The South Africa government, just like most other democracies in the world is made of the executive, the legislature and the judiciary. Unlike other Commonwealth countries however, South Africa legislative and executive powers do not rest on the national level only, but are devolved to provincial and local levels. The constitution defines these spheres of power as “idiosyncratic, co-dependent and Interrelated” (Calland 89).
The constitution of the country states that co-operative governance is best suited for the country (Calland 90) and hence leaders of the country are drawn from both provincial and national levels. For effectiveness, it is proposed that the three arms of government should be interconnected, but should have some level of independence from each other (Calland 88). In these three arms of government, separation of powers is needed in order to avoid overlapping the powers of the three different entities (Mostert, H 125).
Accordingly, the legislature has the basic mandate of limiting fundamental rights through formulating and enacting laws, while the judiciary is charged with protecting the fundamental rights of the South Africans. The high court, the supreme court-of-appeal and the constitutional court falls under the judiciary. The executive holds the office of the president, who serves as the head of the state and as the head of the South African government (Houston 151). It also has the deputy president and government ministers. The three arms of government are subject to the laws of the country as spelt out in the country’s constitution. This paper will discuss the forms of power vested on the legislature vs. the executive. The paper also discusses how the two either compliment each other or act as hindrances to maximum performance to the benefit of South Africa.
A 2002 study done by Roefs & Lieberg (cited by Aliber 37), revealed that 73 percent of the South African populace have no clear understanding of the role of parliament, and while 80 percent had minimal understanding of the South African Local councils. As such, one gets the impression that the populace is ignorant towards the duties of their elected leaders hence lacking the capacity to push parliament members to address the issues that affect them.
According to schedule 6A of the South African constitution, the National assembly should have a minimum of 350 and a maximum of 400 elected members. The members should be voted through the set electoral system, which is provided for in the national legislation, based on a voters roll and which represent a proportional representation of the South African people (info.gov.za).
In addition to the members of the national assembly, the South African Legislature also includes members of the National Council of Provinces (NCOP). Members of the NCOP represent the administrative provinces in such a way as to ensure that the interests of the provinces are discussed and addressed by the government. To understand the provincial concerns, NCOP members organize national grassroots forums where they get to know issues that affect the provinces. The powers of the national assembly and those of the NCOP are separated such that, the National assembly handles governance issues on the national sphere, while the NCOP handles legislation requirements on the provincial sphere (info.gov.za).
The national council of Provinces has 10 delegates from all South Africa’s 9 provinces (Houston 151). Just like the elected members of parliament, the NCOP delegates serve for a five-year term. Four of the delegates in each province are appointees of the premier, while the remaining six delegates are appointed in accordance to section 61(2) of the South African constitution. When making decision, each NCOP representative is entitled to a single vote, unless where the constitution states otherwise. It is also the constitutional duty of NCOP to facilitate public participation before the legislature can start deliberating on issues arising in the provinces (Ngcobo, J). By doing this, the elected representatives ensure that the public also plays a role in the legislative process. Before the NCOP came in to being, South Africa had a senate, which did nothing much to address regional interests. NCOP is mandated with safeguarding linguistic and cultural traditions in the country, while protecting the ethnic minorities (Houston 155).
The President of South Africa must be an elected member of the National Assembly, and is usually the political party leader for the party, which wins majority seats during a general election. The legislature in South Africa makes the laws, supervises the performance of the executive and the judiciary and has the mandate of changing laws when the need arises (Hatchard Et al 195).
The current powers in the South African legislature only came into being after the Apartheid regime seized powers to the Nelson Mandela-led ANC in 1994 ( Hartchard Et al199). Starting 1996, a parliamentary support program was initiated with the sole aim of improving the overall functions of the nation parliament and nine local legislatures. During apartheid, the legislature was used as a ratifying institution that would approve decisions passed by the executive (Murray and Njizink 101). Right after ANC took over power from the apartheid regime, the same problem persisted especially because the parliament was predominantly made up of ANC members (Lodge 11).
The Parliamentary Support Program was intended to provide technical support to the legislature and promote closer relations between legislatures and the public. The local legislatures were formed in 1996 to replace the senate with the aim of encouraging closer working relations between the government and the citizenry. The local legislatures had two basic mandates: to ensure that official documents addressing issues affecting the citizenry were written in plain and understandable language, and to ensure that the public participated in government campaigns that affected the country’s well being (EU-PSP).
