During the unveiling ceremony of the Key Pillars of the Constitution at Parliament on 19 March 2019, President Ramaphosa quipped that he hoped that these founding values were not being trampled upon. Strangely Parliament had seen fit to place the inscriptions of these Key Pillars on the steps at the entrances leading to the National Assembly and National Council of Provinces buildings. Both entrances boast actual pillars or columns which might have provided a more appropriate setting for the inscriptions, making them both more visible and prominent.

In many respects this summarises the tenure of the Fifth Parliament. They are aware, or have been made aware by citizens, civil society groups and the courts, of their constitutional responsibilities, but have found inelegant and clumsy ways of undermining them while claiming to abide by the nation’s founding governance document.

Parliament started its fifth term by re-electing Jacob Zuma as President despite the damning findings against him in the Public Protector’s Report, “Secure in Comfort” regarding the state-funded improvements at his Nkandla homestead. While that report was published in the latter stages of the Fourth Parliament in 2014 (co-incidentally also on 19 March), Parliament dealt with it after the 2014 elections. It became a saga that, together with the presence of the EFF in the National Assembly, in many respects defined the Fifth Parliament.

The disruption of parliamentary proceedings, spurious points of order, chants of “Pay Back the Money”, violent confrontation in the Chamber, the deployment of Parliamentary Protection Officers all conspired to deplete the dignity and decorum of Parliament while simultaneously and ironically boosting public interest in its proceedings. Much of this can be attributed to Parliament’s failure to effectively and meaningfully process the Public Protector’s Report on Nkandla, a failure that was confirmed by the Constitutional Court when the EFF and others challenged Parliament’s handling of the matter in the courts. The Court ruled that the resolution passed by the National Assembly absolving Zuma from having to pay for the non-security upgrades at Nkandla was inconsistent with the Constitution and therefore invalid. While Zuma did ultimately pay these costs with a loan from the notorious VBS Bank, Parliament took no further action against him. Nor did it conduct any meaningful introspection as to why it had failed in its constitutional duty; perhaps because the result would have been an inconvenient truth - that it had deliberately trampled on our constitutional values and principles to protect one person.

The majority party crudely used its numerical advantage to slam the door in the face of reason and constitutional principle. There are probably many in the ANC benches who are embarrassed about the role they played, but the damage has been done. They took their cue no doubt from the former president himself, who told opposition MPs that the majority enjoyed more rights than a minority, a clear and unambiguous trashing of the constitutional values. The majority do indeed have the right to rule but must do so in a manner that respects the rights of minority voices.

The entrenchment of the domination of majoritarianism in a multi-party forum such as Parliament was perhaps signalled early in its term when the presidium of presiding officers for both houses was elected. For the first time in the democratic era, this presidium failed to this presidium failed to include any members of opposition parties. The previous practice of including opposition members in the presidium fostered a culture of respect for the impartiality of Presiding Officers, and decorum in the House.

The Speaker of the National Assembly, Baleka Mbete, in particular appeared to go out of her way to shield the President from robust and probing questioning by opposition MPs. This led to the unprecedented tabling of a motion of no confidence in the Speaker herself. It also provided fuel for the fire lit by the EFF who soon realised that they could provoke the Speaker into making partisan rulings in favour of the executive.

Deference to the executive was epitomised by the ‘signal-jamming’ saga that blighted the State of the Nation Address in 2015, a matter that the Supreme Court of Appeal ruled was unlawful. The increasing levels of securitisation that were put in place both within the Chambers and outside the precincts were far removed from what a “People’s Parliament” ought to be.

CASAC convened a Roundtable discussion in June 2015 to reflect on some of these challenges facing the national legislature, with participants including former Presiding Officers and former MPs. The meeting noted:

“There is a distinct trust-deficit between the political parties in Parliament which is rendering the institution dysfunctional. There is a lack of conventions or implicit agreements that allow for and facilitate the functioning of Parliament as a contested political terrain. This trust-deficit has led to parties being over-zealous and combative in their dealings with one another. Rigorous debate on substantive issues has often been eschewed for political skirmishes over procedural and ‘rule-based’ issues. Parties need to be afforded the deliberative space to execute their constitutional mandate to provide a forum for national debate, hold the executive to account and pass legislation”.

The meeting also noted the debilitating effect that a dysfunctional Parliament could have on other institutions of governance. This has been demonstrated through the weakening of other key state organs, resulting inter alia in enabling the state capture project to take root and flourish.

A further feature of the Fifth Parliament has been increasing ‘lawfare’, where the courts have been drawn in to settle Parliament’s internal issues and other political disputes. This judicialization of political discourse, further weakened Parliament and brought the courts into the political terrain. The principle of the separation of powers was tested vigorously, and the judiciary was required to make rulings while respecting the autonomy of the legislative branch of government.

The dysfunction of Parliament is also highlighted by its accounting officer, the Secretary to Parliament being on special leave and then on suspension since June 2017 following a series of allegations of financial misconduct. The departure of several senior staff members points to a poor management culture at the institution with staff morale reaching crisis proportions.

Perhaps the lowest point of the Fifth Parliament occurred on 14 September 2018 when Mr Lennox Garane took his own life in his office at Parliament. Garane called it a “protest suicide” not just because he was demoted and his contract was not going to be renewed, but because of the organisational culture of abuse of power at the institution. Parliament has failed to take any meaningful action, hiding behind an investigation into Mr Garane’s death that is nearing completion by the Public Service Commission – the new Parliament will be tasked with implementing its recommendations and establishing a culture of respect for human dignity and fair labour practices.

There were however some positive outcomes during the Fifth Parliament. Portfolio committee inquiries into the rot at the SABC and ESKOM, the establishment of the Office of the Information Regulator, the passing of the Party Funding Act come to mind. In addition the Speakers’ Forum set up a High Level Panel on the Key Assessment of Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe. It was mandated to review legislation, assess implementation, identify gaps and propose action steps with a view to identifying laws that require strengthening, amending or change. Although its report was finalised in November 2017, little has been done in processing the report and its wide-ranging recommendations dealing with strengthening Chapter Nine institutions, electoral reform, enhancing access to information, promoting the realisation of socio-economic rights and meaningful public participation in the legislative process. There is much there for the new Parliament to get its teeth into.

The system of checks and balances upon which our constitutional democracy is founded depends on each of the ‘links in the chain’ being equally strong and robust. Given what we now know about institutional degradation and state capture, the imperative for institutional rehabilitation is a refrain we hear as an antidote to the Zuma years. The Sixth Parliament needs to get its house in order to meet its considerable constitutional mandate, and live up to, and not trample, the Key Pillars of our Constitution:

• Freedom & Democracy
• Equality & Diversity
• Unity & Reconciliation
• Openness & Participation
• Oversight & Accountability
• Reconstruction & Development

Citizens and civil society organisations must remain vigilant to ensure that they do so.

Lawson Naidoo is Executive Secretary at the Council for the Advancement of the South African Constitution (CASAC). He was Special Assistant to the Speaker of Parliament during the First Democratic Parliament.

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