The Fifth Parliament held its first sitting on 21 May 2014, a fortnight after the general election on 7 May 2014. From the start, the Fifth Parliament fell beneath the shadow cast by the Public Protector’s report on the non-security upgrades at President Jacob Zuma’s family homestead at Nkandla. Adv Thuli Madonsela’s Secure in Comfort report was released just two months before the general elections. It found that the President had benefited unduly from the upgrades and required him to reimburse the state for some of the costs incurred.

Against this background, the National Assembly of Parliament took two crucial decisions – it reappointed the president of the ruling party, Jacob Zuma, as national President and head of the executive branch of the state, and it elected the chairperson of the ruling party, Baleka Mbete, as its Speaker.

These two decisions spoke volumes about the national legislature’s relationship with the ruling party. This relationship infused its understanding of its role within the context of the constitutionally-mandated separation of powers between the legislative and executive branches of the state, and of the practical meaning and implications of the ethical requirement of a separation between (ruling) party and state. In both instances, the majority of the members of the legislature implicitly signalled their appreciation of the realpolitik inherent in our current electoral system. According to that calculation, the party, rather than the state, reigns supreme, and the Constitution is a means to an end, rather than the supreme law that both that document itself and the Constitutional Court proclaim it to be.

The legislative branch of the state thereby failed to appreciate the ethical implications of a conflict of interests, and it reaped the whirlwind.

Consider Parliament’s Strategic Plan for its Fifth Term, signed off by the National Assembly’s Speaker and the National Council of Provinces’ Chairperson in February 2015. Its new Vision was to be –

‘An activist and responsive people’s Parliament that improves the quality of life of South Africans and ensures enduring equality in our society’ (Parliament, 2015: 8) (emphasis added).

According to just about any report one reads, from the High Level Panel Report, to a World Bank Report, to StatsSA, we’re more unequal than ever.

Its new Mission declared that ‘Parliament aims to provide a service to the people of South Africa by providing the following:

… Effective oversight over the Executive by strengthening its scrutiny of actions against the needs of South Africans …’ (Parliament, 2015: 9)(emphasis added).

With somewhat ironic prescience given subsequent developments, the Strategic Plan elaborated that –

‘Accountability is essential to democracy. There are several weaknesses in the accountability chain, with a general culture of blame-shifting. The accountability chain has to be strengthened from top to bottom, with a strong focus on strengthening oversight and accountability. In any democracy the link between the Legislature and the Executive is critical for ensuring that government delivers, the Executive is held to account, that policies are subject to rigorous debate and that questions are asked when things go wrong’ (Parliament, 2015: 12)(emphasis added).

Ironic, because for much of the early part of its term, the National Assembly, led by the Speaker, sought to defend the indefensible precisely in order to shield the President from oversight and accountability. Little effort was spared in trying to ensure that the President did not have to ‘pay back the money’ despite the insistence of the Economic Freedom Fighters, the official opposition Democratic Alliance and other parties. In so doing, the National Assembly undermined its own constitutional authority to exercise leadership and to ensure oversight of the President and the executive as a whole, and it undermined the constitutional authority of the Office of the Public Protector (OPP), a Chapter Nine institution.

These actions demonstrate that the National Assembly failed to appreciate at least three things. Firstly, that it is an integral part of the ‘top’ that must strengthen the accountability chain. Secondly, that the OPP is its co-equal partner in exercising this oversight and ensuring accountability. Finally, the Assembly erroneously saw the ruling party, and not the Constitution, as the ‘top’.

In consequence, the Speaker and Parliament had several of their decisions taken on review to the Constitutional Court. On the first occasion, the Court was obliged to remind Parliament that it has the authority to lead and that it must exercise that authority to hold the executive to account - by passing rules necessary to impeach a president. On the next occasion, the Court was compelled to demonstrate the limits of Parliament’s (and everyone’s) authority - no-one may ignore the PP’s remedial action (including as concerned the President’s, and others’, accountability for public expenditure on Nkandla) or treat it as mere advice.

On another occasion, the Court held that the Speaker has the authority to hold a secret ballot, including when Members were asked to vote on a motion of no confidence in President Zuma. After a series of open votes on such motions, which were all defeated, with Members of the ruling party mostly voting strictly according to a three-line whip, the Speaker scheduled a secret ballot. This motion was also defeated, albeit by a narrower margin, indicating that a number of ruling party MPs recognised their constitutional responsibility to exercise leadership to ensure executive accountability.

These rulings punctuated ongoing disruptions to Parliament’s proceedings by the EFF and other opposition parties, notably when President Zuma was due to deliver his State of the Nation addresses and when he sought to comply with his duty to account to Parliament by answering Members’ questions. Such was the scale and extent within the House of public representatives’ dissatisfaction at the lack of accountability, and the ensuing discord and disruption, that the Speaker and her deputy lost control of proceedings on several occasions. Despite denials, it is widely accepted that the Speaker ordered the use of plain-clothes police to exert unlawful force on Members inside the House and within its precincts. On a later occasion, President Zuma went further and ordered the deployment of the South African National Defence Force to support the police. Professor Pierre De Vos described it as the use of intimidation that tried unsuccessfully to instil a climate of fear in the elected branch of the state (De Vos, 2017 ‘… bullets trump ballots’).