The provincial legislatures have played a vital role in consolidating the participation of the public and democracy in South Africa. As such, they have been credited with supporting democracy and good governance in the country, which until the early 1990’s, was still under apartheid rule. However, many questions have been raised about the real power that the legislature holds. Some critics refer to it as ANC’s rubber stamp (Barkan 4). Other people however disagree with this view and maintain that the legislature is an independent institution.
According to Ottaway 2003 (cited by Barkan 5), conventional wisdom dictates that multi-party elections do no necessarily guarantee that the power that takes over governance will enact a liberal democracy. In South Africa’s case and despite elections that were deemed as ‘free and fair’ every five years since the Apartheid regime ceded the ruling powers to ANC, did not guarantee that the country would get an autonomous legislature. An autonomous legislature is the trademark for liberal democracies (Barkan 5) and has the capacity to carry out collective functions set out for it. Under liberal democracies, the legislature facilitates horizontal accountability in government agencies, therefore ensuring accountability in government institutions by countervailing power (Barkan 5). Since multi-party are the only proven method through which the citizenry of a specific country can choose a democratic government, it thus becomes a necessary condition of establishing the legislature. In most countries however, multi-party elections have proven to be an insufficient way of ensuring that the legislature is autonomous.
Powers of the SA Legislature
Ideally, the SA legislature should be an autonomous arm of government that not only makes the laws to be en trenched in the constitution, but also capable of countervailing powers and when necessary, keeping the executive arm of government in check.
Being a liberal democratic parliamentary democracy, the South African parliament can also call the executive to account unlike the presidential system, where the executive and the legislature are elected separately. In the presidential system, the legislature can also hold the executive into account although the impact of the legislature on the executive is less especially because their powers and functions do not overlap (Callad 46). The mandate of the legislature includes calling on all its members to vote on bills and formulating checks and balances for the executive.
Amending and passing legislation
Only a handful of bills in South Africa are moved by private members. Most of the bills thus originate from the executive. Of these bills, averages of 77.5 percent are amended by the legislature (Barkan 12). This especially happens in major pieces of legislation that affects government policies or those that include contentious proposals. Bills in the national assembly are moved by either a cabinet minister or a private member. After the first reading, a portfolio committee reviews the bill and makes amends where necessary. The bill is then introduced to the national assembly for the second reading and later to the upper house and finally to the NCOP for assent. This process can take up to two years.
Through out autonomous democracies, independent legislatures, that succeed in impacting policy-making have well-developed ministerial or portfolio committees (Barkan 14). Such committees shadow ministries, agencies and departments, which are vested with executive powers. Weak legislatures on the other hand, lacks ministerial or portfolio committees or where present, they lack the capacity of participating in the making or passing of legislation (Barkan 14). South Africa’s legislature falls in none of the two categories but have characteristics of both. By 2004, the legislature in this country had 25 committees. Most members of these committees were drawn from ruling ANC due to the political party’s majority presence in the national assembly. Members of some of the smaller parties have to participate in more than one committee although their contribution is often overwhelmed by ANC.
Under the constitution, the national assembly should also provide mechanisms that ensure that the executive is accountable to the legislative (info.gov.za). The legislature also has the mandate to oversee the implementation of the executive authority on the national sphere. It is also the duty of the South African legislature to oversee the performance of all organs of the state (info.gov.za).
Passing or modifying legislation that seeks to maintain the national security of the country, uphold economic unity and maintain all the necessary national standards are also powers vested on the legislature by the constitution. The national assembly should also prevent provinces to take actions that are prejudicial to other provinces in order to uphold the interests of the country as a whole (info.gov.za).
In South Africa, the Cabinet has proven since 1994 that it is the principal source of executive authority. The cabinet is however accountable to parliament. Nevertheless, the tragedy in an ANC dominated parliament is that the cabinet and the legislature often overlap when on the floor of the national assembly (62).
According to Callad (86), the South African government is a classical example of the governance theory where by, it is assumed that the legislature writes and passes laws, while the executive implements the same, and the judiciary enforces the same laws by overseeing compliance. The author however notes that much as this theory was applicable in the 19th century, modern governance is more complex, thus vesting more powers on the executive and consequently leading to less powerful legislatures.
