Review of Parliament 2016
It was a short parliamentary year due to the 2016 Local Government Elections. Nonetheless, it was a bumper year of parliamentary business, court battles, internal squabbles, jousting, attempts to remove the President from office and parliamentary inquiries.
While all the events are too many to enumerate, this review will attempt to wade through the key highlights of this eventful year.
The selection of a new Public Protector was one of the major stories of the year. A multi-party ad hoc committee interviewed 14 candidates for the post. The process was unprecedented in many ways: the huge public interest (resulting in the live screening of all interviews), the CVs of the candidates were published online, the public could raise objections and the interviews lasted an uninterrupted 20 hours. This attitude to openness and transparency was largely prompted by civil society groups who pushed for greater public involvement and set a new benchmark for other statutory appointments that followed – this included the SAHRC, Public Service Commission, Commission for Gender Equality and ICASA to name a few.
It took a while and a few hurdles (attitudinal and arithmetic) but Parliament was finally able to recommend a new Inspector-General of Intelligence and Information Regulator for appointment. However; its inability to appoint a new National Youth Development Agency board was a notable black mark. The process had to be restarted several times and was mired in political manipulation.
Parliament passed 18 Bills this year.
There are currently 27 bills in the highways and byways of both Houses. Amongst others, this includes the Insurance Bill, Traditional and Khoi-San Leadership Bill, Extension of Security of Tenure Amendment Bill, Broadcasting Amendment Bill, Financial Sector Regulation Bill, Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill, Films and Publication Amendment Bill, Mineral and Petroleum Resources Development Amendment Bill and Border Management Authority Bill.
These bills will resume their path to becoming law in the New Year and it is anticipated that a number of them will be finalised in the first term.
The wish of the late MP Mario Ambrosini inched one step closer to becoming a reality as the Department of Health stated its plans to regulate access to medical cannabis for prescribed health conditions as proposed in his Medical Innovation Bill.
There has been an interesting and noticeable increase in the number of bills – Expropriation Bill, Performing Animals Protection Amendment Bill and Financial Intelligence Centre Amendment Bill – returned to Parliament by the President either due to constitutional or procedural reservations. This of course calls into question Parliament’s ability to process legislation effectively and is bound to have some ripple effect. Already some NCOP committees have taken note of this and intend to be more cautious in their approach.
Due to its high workload, the Standing Committee on Finance was not able to review the Money Bills Amendment Procedure and Related Matters Act, which gives Parliament the power to amend the budget and other money bills presented to it. The committee is supposed to look into the time frames and sequencing associated with the different financial instruments and bills, and the parliamentary procedures related to them. Every year, legistators complain during budget and annual report seasons that the timeframes are very short and that meaningful engagement on amendment proposals, is not possible.
Simarlarly, a multi-party ad hoc committee tasked with reviewing the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act to take account of the Constitutional Court judgment on the use of security services in the House was not able to complete its work. Both committees are expected to finalise their work next year.
Cabinet approved the Socio-Economic Impact Assesment System (SEIAS) last year. SEIAS require that government departments must, before developing any policy, regulation or legislation, ensure that they take steps to minimise the unintended consequences of such policy, regulation and legislation, including unnecessary costs of implementation and compliance. The SEIAS further requires government departments to anticipate implementation risks and to develop measures to mitigate such risks.This initiative has been a positive development, with legislators seeking out this information when processing bills. Going forward, this is likely to become a fixed part of the legislative process.
The introduction of several contentious new bills next year is expected to spark debate and their passage is likely to be fraught. These include the Copyright Amendment Bill, Traditional Courts Bill, Cybercrimes and Cybersecurity Bill, Regulation of Landholdings Bill and the Liquor Amendment Bill.
The High Level Parliamentary Panel tasked with assessing the impact of key legislation in accelerating change and transformation, conducted public consultations across the country. The panel was a legacy proposal of the Fouth Parliament and has been picked up as a strategic objective by the Fifth Parliament. The Panel will publish its report in 2017.
Some of the most significant action happened outside the Assembly. The courts decided on several important matters – amonst others, Parliament’s Nkandla report, the removal of unruly MPs by police, the broadcast feed policy and unparliamentary language.
The Nkandla judgment was devastating - it found that the National Assembly failed its constitutional obligations to hold the executive to account and to oversee executive action. The Constitutional Court set aside as inconsistent and invalid the parliamentary resolution that absolved President Jacob Zuma from having to repay anything for the features identified as non-security upgrades by the Public Protector.
There were two other significant defeats for the legislature. The Supreme Court of Appeal unanimously ruled that Parliament’s broadcasting policies and rules implemented during last year’s State of the Nation Address violated constitutional principles of openness. The Constitutional Court found that the Speaker of the National Assembly cannot order security forces to remove a parliamentarian causing a disturbance in the House.
There was also some good news for Parliament though. The Western Cape High Court found that the National Assembly had the authority and powers to maintain internal order and discipline in its proceedings, including the power to temporarily exclude from the National Assembly any member for disrupting its proceedings or impairing unreasonably its ability to conduct its business, in terms of the Constitution.
Oversight and Attendance
Members of the Executive, including the President and the Deputy President availed themselves routinely to answer oral Questions in both the National Assembly and the National Council of Provinces. That said, opposition parties continued to raise concerns that some ministers were consistently absent despite assurances from the Leader of Government Business. Equally important and perhaps more difficult to solve are complaints about the quality of the response provided. You can expect to hear more on this next year.
