ATC230629: Report to the First Report of the National Assembly Rules Committee on Recommendations of Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, Including Organs of State, Dated 22 June 2023

Rules of the National Assembly

Supplementary Report to the First Report of the National Assembly Rules Committee on Recommendations of Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, Including Organs of State, Dated 22 June 2023

 

The Speaker, as Chairperson of the Rules Committee, hereby tables the Supplementary Report to the First Report of the National Assembly Rules Committee on Recommendations of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State (“the State Capture Commission”), dated 22 June 2023.

 

A.        Introduction

 

The Constitution of the Republic of South Africa, 1996, obliges the National Assembly to scrutinise and oversee executive action, maintain oversight of the exercise of national executive authority and to ensure that all executive organs of state are accountable to it. Pursuant to this obligation, the Assembly Rules empower the Assembly and its committees to summons persons to appear before them. Moreover, in terms of the rules, portfolio committees are empowered to “monitor, investigate, enquire into and make recommendations concerning” the exercise within their portfolios of national executive authority and to conduct public hearings. Notwithstanding these powers and the oversight mechanisms developed over the years by the Assembly, the State Capture Commission found that Parliament had largely failed to exercise its oversight and accountability mandate during the years of state capture or exercised ineffective oversight. It reported to the President who tabled the report in Parliament on 23 October 2022.  The State Capture Commission made several recommendations to enhance parliamentary oversight and improve executive accountability to Parliament.

 

The National Assembly Rules Committee (the Rules Committee) convened on 23 November 2022 to reflect on the State Capture Commission’s recommendations and referred certain matters to the Subcommittee on Review of Assembly Rules (the Subcommittee). The Rules Committee met on 25 April 2023 to deliberate on the report of the Subcommittee in respect of the State Capture Commission’s concerns and recommendations. In so doing, the Rules Committee noted the ongoing work in respect of certain recommendations, but also pronounced itself on certain matters. It hereby reports to the Assembly on its deliberations and progress made.

 

B.        Recommendations of the State Capture Commission

 

The State Capture Commission opined that weaknesses in parliamentary oversight and Executive accountability had, over time, contributed to corruption and maladministration and therefore recommended that Parliament consider reforms to improve its procedures. These included procedures concerned with –

1. House resolutions emanating from oversight activities and responses thereto;
2. Executive reports and submissions to Parliament;
3. Executive attendance;
4. The selection of office-bearers in state institutions;
5. The establishment of an oversight committee over the Presidency; and
6. The appointment of committee chairpersons.

 

The State Capture Commission recommended that several issues could be provided for in law, and/or Parliament’s rules. Subsequently, Parliament undertook research on international practices and specifically whether other countries had comparable laws. The research found that, from the 12 countries surveyed, none had statutes which dealt with all the subjects identified. The research nonetheless concluded that, in many countries, there was a growing demand for an improvement in parliamentary oversight. The Rules Committee agreed that, as a general point, legislation would not necessarily serve to address all the challenges identified by the State Capture Commission. Moreover, as oversight was the responsibility of both Houses, the option of legislative change would finally belong with the Joint Rules Committee. At the same time, rule amendments could, where appropriate, be developed.

 

The Rules Committee noted that, while the question of legal reform of the kind advocated by the State Capture Commission was not desirable at the moment, it could be considered as a legacy matter. Furthermore, the Subcommittee was directed to develop rules and/or guidelines in relation to some of the matters described hereunder.

 

C.        House Resolutions and Executive Reports

 

The National Assembly is routinely asked to take decisions on matters brought before it, such as recommendations emanating from committee oversight reports. Once adopted, these recommendations become House resolutions.  Some resolutions are binding, whereas others, owing to the separation of powers, are not. Accountability nonetheless demands that members of the Executive respond to Parliament to report on remedial actions taken.

 

The State Capture Commission indicated that the Executive had not always taken account of parliamentary resolutions and reported thereon, and therefore urged Parliament to take steps to address this. Members concurred with this proposition but noted that some challenges with the implementation or otherwise of resolutions had their origin within Parliament, not only with monitoring, but with the technical nature of the resolutions themselves. Consequently, the rules should also offer guidance in this respect.