The South African legislature’s primary role is making laws. Beyond that, real government power is taken up by the executive, which decide on vital decisions such as resources and budgetary allocation. Often times, this happens because the legislature lacks the real knowledge required to enforce the decisions. Eventually, this has led to a situation where the legislature follows the directives of the executive rather than the opposite happening (86). The south African context is especially tricky since the executive is predominantly ANC, which is the same case with the legislature. When the directives are set by the executive branch, the majority of ANC legislature members support their party leader (who is the president).
The one-party overriding political system has been part of the South African government since 1994. In the 1994 general election, ANC accounted for 62.5 percent of all members of parliament. In 1999, this percentile rose to 69.7, while in 2004, the party won 279 seats against 121 seats occupied by opposition parties (Barkan 6). Further serving the executive agenda is the fact that the opposition parties in the country are fragmented. In total, the country has 11 opposition parties, with the largest party winning 70 parliamentary seats, while the remaining 10 parties collectively won 71 seats (Barkan 6).
Another reason cited by Barkan (7) as the main reason why the South African legislature has ceded its autonomy to the legislature is the way that elected legislature members gain their party positions. In the 2004 election, 200 members were elected on the national front, while an equal number were elected from the provincial level. The party leaders control the various ranks the affiliated party candidates vie for on both the national and provincial rank. This means the candidates is successfully elected will have to abide by their parties directives. ANC is cited as most notorious regarding demanding party compliance from its members (7). This is even worse because parties can lower the party position of a member who refuses to abide by the party directives. In a country where party affiliation determines whether a candidate is elected to the national assembly or not, not toeing the party line could cost one his or her political career.
The fact that ANC has over the years become a centralized organization, which vests most of it powers on the president is also another major risk that is compromising the autonomy of the legislature. This is because ANC is the majority party in parliament, which practically means that it sets the agenda in the legislature. This agenda is influenced by the National executive committee, which sets the policy for the cabinet. Since the president chairs this committee, it is apparent that executive influence is inevitable on the cabinet and by extension the legislature through the ANC members of parliament.
The South African parliament is rather peculiar when compared to other parliaments in Africa. During the first Nation Assembly session after a general election, the first task of the members of parliament is to remove the newly elected president from the national assembly membership. He thus seizes to be a member of parliament the moment he is elected president (86). His influence in the legislature through the ministers and members allied to him is however still evident.
Under section 79 of the South African constitution, the President must either assent to a bill passed to him by the legislature or refer the same back to the national assembly if he has reservations about it. In such circumstances, the national assembly, which includes NCOP, reconsiders the bill based on rules or orders set out by the legislature and revert it back to the president. Should the president fail to assent it, he refers it to the constitutional court. If the court deems the bill unfit for inclusion in the constitution, then it is dismissed, but if the constitutional court approves it, then the president has no choice but to sign it into law (info.gov.za).
Under Thambo Mbeki’s reign from 1999 to the period of his resignation in 2008, the South African parliament has received many critics with critics commenting that the president had so much power, leading to uncontrolled growth of the president’s office. Consequently, parliament lost its powers because it was only treated as a place for low-level debate, where cabinet ministers and the president failed to go. The Mbeki administration, was also accused of preferring political stability over parliament ethics and the tenets of democracy (Daniel 2 cited by Daniel Et al 38), which was a reminder of apartheid South Africa under PW Botha (1978-1989). During his reign, Botha the parliament as well as the cabinet were drawn to the decision making periphery. As such, the decision making for the entire country lay squarely on the president’s shoulders, whereby he created parallel security structures that centralized the management of the country to his office thus making him the only decision-making entity in the country
The staff of legislative institutions
SA parliament is made up of various office serving different purposes in the institution. The most prominent office is that of the speaker, followed by that of the chairperson who is drawn from NCOP. The leader of government business is also an office bearer in parliament as does all ministers, deputy ministers, chief whip and the whips. Other office bearers in parliament include committee chairpersons, NCOP provincial delegation and all the members of parliament, which include members of South Africa’s national assembly and NCOP members (parliament.gov.za).
