Panel for Assessment of Parliament

COMMITTEE OF CHAIRPERSONS
22 October 2007
PANEL FOR ASSESSMENT OF PARLIAMENT

Chairperson of the Panel: Ms Pregs Govender

Members of the Panel: Mr Aubrey Matshiqi, Mr Papati Malavi, Mr Sisulu Marx

Audio recording of meeting[Part 1]&[Part 2]

SUMMARY
An independent panel was commissioned to do a review on Parliament. In the afternoon session the panel met with the Chairpersons of the National Council of Provinces. The Chairpersons listed their concerns that included their lack of capacity with regard to their size, budget, oversight and even their researchers capability. It was also noted that the National Council of Provinces were viewed as the lesser House within Parliament and therefore their mandate was seldom seen as vital.

The Panel questioned their necessity within Parliament as well as their representation. It was also noted that the National Council of Provinces that the weaknesses with the National Council of Provinces could structural and resource based. The accountability of the Ministers was clarified, as they were accountable to Parliament and therefore the National Council of Provinces.

It was suggested that for the next meeting the National Council of Provinces chairpersons should present a document that detailed their challenges an suggested possible solutions.

MINUTES
[PMG note: The following is a synopsis of the afternoon session. The morning session will be available shortly]

Introduction
The independent panel was created to assess the performance of Parliament as a democratic institution since 1994.  The nature and composition of the panel itself reflected the cross-section of South Africa.

Functions of the NCOP
Mr T Setona (NCOP Chairperson: ANC) gave a brief description of the functions and role of the National Council of Provinces (NCOP).  There was the assumption that NCOP was simply a House of review. One of the primary functions of the NCOP was to ensure that provincial interests were represented. Members were therefore appointed by their own provincial legislature. The NCOP also dealt with the exclusive national competence, in terms of the Section 75 legislation, as it is stated in the Constitution. This was done through scrutiny and deliberation to assess the implications of the legislation in terms of the provinces.  The manner of voting was party political and could be done without provincial mandates.

In terms of Section 76 of the Constitution, which dealt with the concurrent functions of the national and provincial government, the NCOP voted according to what the provincial legislature had decided.  Each provincial legislature would have received a briefing on that legislation. It would then follow its own processes, and ultimately make its own decisions regarding the legislation. The failure and success of the NCOP decision process should then be taken into context.

Challenges as expressed by the NCOP Chairpersons
The following input was made by Mr T Ralane (ANC, Free State) and Chairperson of the Finance Select Committee in the NCOP, Rev P Moatshe (ANC, North west) and Chairperson of the Land and Environmental Affairs Select Committee in the NCOP, Ms N Ntwanambi (ANC, Western Cape) and Chairperson of the Select Committee on Economic and Foreign Affairs in the NCOP), Mr S Schiceka (ANC, Gauteng) and Chairperson of the Local Government and Administration Select Committee in the NCOP, and Kgoshi L Mokoena.(ANC, Limpopo) and Chairperson of the Security and Constitutional Affairs Select Committee in the NCOP and Mr Setona:.

The NCOP expressed a number of challenges it faced. The relationship between the NCOP, provincial legislature and the National Assembly could be viewed as strained. The NCOP lacked capacity in terms in of their size, if measured in proportion to its functions. The NCOP worked in clusters, with one NCOP Committee working with three or four national departments, as well as doing oversight visits linked to each of those national departments. It was suggested that oversight be coordinated with the Portfolio Committee in the National Assembly to avoid repetition of visits by the NCOP.

Members of Parliament needed to be better aware of the backgrounds of each Member of the NCOP so that they could be properly equipped and capacitated to discharge their functions. The research function was lacking and there was no manner in which the NCOP could verify the information presented by the executive. Often whatever was said by the executive was accepted. The NCOP should be afforded the opportunity to question and scrutinise presentations and information provided by the executive. It was suggested that if its capacity issues were addressed, the NCOP would be able to work more efficiently.