All of these actions and decisions by the National Assembly and its senior office-bearers were efforts to resist oversight and accountability, indeed, to invert it.

However, about midway during the term of the Fifth Parliament a number of other factors, in addition to the court decisions and Members’ no-confidence motions mentioned earlier, began to combine to turn the tide in favour of more rigorous and assertive oversight. Firstly, in October 2016, the Public Protector released her final report – State of Capture – shortly before the end of her own term of office. Secondly, in response to the Public Protector’s report, and with a new understanding of the authority of that Office, Parliament tasked four portfolio committees to undertake inquiries into aspects of state capture. Two committees were particularly energetic and worked effectively in a largely non-partisan manner – the Portfolio Committee on Public Enterprises, which inquired into management, operational and contractual issues at Eskom, and the Portfolio Committee on Home Affairs, which investigated the naturalisation of the Gupta family. These inquiries began to lift the lid on the scale and extent of state capture. Thirdly, the PP’s report, these parliamentary inquiries and the series of (unsuccessful) motions of no confidence in President Zuma culminated in his resignation on Valentine’s Day 2018.

Significantly, however, the resignation was not at the instance of Parliament, but rather at the behest of the ruling party.

History was repeating itself, the ‘two centres of power’ that had highlighted the tensions within the ANC under the leadership of then-new party president, Jacob Zuma; ultimately saw the departure of the country’s then-President, Thabo Mbeki. Similarly, after the ANC’s electoral conference in December 2017 promoted Cyril Ramaphosa to party president, the country’s president appeared to lose his grip on power and his resignation soon followed.

When the country’s newly-minted President Ramaphosa delivered his first State of the Nation Address, he declared a “New Dawn” and challenged all South Africans to join his response to the call of national duty by echoing “Thuma mina” – “Send me”. The President seemed to identify and reinforce the national mood, apparently initiated by Members of Parliament whose exercise of their oversight functions seemed reinvigorated as at least two of the four committees pursued their inquiries with cross-party fortitude.

Again, however, we have seen this before. Previously, when the end of a parliamentary term has approached, particularly when coinciding with the end of presidential terms, there has been a noticeable opening up in Parliament – and a greater assertiveness and vigour in the exercise of Parliament’s oversight of the executive. Usually, the greater assertiveness by MPs at the end of their term has been driven by two considerations. First has been the upcoming election. MPs have responded to the need to show that the ruling party is able and willing to hold itself accountable for problematic issues that have surfaced since the previous general election. Second, some MPs know that, either for reasons of their own choice or because they have fallen out of favour with the ruling party, they will not be returning to Parliament after the next elections. They have been emboldened as they no longer feel obliged to toe the party line and can more freely exercise their conscience.

This time, however, slightly different considerations appear to be at play. It has become clear that MPs’ assertiveness was not uniform. Might this explain the relative lack of progress of the two other parliamentary inquiries, those by the portfolio committees on Transport and on Mineral Resources? Might this explain, too, the fact that Parliament has not held accountable, for example, two members of the executive who plainly have a case to answer, such as Bathabile Dlamini, who was found to have lied under oath, and Nomvula Makonyane, who left the Department of Water and Sanitation bankrupt? Perhaps the more muscular oversight was, instead, enabled and driven, at least in part, by intra-party factionalism within the ANC. Certainly, factionalism has been evident in the accusations and counter-accusations, narrative and counter-narrative emerging in court battles, in the media, before the Zondo Commission of Inquiry into State Capture, and in the questionable choices in the composition of the ruling party’s 2019 electoral lists.

What is to be done?

At least three things need to change in order to ensure the qualitative improvement of parliamentary oversight.

Firstly, the person elected as Speaker should not be organisationally inclined to protect the President or anyone in the executive. Judith February has observed that Max Sisulu, Speaker in the Fourth Parliament, was less partisan and therefore more effective (February, 2014). Thus, a Speaker without such a strong conflict of loyalties and interests could have meant that state capture may have had less authority and opportunity to flourish.

Secondly, our electoral system must change. At present, the closed party list proportional representation electoral system ensures that political parties exercise effective control over the jobs and careers of MPs, and therefore over their choices. The drafters of the Constitution agreed that after the first democratic election, the electoral system should be reviewed. It was, by the late Van Zyl Slabbert’s Commission of Inquiry. If Parliament had adopted its recommendations, then at least some MPs may have felt greater accountability to their constituents than to their party bosses, and executive abuse of power, as manifested in state capture, may have been prevented or curtailed.

Thirdly, Parliament needs to revisit the recommendations by its own Committee of Inquiry into constitutional institutions supporting democracy, chaired by the late Professor Kader Asmal. Those recommendations included the need for Parliament to do two related things – treat Chapter Nine institutions as independent partners in ensuring effective oversight and accountability, and give proper consideration to their reports.

Gary Pienaar is research manager with the Democracy, Governance and Service Delivery research programme at the Human Sciences Research Council. He is an advocate at the Johannesburg Bar.

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