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JOINT RULES COMMITTEE: JOINT SUBCOMMITTEE ON OVERSIGHT AND ACCOUNTABILITY
23 August 2001
CONSIDERATION OF REPORT ON PARLIAMENTARY OVERSIGHT AND ACCOUNTABILITY
Chairpersons: Ms Chohan-Kota (ANC, NA); Ms Nkuna (ANC, NCOP)
Documents handed out
Report on Oversight and Accountability
The Committee considered Chapter 4: The Oversight Role of the NCOP and Chapter 6: Establishing Mechanisms to ensure Accountability.
The specific oversight role of the NCOP was teased out by the Committee. Chapter 4 is based on a larger report and it was submitted that the chapter does do justice to that report. The authors of the Report on Parliamentary Oversight and Accountability were criticised for not consulting with parliamentary role-players in preparing the Report.
In looking at Chapter 6, Mr Lever suggested that an empirical standard be set for oversight mechanisms in the Committees so that new processes do not have to be established at the beginning of each new parliamentary term. Mr Jeffrey suggested that the guidelines be based on best practice currently employed by the Committees in terms of the budget process and oversight. The Report's suggestion that an outside body such as the Auditor General be tasked with the job of oversight was generally opposed. Mr Mathee preferred that legislation be formulated regarding oversight rather than mere guidelines. The ANC opposed such a step as it believed that an incremental approach should be adopted.
Chapter 4: The Oversight Role of the NCOP
Ms Nkuna (Co-chair) went through the chapter. This Chapter sets out the role of the NCOP institution in performing oversight. The Chapter mentions the need to guard against the duplication of oversight roles between that of the National Assembly and that of the NCOP. The NCOP creates a bridge between the National Assembly and the provincial legislatures. The NCOP has to ensure cooperative and effective governance especially when it comes to Chapter 3 of the Constitution.
The critique that has been made about the role of the NCOP is that it concentrates more on legislative processes than on playing its oversight role.
4.1 Mapping out the NCOP's oversight role
This section identifies those sections in the Constitution which deal with the oversight role of the NCOP. The NCOP has to ensure that the implementation of legislation is ensured - this is part of the NCOP's oversight role. However this is restricted to matters impacting on local and provincial government.
The main function of the NCOP in performing its oversight role is to ensure that the provincial interests are taken care of. The Constitution does not mention a general oversight role of the NCOP whereas Sections 42(3) and 55(2) dealing with accountability and responsibilities does mention the general oversight role of the National Assembly. Section 92(2) provides that members of the Cabinet are accountable individually and collectively to Parliament and thus to the NCOP. Section 66(2) says that NCOP may request a member of Cabinet to a Council meeting, thus the Constitution does empower the NCOP to hold the Cabinet to account.
4.2 General oversight role of the NCOP
The NCOP represents provinces in the national sphere. It is composed of both permanent and special delegates. The NCOP also represents local government. Members from SALGA are allowed participation in the debates thus bringing on board the interests of the local government. The NCOP exercises oversight over the national aspects of provincial and local government. It thus contributes toward effective government by ensuring that provincial and local concerns are recognized in the national policy meeting. The NCOP also has to respect the oversight role played by provincial legislatures over their executive.
4.3 Oversight to protect spheres of government
There are three distinctive spheres of government. However, they are interrelated and interdependent. The NCOP has to guard against the abuse of the power of intervention, i.e. where one sphere intervenes in another sphere in a manner that may affect its integrity.
4.4 Intergovernmental relations (IGR)
The NCOP is a crucial part of the framework of intergovernmental institutions designed to ensure the effective functioning of the different spheres of government in South Africa.
4.5 Oversight in partnership with the National Assembly
There are three areas in which joint oversight between the NA and the NCOP is required. They are set out in Sections 199(8), 231 and 203. The Corder report states that these provisions appear to demand that the NCOP have a dual character: that it should act like a "traditional Senate" and as a chamber representing provincial interests.
The Report makes recommendations about whether or not it is desirable to establish a joint committee to perform oversight functions which are the responsibility of both houses. It observes that the joint committees are not ordinarily desirable, because the oversight functions of the two Houses differ markedly and that there is a need to adhere to the constitutional provisions on oversight functions. To have a joint committee may dilute the functions of the NCOP in possibly sidelining provincial interests for party interests.