Office of the Speaker: It contains presiding office bearers who manage the affairs of the national assembly. They include a speaker, a deputy speaker and three house chairpersons (Parliament.gov.za). The speaker is elected from amongst the members during the opening house sitting after a general election. He or she can be removed from office through resolution. When such happens, members must elect another speaker to fill the vacant position. The election of the speaker is presided over by the chief justice of the country. After election, the speaker acquire two-fold mandate; one provided for in the constitution under section 52, while the other part of his mandate is provided for by institution of parliament (parliament of South Africa). The speaker oversees debates that take place in the floor of the house in order to ensure that the members adhere to the parliamentary rules. His or her mandate further includes interacting with the global community on the international, continental, regional and national levels (Parliament of South Africa)
Together with the NCOP chairperson, the speaker of the South African parliament provides political leadership in the house, with an aim of ensuring that a joint-parliamentary program is developed. The program must have framework structures that provide for joint committees, executive committee, budget committee, officer’s forum and an oversight authority for parliament. In addition, the two oversee the speaker’s forum, which is a forum specifically for the legislative sector in the country (South African Parliament).
The speaker is responsible for the selection of councilors, committee members and the national assembly whips.
Leader of Government business: s/he or she is an appointee of the president. S/he is vested with the mandate of ensuring that the legislative programs are well organized and synchronized with the government business.
Chief Whips: They represent majority and the minority parties in parliament.
It is the role of the speaker, his/her deputy, the whip and the leader of government business to decide on the parliamentary program.
In 1998, Alec Erwin, the then trade and Industry minister lamented that South Africa despite having interventionist methods that could spur its economic growth, was still held back by rules from the World Trade Organization (Marais 161). Still, there the legislature, which had the full mandate of making laws and proposing policies, lacked the enthusiasm and the
Like many upcoming democracies the world over, the South African parliament has attracted both criticism and praise especially the first 10 years after the country gained independence. People agree that parliament has changed significantly, yet others state that the changes have not been relevant to the South African cause (Reynolds 14). For such, their statement is clear: that the watershed moments in South Africa are not yet over. They maintain that the imbalance faced by parliament signals that the country still needs an important renaissance in its parliament. (14).
In 1994, South Africa introduced the nine provincial legislatures across the country. The make-up of these legislatures was largely influenced by negotiations that preceded the elections, which ushered in the post-apartheid system (Reynolds 16). This happened because the Inkatha Freedom Party (IFP) and New National Party (NP) managed to protect their power bases in their respective regions therefore promoting the decentralization of power. This also acted as an important draw card for the political parties, whose stars on the national level was not promising. As such, NP managed to scoop the premier’s position in Western Cape, while IFP managed the same in KwaZulu-Natal. Despite ANC’s dominance in the remaining seven provinces, the two parties were assured that they would have adequate representation in their respective strongholds.
The 1993 interim constitution was drafted by constitutional experts drawn not only from South Africa, but also from other countries. Experts were mainly drawn into the process in order to quell the tension that had built up in the politically divided country (Otttaway 106). The experts considered the will of the majority populace, political forces and policy makers. A constitution forum was set-up in order to mitigate the forces influencing the constitution process (Ottaway 104). In total, the constitution was based on 34 principles which were debated by the legislature. The principles however failed to address federalism and devolved government, an issue that was later addressed by a minimum of 10 principles that addressed power sharing between the provincial and central governments (Reynolds16).
In the 1996 constitution, federalism was maintained. However, analysts conclude that the type of federalism evident in the constitution is co-operative federalism as opposed to competitive federalism thus denying South Africa the effective federal governance. Critics also suppose that the political turmoil and financial instability in different provinces during the 1994-1999 periods was a clear indication that some provincial administration had failed in their administrative duties and thus marked gaping inadequacies of central and provincial management (Reynolds17).
According to section 124 of South Africa’s provisional constitution drafted in 1993, the country has nine provinces: Eastern Cape, Mpulamalanga, Northern Cape, KwaZulu-Natal, Northern Provinces, Free State, Guateng, Western Cape and North-West (17). The boundaries of these provinces were confirmed in the 1996 constitution. The South African parliament had earlier before acted as the stage where negotiations of the new constitution were initiated by F.W de Klerk in 1990. Before giving in, De Klerk was under intense pressure from international organizations and governments, which were averse to the apartheid regime (Ebrahim chapter 4). The United Nations was a dominant organization that was pushing for changes in the country while the United States and the United Kingdom governments’ were using their influential status in the world economy to push for change.
The final constitution launched in 1996 not only recognizes the important contribution of the Provincial legislatures, but also facilitates public participation. The public elected a parliament, which doubled as a constitutional assembly through out the constitutional making process spanning five years (Hart 7). The country, just like Rwanda, an east African country that democratically elected a constitutional commission, sought the input of the public through engaging the media and publishing constitutional issues in multiple languages hence making the issues known to a majority of the populace (Hart 7).