There was nothing that compelled Ministers to address the NCOP on Section 76 legislation. Public hearings were not held in provinces and the NCOP did not have the mandate to enforce such public hearings to be held. This was especially important when it came to legislation that was rejected by the NCOP. If the Select Committee wanted the view expressed in the negotiating mandates to be followed, many a time such a mandate would have to come from the Select Committee itself. The involvement of the local government sphere in the law making process was erratic and inconsistent. The duration of deliberation of Bills within the NCOP were short compared to the passage of the Bills through the National Assembly. This increased the pressure placed on the NCOP, and reinforced the view that the NCOP was merely a process that needed to be followed.
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It was suggested that ‘provincial Bills’ had to be placed in context, in terms of the provincial and national government.  Those Bills needed to be processed with the same status and importance of the other Bill. Failure to do so caused inconsistency.

The budget of each Select Committee also came under question. It was noted that one Portfolio Committee that dealt with one national department, and had a larger budget than a Select Committee, which deal with three or four different national departments. The communication between the executive and the NCOP should be developed so that it becomes basic protocol. The manner in which the NCOP engaged with provinces was also problematic as it only engaged on Section 76 matters. 

The NCOP was the only arena in which all three spheres of government could engage on matters. Even though the three spheres were interdependent, they were also to some extent autonomous. The NCOP saw itself as the custodian of intergovernmental relations, but this did not function very well.

The NCOP also had the function of deciding, along with provinces, on the equitability of the fiscal allocations to provinces and local governments. The Financial and Fiscal Commission (FFC) assisted them with this and this process could be strained at time.
 
Panel comments and responses
The following input was made by Ms Pregs Govender, Mr Aubrey Matshiqi, Mr Papati Malavi and Mr Sisulu Marx:

The relationship between the NCOP and the National Assembly was strained because experience dictated that the two Houses were not of equal status. The need for the NCOP was questioned. The representative function of the NCOP was questioned, and whether the will of those represented were properly represented. The accountability of Ministers to the NCOP was part of their mandate, as the Ministers were accountable to Parliament and therefore the NCOP. Provincial mandates were a central issue of contention. Furthermore, if the NCOP lacked capacity, as was suggested, should an increase in the number of NCOP Members be considered?
 
It was noted that the NCOP should not be viewed in a biased manner, and the t National Assembly must not be seen as having greater status within Parliament. The National Assembly and the NCOP needed to be given equal status. The view expressed was that the weaknesses within the NCOP were structural and resource based. The challenge facing the NCOP was how this issue could be resolved. It was generally accepted that there was much work to be done.
 
The NCOP should be involved in consultation process regard the name changing of provinces. The role of provinces and the NCOP with regard to the Imbizos should be clarified.  Funding was available for capacity building for Members of Parliament, and it should be utilised. 

The origin of the Bills was questioned as 99% of the Bills originated from the national departments. It was asked why they could not originate from the provinces as well, or from the NCOP. 

Closing Remarks by the House Chairperson
The issues raised were fundamental, especially the issue of the representation of provincial interests.  If it was the provinces that were represented, the question was whether they were representing the people’s view or the view of the legislatures. This issue was not properly discussed.

There should be a commonly agreed upon benchmark for the performance of the NCOP. The NCOP could not be compared to the National Assembly as the two Houses were created for different purposes. Perhaps other countries with a similar Parliamentary structure should be assessed and used for comparative purposes.
 
There had been a great improvement in terms of accountability of Ministers to the NCOP.
The issue of oversight and accountability was a joint project of Parliament and the NCOP needed to examine whether it has been true to the Constitutional mandate. The fundamental issue should also be the way the NCOP approached the legislation presented to it.

It was expressed that the way the above issues were addressed would directly affect the way the NCOP executed its mandate. 

Closing Remarks by the Chairperson of the Panel
The suggestion was made that a meeting take place between the Chairpersons of the NCOP to discuss these issues and challenges, in order for the panel to gain a clearer view at the second meeting.

The Chairperson of the panel adjourned the meeting.