Mr F Cassim (IFP) hailed the co-chairperson for her lucid presentation. He opposed the concept of dual parliamentary authorities exercising oversight functions simultaneously. This is because the Constitution requires these two bodies to concentrate on different things. There has to be a great deal of certainty as to "who answers whom and in what situation". In order to avoid the creation of two bodies with the same oversight functions, the solution is that it is better for the National Assembly and the NCOP to demarcate clearly where the lines of authority and resonsibility should be.
Mr Surty (ANC) commented that there was merit in what Mr Cassim had said. However one should understand the NCOP's oversight role in the context of what this institution is. The Constitution clearly states that the oversight roles of the NCOP and the NA differ. The NCOP oversight role is aimed at achieving national unity. It acts as an arbiter as it is the only authority that would be able to balance the provincial and local government interests against the national interest when this arises. He acknowledged, however, that both the NCOP and the NA have concurrent powers - such as education.
Mr Cassim asked if it was not wise for Parliament to formulate rules that allow Committees to exchange reports or the Houses to exchange resolutions.
Mr Surty replied that Mr Cassim had raised a very important point. He however differed and said that the NCOP is more comfortable with what its current role is and that it has defined it much better. He said that it will certainly refine and improve it as it proceeds. He was quick to defend the role of the NCOP saying that the NCOP is comfortable with its role as it currently stands.
Ms Chohan-Kota noted that Chapter 4 is based on a report by Prof. Christina Murray. It was therefore not the original report but somebody's opinion about the original report. The chapter does do injustice to Prof. Murray's report which she had found to be excellent. It was difficult to summarize to a few pages something that runs to a hundred pages or more.
She also pointed out that the authors of the current report had not consulted with role-players in Parliament. Specifically in Chapter 4, the NCOP has been left at a disadvantage because none of the NCOP role-players had been consulted.
Mr Surty thanked Ms Kota for her input. He commented that the National Assembly is composed of members that are directly elected. They are responsible to the electorate in a direct sense. The NCOP on the other hand has a particular role. The Constitution states that the NCOP is the representative of the provinces. He concluded that the nature of the two houses is set out in section 42(3) and 42(4)
Ms F Mahomed (ANC) commented that the executive has the power to introduce a Bill in either the NCOP or the NA. This consultative process between the two Houses enhances cooperative governance.
Mr Cassim observed that the meeting had been an excellent session and that the inputs had made him have a slightly different view regarding these matters.
Composition of drafting team for committee report
The Chairperson, Ms Chohan-Kota, suggested that members for the drafting team be identified by the committee and that the team consist of the two chairpersons and at least two members from the opposition parties.
Mr Lever (DP) said that he would be interested in being part of the drafting team.
Mr Surty (ANC) voiced concern that the team not be too large as this would only lead to it becoming cumbersome to co-ordinate. The Chairperson agreed that the team not be an unnecessarily large one.
Chapter 6: Establishing Mechanisms to Ensure Accountability
Mr Surty (ANC) voiced the opinion that the statements by Ministers and the Members of Parliament were an important instrument of oversight and that briefing of Ministers by portfolio committees should be added to this list.
The Chairperson stated that the committee had already been through the exercise of listing what the document did not list. Oversight existed already in the different areas of Parliament such as in plenary sessions and in the portfolio and select committees as well as in the forms of summons and public hearings.
Mr Matthee (NNP) made reference to the use of petitions in other parliamentary democracies and noted that Section 17 of our Constitution provides for the right to petition. He believed that this was a very good way of invoking public participation and should be addressed. The member made reference to some research that he was currently undertaking about the use of petitions in other countries and in the provinces where some were looking to introduce Bills to facilitate petitions.
The Chairperson asked that Mr Matthee's research be made available for use in the Committee's report and that more research was needed within the Committee.
Mr Surty said that Parliament needed effective mechanisms to be able to deal with petitions.
Mr Lever (DP) mentioned that if the budget process was to exercise an oversight function then there should be guidelines for the Committees as to how this should be facilitated.
Mr Jeffrey (ANC) expressed the view that there was a need to know what mechanisms existed first before proper recommendations could be made and that it would be useful to see what the Committees were doing about oversight. It would be difficult to prescribe guidelines for all Committees to follow because some had busier workloads than others, which would make a set standard hard to achieve across the board. He suggested that it be considered that committees meet regardless of whether there was legislation to be dealt with or not. He went on to state that a shortcoming of the Report was that it had not dealt with the structure of Committees.
Mr Surty said that a focus had been placed on the budget as a tool of oversight and accountability but asked what was being done about processes prior to the budget being tabled in Parliament.