Analysts however agree that the large turnout that voted for the constitution in South Africa did so at the persuasion of their legislatures. The country’s constitutional assembly took up an initiative that sought to encourage the first-time voters to turn up in large number. Members took the campaigns to the grassroots where the told locals that they had so far made their marks in the country’s history, and that their time had come to dictate the way that the country’s leadership would steer the country towards (Hart 8). It was the role of the elected representatives towards educating the masses and documenting their views. In the period between 1994 and 1996, the constitution assembly got 2 million responses from individuals, advocacy groups, corporate organizations, the civil society and other stakeholders (Hart, 8).
The culminating event was the referendum, which marked the moment of truth for the white South African’s since the blacks, were the majority and supported the proposed constitution unlike the NP supporters, who felt that the constitution was not good enough for South Africa. The fact that country was taking the free-enterprise routes under the tenets of democracy proved to the white South African’s that they had to give up socialist practices and embrace the new political and economic system.
Bureaucracy in the South African parliament
The turn out of members of parliament into the debate chambers has always been impressive in South Africa. They debate issues with zeal and pass bills that to their understanding best fit the country. However, the fact that only bills sponsored by political parties sail through parliament, is among the most prominent sign that South Africa is still a bureaucratic country.
Political party sponsored bills are first discussed at the executive level, where the president and his ministers insert clauses that best fits the political, social and economic situation in the country. This is especially the trend in post-apartheid South Africa, and is a wide used tactic by the ruling ANC. Smaller political parties discusses bills amongst members, but for it to succeed, they must court the support of the executive, who in turn appeals to the affiliated members to support a bill (Reynolds 14).
Since ANC has the majority members in parliament, no bill can sail through parliament without support from the party. Should the executive decide that a bill does not serve its interests well, then, it has the capacity to disappoint the efforts of parties of individual members who moves bills in parliament (15).
Bureaucracy in the South African Parliament remains an open secret, since most members, even those who abhors it cannot pinpoint it, for fear of being ostracized by the party. As noted elsewhere in this paper, South Africa votes on party lines. Majority of the South African’s support ANC, but the smaller parties have minority support in some of the country’s provinces (15). Should ANC ostracize one of its members, then that person cannot gain people’s support however developmental minded he or she is. This explains why, most old parliamentarians keep being re-elected back to parliament (Reynolds 14), despite the presence of more energetic young people vying for the same positions.
In addition, ANC members must always consult with the party leaders before embarking on policies and strategies that may affect the party. Despite the constitution giving room for one of the best democratic societies in the world, the bureaucracy at party and executive levels, sip into the parliament, consequently having negative effects on democracy. A perfect example of such a scenario was the silence from parliament regarding constitutional silences during the constitutional making process between 1993 and 1996. None of the political parties, including ANC had any special interest on having the omissions addressed. The matter was advocated for by the constitutional court. (Burnham, M).
The leader of the Democratic Party (DP), Tony Leon in 1997 termed the parliament a Prague Spring (Reynolds 14), and although many people were quick to dismiss him, analysts agreed that although parliament had made significant changes since the apartheid era, it being controlled by ANC, which was slowly succeeding at making parliament a rubber stamp of the executive.
The fact that the South African government has received backing and financial assistance from outside donors such as the European Union Legislature Support Program further complicates the bureaucratic process. This mainly stems form the fact that the government is always cautious against enforcing policies that may harm the interest of their financial backers in the country. As such, ANC manipulates policies in order to ensure the interests of assistance agencies and their governments are protected.
EULSP provided the South African parliament with financial assistance amounting to 10 Million euros spread in three years. The funding benefited parliament as well as the provincial legislatures (Mbete, B).
External National priorities
(Case in point: the new competition policy in South Africa)
The South African parliament holds issues such as trade, tourism and bilateral relations as some of the issues of priority (Chetty 3). Regarding trade, the competition policy, which is also known as anti-trust policy passed through parliament in 1998 and was enacted in 1999. The act, was entrenched in the constituency, and was widely used to ensure that the interests of the public are addressed in bilateral trade. By doing this, the SA parliament ensures that the interests of both consumers and workers are balanced. Although the SA parliament realizes that competition is good for the local companies, since it acts as a tool of economic development, the competition legislation has a clause that protects local industries against unfair legislation (Chetty 3)
Before 1999, SA used a competition board that acted under an old act of parliament. The Act had guidelines for acquisitions, mergers, monopolies and restrictive practices in the business sector of the country (Chetty 4). The board was however subject to the direct manipulation of the trade and industry minister, who could either accept of refuse to take up recommendations presented to him or her by the board. In additional, the board could only review acquisitions that involved horizontal transactions thus limiting the restrictions it could place on the companies.