 

The Rules Committee agreed that the rules and/or guidelines should address the following –

 

(1)      Recommendations emanating from committee activities, insofar as they should be substantiated and specific (e.g., include timeframes) and relate to a matter within the purview of the Assembly;

(2)      The Speaker to maintain a record of resolutions and, in the event of a delay, liaise with the Leader of Government Business (LOGB); and

(3)      The Speaker to report to the Rules Committee twice a year on the status of responses.

 

In the case of Executive reporting –

 

1. The Executive to report to Parliament on measures emanating from resolutions within the timeframes prescribed in the resolution or, in the event no timeframes have been given, it should respond within 60 days;
2. In the event of a delay, a Minister should inform the Speaker of the reasons, and provide a reasonable timeframe within which a full report can be provided; and
3. The LOGB to submit an annual report to the Speaker on the status of Executive compliance with resolutions, for inclusion in the Speaker’s report to the Rules Committee.

 

The Subcommittee was mandated to draft the appropriate procedures in this regard.

D.        Executive Attendance

 

The Constitution and rules envisage that Ministers and Deputy Ministers should, as part of their accounting responsibilities, attend Parliament and its committees. The State Capture Commission gave weight to the assertion that the Executive had, on occasion, failed to appear before Parliament without adequate cause. It recommended that non-attendance by Ministers and others should not be tolerated and that legal consequences should result from such eventualities.

 

In terms of attendance, the Rules Committee observed that the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 (Act 4 of 2004) (the Act) already made it an offence for any person to refuse a summons, refuse to give evidence or willingly mislead Parliament – such actions being considered contempt of Parliament. At the same time, invoking the Act had always been considered a means of last resort, and it was preferred that Parliament and the Executive cooperate before sanctions were pursued. In this regard, the Rules Committee noted that the Sixth Parliament had taken measures to facilitate Executive attendance.

 

The Rules Committee acknowledged that the Sixth Parliament had taken steps to facilitate co-operation between Parliament and the Executive. The Committee concluded that there was no need for additional legislation or rules.

 

E.         The Appointment of Office-Bearers in State Entities

 

The Assembly plays a role in the selection of several office-bearers in State institutions. In most cases, based on correspondence alerting the House to a vacancy, the relevant committees consider and select candidates to be recommended for appointment. While these processes have been, for the most part, transparent and systematic, there have been concerns about practice. The State Capture Commission accepted the observation that candidates for office must be subjected to a high-level of public scrutiny and be appointed based on merit and recommended, inter alia, that Parliament consider legal reforms to this end.

 

The Rules Committee noted that the option of legislative review may not resolve the challenges alluded to by the State Capture Commission. Moreover, there were already laws and best practices concerning the selection of certain office-bearers and that all appointments must be based on merit. If necessary, further procedures could be considered in the future insofar as these could support conformity.

 

F.         Oversight over Vote 1 – The Presidency

 

Section 55 of the Constitution requires the National Assembly to, inter alia, “provide mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise of national executive authority, including the implementation of legislation.”

 

The State Capture Commission recommended that the Assembly consider establishing a committee to oversee those aspects of Vote 1 which were not overseen by existing structures. The Rules Committee also received correspondence from the Inkatha Freedom Party (IFP) (which predated the Commission) the Economic Freedom Fighters (EFF) and the African Transformation Movement (ATM) to this effect. In light of these submissions, the Parliamentary Budget Office (PBO) was requested to analyze Vote 1 to determine which aspects of the Vote were currently not subjected to scrutiny. The PBO analyzed the respective functions incorporated under Vote 1 and concluded that Parliament should strengthen its oversight over the Presidency, but that further research would be beneficial.

 

The Rules Committee resolved that the matter be considered as work in progress. The Committee further agreed that the desk-top research conducted by the PBO should be complemented with a fact-finding visit with a view to exploring international best practice in respect of the matter. In so doing, a firm foundation could be laid for the Seventh Parliament.

 

G.        Appointment of Committee Chairpersons

 

Every committee must elect one of its members as chairperson. The functions of chairpersons are determined by the rules. Most Assembly committees have been chaired by a member of the Majority Party, the Standing Committee on Public Accounts (Scopa) being an exception. Scopa is, by convention (as opposed to a rule) chaired by an opposition member. The State Capture Commission recommended that parliamentary oversight may be better served if more chairpersons were elected from minority parties.

 

The Rules Committee did not agree with the view expressed by the State Capture Commission but reiterated that Section 57 of the Constitution (1996), empowered the Assembly to determine its internal arrangements, proceedings and procedures.

 

 

Report to be considered.