The Chairperson stated that within the ANC they were currently deliberating as to how Parliament interacts with the budget but that this had not yet been finalised.
Mr Lever noted that an empirical standard should be set for the Committees so that after each national election, Parliament would not have to start over again putting processes in place.
The Chairperson said that she had no problem in setting a standard but that it could not be expected realistically that all Committees would be able to adhere to it in the same way.
Mr Jeffrey suggested that the guidelines be based on best practice currently employed by the Committees in terms of the budget and oversight. He suggested that both Houses of Parliament together with the Clerks and Chairs of the Committees compile such a report.
Mr Lever asked to leave the meeting. At this point, Mr Jeffrey complained that matters were continually being re-opened for discussion because of the coming and going of some of the members. Mr Jeffrey asked that it be noted in the minutes when members were present. They may be on record as being present when in fact they have spent considerable time outside of the venue. The Chairperson agreed that this was a reasonable recommendation and that it was a reality that this Committee had been limping along for years.
Prof Mayatula (ANC) observed that in Parliament, oversight was not taken nearly as seriously as legislation was. He was in favour of a set of guidelines being formulated for oversight.
Mr Jeffrey believed that it was premature to consider legislation (as raised in 6.1) to regulate oversight but the suggestion about legislation could be put to both houses. The proposal in the Report that the Auditor General be used to perform some of the oversight functions was not a viable option because they had a specialised accounting function and would therefore not be equipped to monitor compliance and implementation of legislation. Mr Jeffrey suggested that each department develop its own mechanism for oversight and that a super body that was expected to do it all would not be possible.
Mr Surty (ANC) stated that the Public Finance Management Act (PFMA) placed another responsibility on Parliament and that oversight should be part and parcel of what the Committees did and not just what they considered if they had time left on their schedules. He was not in favour of the Auditor General performing the function of oversight, as it would not be able to take a political decision if things were not going in the right direction. He warned against prescribing to the various departments, as that was an executive function. However they could prescribe to themselves as Members of Parliament.
The Chairperson noted that it was the view of the Report that the ideal would be if the Committees could exercise the function of oversight themselves but that Parliament had not yet evolved to that stage yet.
Prof Mayatula stated that he would first have to be convinced as to why his Committee would not be able to perform the function of oversight before he would support the proposal of handing over the function to the Auditor General.
The Chairperson made reference to points (aa) to (cc) in 6.1 (ii) of the Report and stated that she assumed that these had been listed in order of priority.
Mr Jeffrey noted the need to establish what the obligations for Committees were under the PFMA. His problem with the Report is that the consultants had made use of IDASA information and had not conducted interviews with the Chairpersons of Portfolio Committees to gain another insight.
Mr Surty (ANC) suggested that the terminology 'uniform standards' be used as opposed to 'minimum standards' that might lead to a lesser level of compliance. He suggested that if the term 'minimum standards was used that it would be difficult to demand more than the lowest level. There were no objections to this suggestion.
Mr Mathee stated that if legislation was preferred over guidelines then the issue of sanction against non-compliance might well be addressed. He also raised concerns over the willingness of members to raise touchy issues of oversight and thus risk political suicide. However if legislation was put in place then members would be able to shield themselves by saying that they merely sought compliance with legislation. He said that you could risk your political career by simply exercising your role of accountability.
Mr Jeffrey stated his belief that it was necessary to have legislation for sanction and that it was ultimately the electorate who would decide whether or not members have performed their roles. Parliament did have the ability to hold anybody accountable through their power to summons. Mr Jeffrey reiterated that Parliament was not ready for legislation on oversight and it would be better to produce policy separate from the guidelines and amend them before considering legislation.
Prof Mayatula intoned that the lack of oversight in the National Assembly was not as a result of a fear of sanction.
Mr Surtee stated that he failed to see how legislation would protect one from party scrutiny.
Mr Mathee said that he still supported the idea of legislation and would take the issue back to his party principals.
The Chairperson suggested that the view of the majority and the minority of this committee as regards legislation be presented to the Rules Committee.
Mr Surty stated his belief that a consolidated view should emanate from the committee and that the majority view should be the one that was presented to the Rules Committee. He suggested that all committee reports be placed on the computer network for all to read instead of only being sent to the heads of the two Houses - in the interests of oversight.
The Chairperson noted that she would take that request as a formal recommendation. The meeting was adjourned.
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