In short, the board had little independence from the government. This ultimately led to big companies in SA acquiring much of the businesses in the country. Consequently, much of the country’s wealth was concentrated in the hands of a few South Africans and a significant number of foreign investors (4). With sanctions being imposed on foreign investors, most of them sold –off their investments to the few wealthy entities in SA thus further creating consolidated wealth.
Upon assuming power in 1994, ANC promised that it would create an adaptive and sustainable economy (4). Through the ministry of Trade and Industry, the political party outlined strategies that it used in the economic transformation process.
The competition act was among the beneficiary of the party’s strategies. This was because the party was intent in decentralizing business ownership and opening its borders in order to encourage healthy competition. The parliament thus encouraged interaction between workers, the government and the business owners prior to forming the first draft of the act.
In parliament, members took notice of the shortcoming that was present in the old act. This formed the basis of their discussion. At the end, the new act has a clause that required pre-merger notification for all businesses merging their operations. Overall, the new act brought a new era of economic efficiency, business adaptability and international competitiveness (5). It also provides for investigations, evaluation and control of restrictive government practices hence giving South African’s more room to conduct business.
Goals and relationship of program to goals in the new competition policy in South Africa
During the policy formulation, the South African parliament set up goals and objectives for the competition act. They named the purposes and objectives of the act as follows:
Promoting efficiency, development and adaptability in the economy
Providing consumers with fair prices and more product choices
Providing employment to locals, therefore advancing the economic and social welfare of the SA residents
Expanding opportunities, that would allow SA to actively participate in the world market, while also allowing foreign competition to gain access to the SA market
Ensuring the Small, Medium enterprises have equitable opportunities in the economy
Promoting spread ownership of businesses especially amongst the disadvantaged population.
Rationales of connecting goals to activities (Case in point: the new competition policy in South Africa)
One of the outstanding goals in the competition act is the concept of upholding public interest in the business sector. As such, the act seeks to provide South Africans with equal opportunities in the economy (Morphet, L.). Second in importance is ensuring that economic ownership is transferred in favor of public interest. Steps to achieving these objectives are different. As such, the latter will require:
Analyzing mergers in order to determine whether it will lessen or improve competition in the country
Assessing whether the merger can be justified as serving the public interest
Determining the effect that a merger will have on the industry, employment and overall market competitiveness
Assessing the ability of the merged companies to compete on an international market
A case in point where these assessment rationales were applied is the merger between Tepco petroleum and Shell South Africa. The merger attracted the attention of the competition tribunal since some people claimed that one of the companies was owned by a person who had historical advantage in business ownership (Morphet L.).
Upon analyzing the allegations, the tribunal concluded that the allegations were inappropriate, and consequently suggested that parliament and commission set up to enforce the act should be extremely cautious in their zeal to support historically underprivileged investors. The ruling however was that whatever private companies pursue would not necessarily be advantageous to the country and the objectives of the act. In the end however, the tribunal ruled that the transaction did not warrant being imposed with conditions for the sake of achieving the objective that favors the public.
Measuring how effective bills and policies in parliament have been is done through observation and other evaluation methods set by the government or the relevant departments. In the example, relating to the competition law as used above, the government can use price parity evaluation to gauge how well competition manages to regulate prices in the domestic market (Benton s). Regarding the effectiveness of encouraging imports into the market, parliament can gauge the same using import-parity pricing and the effect it has on the domestic market. It is also the prerogative of the legislature to determine whether the effect on imports is affecting the local industries negatively (Benton, S)
The oversight role of the South African parliament
In the South African context, and unlike the conventional Westminster adaptation, oversight is the constitutional mandate granted to the legislature as a scrutiny and oversight tool over the executive and other organs of the state (Jenkins 7). Members of parliament ask questions to the executive, and the answers can either be written or oral. In 2007 for example, parliament asked the executive 2593 questions, which attracted 2813 replies (Parlaiment.gov.za)
The South African parliament adopted a new role entrenched in the institution’s strategic vision, which seeks to build an effective parliament for the South African people. To better perform its oversight duties, the SA parliament institutionalized communal participation. It was however noted that members of parliament needed to create capacity, collective action and competence in order to effectively undertake managerial duties of the legislature and its oversight functions (Jenkins 4).
