ratify is the prerogative of a State, once a State becomes a member of any body then it would be required to follow such body's policies to a certain extent.

4(1)(d)
Prof Turok (ANC) noting that a reference to "popular views on development" is ambiguous, proposed that it be rewritten so as to make reference to NEPAD policies and people's development.

4(1)(e)
The Chair accepted the notion that the SADC Parliament should be able to debate and approve its own budget but felt that the powers to approve the SADC budget should be kept in abeyance until such time as it has assumed legislative powers.

Ms Njobe (ANC) asked how SADC PF currently raiseS its funds.

The Chair responded that the SADC PF raised it funds through National Parliament membership fees and fundraising. All National Parliaments who are members to SADC Parliament are required to pay a subscription fee of about R420 000 per annum.

Ms Njobe (ANC) noted that the SADC PF is currently raising its funds independently from the SADC, and agreed with the Chair that there is no reason why it should thus approve the budget of the Community.

The Committee therefore unanimously agreed that the SADC Parliament should only be able to debate and express its opinion on the SADC budget and not necessarily approve it.

4(1)(f)
The Committee unanimously agreed that the SADC Parliament should be able to consider and debate the reports of the Community.

4(1)(g)
Ms Lenzie was of the opinion that setting stipulations in the Protocol would limit the SADC Parliament's ability to make recommendations to the Summit or the Council.

Mr L Labuschagne (DA) therefore proposed that the SADC Parliament should be able to make recommendations on any issue as long as it is not in conflict with the objectives.

The Committee unanimously agreed with the proposition.

4(1)(h)
Ms Lenzie noted that the effect of this provision is that it limits the SADC Parliament only t those laws which the Summit desire necessary to be enacted and as such it does not grant it the power to initiate the enactment on its own.

The Chair noting that the SADC Parliament would only act as the consultative forum before it assumes the powers to enact laws, he thus proposed that this fact should be explicit in the Protocol so as to avoid any unnecessary confusion. Furthermore such provision should require the SADC Parliament to meet first, after the stipulated period has expired, and consider the appropriateness of handing the Parliament such legislative powers.Â

Mr Labuschagne (DA) however was of the opinion that this provision is not relevant at this stage and thus proposed that it be deleted.Â

General Holomisa (UDM) was of the view that the Committee should first seek the guidance of the Summit before taking any step in this regard.

Ms Motubatse-Hounkpatin. (ANC) concurred with General Holomisa's proposal that they should first seek guidance from the Summit.

Article Five: Composition of the Parliament
5(1)Â
Mr Joubert (IFP) said that this provision is not relevant and thus proposed that it be deleted. The Committee unanimously agreed with the proposal.Â

5(2)Â
Ms Gxowa (ANC) asked whether the population of the country was taken into account when the question of representativity was considered by the SADC PF.

Ms Lenzie responded that although initially it was thought that representativity should be based on the country's Gross Domestic Product and population, however this view failed as the SADC PF could not reach an agreement. At the moment it is only the ECOWAS Parliament that takes into account the country's population and as a result out of its 120 seats, Nigeria was allocated 25 and the remainder was divided proportionally amongst the other fourteen members based on their population. There was a proviso that each country should at least have a minimum of five seats.

The Chair proposed that the provision on composition be reviewed when the SADC Parliament assumes its legislative powers.

The Committee accepted the proposition.Â

Article Six: Election of members of the Parliament
6(2)
Mr P Ditshetelo (UCDP) noted that Parliament has instruments to control and maintain oversight over its members. He asked how those who would be designated to serve on the SADC Parliament from outside of National Parliaments would be controlled and kept in check.

Ms Lenzie acknowledged that since not everyone designated to the SADC Parliament would be a Member of a National Parliament, it would be difficult to hold them accountable. This clause was debated extensively in the meeting of the SADC PF that was held in Lesotho in December 2003. But as the PF could not reach an agreement, a four member team was appointed which later submitted its recommendation to the Executive Committee. It noted that it would be advantageous for National Parliaments to have this provision so as to be able to effectively make use of the experience of their former MPs. However the issue of accountability was not dealt with and thus remains a policy decision that has to be taken up by the Committee.

The Chair felt that it is important that the source of non MPs designated to the SADC Parliament mandate be established since they would be there representing the National Parliament and the country, as the whole, at an international level.Â

Ms Njobe (ANC) pointed out the accumulation of experience of serving MPs and she was of the opinion that they should be allowed to serve their country even if they are no longer serving as MPs. They were also aware of parliamentary procedures.Â

General Holomisa (UDM) supported this and asked the Committee to be flexible about this as there are a number of people with special expertise who could be fruitfully used, even though they are not serving as MPs. There are lot of mechanisms which could be developed to hold such people accountable. Amongst them would be to require the designated people serving in the SADC Parliament to report to National Parliament as a team.

Mr Ramgobin(AC) said that the development of a regional Parliament served as a building block for the AU. He asked if is there any regional formation in Africa which also allow non MPs to serve in their regional Parliament.

Ms Lenzie responded that at present it is only the East African Legislative Assembly which allow non serving MPs to be part of its regional Parliament.

The Chair noted that they would have to study the East African Legislative Assembly system very carefully so as to developed one for the region.Â

Ms Lenzie said that she would make available to the Committee the report of the meeting of the all African regional Parliament that was held in Kenya as it outlined clearly the procedure followed by the East African Legislative Assembly.Â

However Mr Joubert (IFP) was not content with that and proposed that a provision be inserted in the Protocol regarding non serving MPs who are designated to the SADC Parliament.Â

Ms Gxowa (ANC) was of view that national legislation could be usefully used as the means to hold non serving MPs accountable. A similar procedure has successfully being used by the Minister of Health in holding the Health Council accountable.Â

Ms Lenzie, noting that a Protocol applies at the regional level, was of the view that such an accountability provision should rather be created in the Rules or by means of national legislation as is the case with the Health Council.

The Chair asked this to be noted and flag this to be dealt with at a later stage.

(6(3)
The Chair asked how someone who has never been elected a Member of Parliament could retain his/her seat in Parliament when designated to the SADC Parliament.

Ms Lenzie apologized for the misprint. The provision only applied to those Members of Parliament who are also designated to the SADC Parliament.

The Chair commented that they had dealt with the bulk of the Protocol, especially with the substantive provisions, he thus asked the Committee to give him and Ms Lenzie a mandate to identify those provisions which remain critical and require its attention.

The Committee accepted the proposition with the proviso that the Chair would communicate with all the members in this regard.

Ms Lenzie pointed out that it is important that the Committee consider the provisions relating to transitional arrangements since most of the members of the SADC PF have stated categorically that they do not want a simple change of names but a total transformation of the present system Therefore it would be imperative for the Committee to decide how much time period the new Parliament would be given to restructure itself. She also noted the importance of constant communication between the MPs and the Executive and said that this would avoid a situation where the two find themselves in conflict with each other at international gatherings.

The Chair asked Ms Lenzie to prepare a one page document for the Committee outlining what transitional arrangements issues should be considered so as to develop this new regional Parliament.

The meeting was adjourned.