Parliament had to delay the passing of important bills and appointments due to poor attendance. The ANC has instituted disciplinary action against MPs who missed two important sittings that dealt with the Division of Revenue Bill. Committees have also reacted with frustration at the lack of attendance of Members of the Executive at key committee meetings. Some are habitually absent and others are good attendees. The PMG has been monitoring ministerial attendance in the Committees since August 2016 and will make this available in the New Year.
Committees, Plenary Sittings and Presiding Officers
Whilst overshadowed, committees remain a vital platform where the real work of Parliament takes place.They provide lawmakers a unique opportunity to hear directly from experts, organisations and individuals who may be interested in or affected by a particular issue. It also affords them more time to fully examine a topic and they are not held back by the huge constraints affecting plenary sittings. More than 1200 committee meetings were held this year. This is a slight drop from the previous year but is more impressive given the condensed programme. Committees dealt with some serious and pressing issues, including the national minimum wage, drought, performance of SOEs, jobs and the economy, women’s rights, higher education fees, national gambling policy, white paper on policing, decriminalisation of sex work and the nuclear build programme to name a few.
The adhoc committee probing the SABC has asserted Parliament’s role. The Committee was established following the resignation of two board members, the re-appointment of the ousted COO as head of Corporate Affairs and the refusal of the sole board member to resign. The inquiry has been punctuated by explosive revelations, fiery exchanges and laid bare the extent of the rot facing the public broadcaster. The inquisitorial process allowed for scrutiny that is rare in Parliament. The inquiry is expected to continue next year despite the remaining board member resigning on 19 December.
Parliament's Standing Committee on Public Accounts (SCOPA) is determined to clamp down on irregular, wasteful and fruitless expenditure at government institutions. The Committee plans to use the Hawks to go after culprits and the crime busting organisation has been part of the committee’s meetings. Some of the persons and entities who were grilled by SCOPA include the Ministers of Basic Education and Social Development, Hawks and PRASA, to name a few.
2016 was a trying year and many important and urgent matters were discussed in both chambers either in the form of a motion, debate, statement or discussion. These included state capture, the relationship between Parliament and the executive, the economy and jobs, land, living conditions of farm workers and the umpteenth motion of no confidence against President Jacob Zuma.
The Speaker and other presiding officers had a difficult task chairing plenary sessions. Many sittings were a battlefield where decorum was disregarded and unruliness reigned. Spurious points of order, name-calling, walkouts, and more were the order of the day and tested even the most unflappable. The ‘white shirts’ (part of the parliamentary protection services) were still a feature this year and were called upon by the presiding officer when Members refused to leave the main chambers. Most of the worst behaviour was displayed during the President’s appearances who even complained about the abuse he received. Parliament's presiding officers and their rulings routinely raised the ire of opposition parties who claim that they were biased, inconsistent and shielded the executive. More words were added to the ever-growing banned list: “Mr Zupta” and “black face”, and comparing ANC members to wolves were declared unparliamentary.
Parliament adopted and began implementing the new National Assembly Rules. The process was initiated in the Fourth Parliament and the finalisation became increasingly urgent during the Fifth Parliament to address gaps that were exploited and exposed by political parties. Some of the changes deal with the governance of the House business, decorum, and mechanisms to strengthen oversight over the executive. The NCOP and Joint Rules need updating and these will be looked at next year.
Parliament’s labour concerns continued this year. Earlier this year, the CCMA dismissed NEHAWU’s argument that the administration's decision to reduce the performance scores of employees last year constituted unfair labour practice. Later in the year, the union embarked on an unprotected strike. This was short-lived following discussions with management of Parliament facilitated by the CCMA. Suspended staff were restored and those facing disciplinary processes were given written warnings. According to media reports, there is an uneasy peace and further industrial action is not out of the question.
The ANC held its mid-term review. At this gathering, a commitment was made to “regain moral high ground, vigorously advance clean governance, champion the fight against corruption, shun incompetence and decisively deal with ill-discipline”. The DA held its mid-term parliamentary caucus elections and individuals of varying seniority and repute were appointed to leadership positions.
There are new faces in Parliament following redeployments, several resignations and deaths. In addition, parties have shuffled their members around resulting in several MPs having to get used to new portfolios.
According to the Code of Conduct for MPs, they are supposed to submit their financial interests to Parliament annually - at a time determined by the Joint Standing Committee on Ethics and Members’ Interest. This information is then published and made available to the public in the same year. It is always interesting to comb through the data to see who owns what, how many gifts they receive and from whom and how many shares and directorships they have. Parliament normally adheres to this but has failed to do so this year. It is unclear why this is so but a combination of a shortened programme and the resignation of the Registrar of Members’ Interest are likely answers.
As part of a new oversight mechanism, the Joint Standing Committee on the Financial Management of Parliament was created to replace the Parliamentary Oversight Authority. This structure used to operate behind closed doors but is now open to the public. The new committee has the mandate to call any Executive Authority, Accounting Officer and any official of Parliament to appear before it; and to maintain oversight of the financial management of Parliament. A galaxy of heavyweight MPs serve on the committee. It has been instructive to see that Parliament is guilty of the same issues they often lambast departments about. In a meeting on Parliament’s 2015/16 Annual Report, the Committee noted with concern that although the institution only succeeded in meeting 16 of the 33 targets it had set for the period under review, it had over-spent on its budget. The institution also has a high vacancy rate.
Parliament has sustained its audit outcome of unqualified with no findings for the past two years.
Meanwhile, the legislature released its first term programme and the agenda is packed with activities. Some of the highlights include oversight and legislative work, SONA and the ensuing debate, questions to the Executive, the Budget Speech, and committee work. We are at the midway point of the lifespan of the current Parliament and some of its objectives are beginning to take shape while a lot of catching up is needed in other areas.