Sections 55(2) (b), 42(3) and other provisions in the South African Constitution, the national council of provinces and the national assembly’s oversight roles are implied through several joint rules . In addition, a task team that has members from NCOP and the national assembly has the mandate to ensure that parliament adheres to its oversight roles as spelt out in the constitution (4).
The oversight duties of the legislature can take the form of formal or informal. They can also be strategic, watchful or structured scrutiny, which is mainly applied in the state budget by the executive and the upholding of the constitution by the judiciary (7). In addition to this, parliament oversight roles includes overseeing the management of government ministries for the purposes of ensuring that the citizens have better lives as a result.
The constitution has provided parliament with the power to oversee all state organs, which include the provincial and local levels of governance. For effective oversight functions, parliament set up parliamentary committees, which requests government organizations for briefings for purposes of fact finding or just confirming that they are adhering to set practices at the best interest of the South African people.
However, oversight is not easy job for the parliament often times because it involves vetting government expenditure in all government ministries and departments. As such, parliament has focus groups that govern the oversight functions. The role of these groups are conducting constitutional landscaping, auditing all state bodies that conduct public functions, analyzing oversight roles of democracy supporting institutions and review the oversight rules as stated in the constitution (Dowling, 6). The oversight focus groups are divided into two categories: the committee focus-group and the budget focus-groups.
The committee groups are mandated with drafting the oversight guidelines for use in ordinary committee, selected committees and portfolio committees. They are also mandated with planning the communication structures between the NCOP Members and their national assembly counterparts (Jenkins 6). Members of this focus are also mandated with drafting recommendations appropriate for record-keeping and monitoring, in addition to those relevant to capacity building in the committee.
The Budget focus group on the other hand is mandated with developing procedures for use when parliament seeks to amend money bills, while also drafting the necessary legislation necessary for amending the money bills.
The oversight functions also results form government institutions being tabled in parliament, and sometimes, government officials may be summoned by parliament. In 2007, 196 yearly reports were deliberated by parliament. Further, the institution conducted 92 oversight tours, in addition to holding 137 public investigation forums (parliament.gov.za)
Functions of oversight
Detecting and preventing abuse, unconstitutional conduct and arbitrary behavior by the government, thus protecting the rights and liberties of the ordinary citizens.
Holding the government accountable on the use of tax payer’s money by detecting waste through unwarranted use. Through this, it seeks to improve efficiency, effectiveness and fair use in government offices.
Ensuring that policies laid-out by the government are approved by parliament and that set goals are achieved through government programs (Jerkins22).
Under section 181(5) of the constitution, the office of the auditor general, commission for Gender and equality, public protector, electoral commission, Human rights Commission and commission for promotion & protection of Cultural, religious & linguistic communities must submit a report to the national assembly on an annual basis. Despite the crucial role of the oversight process, concerns regarding manpower surface especially because the oversight process is mainly made up of Member of Parliament drawn from both houses in parliament. Subject advisers, dedicated researchers, experts, tertiary institutions, civil society and research firms are also invited to make recommendations. However, the ultimate decision is made by the legislatures.
Monitoring activities in the South African parliament seeks to achieve two objectives. 1) Ensuring that the legislative framework meet the requirement in the constitution and other legislations and, 2) overseeing the practical side of government operations, which is done through supervision (Rudman 52). The monitoring process is done formally and in a structured manner. This means that the mechanisms and structures must be put into place and appropriate procedures established. Further, proper record keeping is vital, as is sufficient capacity to do the supervisory work (Rudman 55).
Parliamentary roles in monitoring and oversight means that the institution also qualifies as a management tool since it controls the country not only through passing legislation that governs it, but also by ensuring that the laws are enforced. To explain results to the larger audience, the South African parliament usually uses conventional means of communication such as media, Internet and books. The provincial leaders also ensure that the public at the local levels get to learn the information. In addition, the Media also acts as a mode of external justification as does the civil society and international bodies interested in the organizations performance by the virtue of their funding.
Legislative needs assessment
According to the United Nations Development Fund, legislative needs assessment is the comprehensive needs statement on the legislature, which propose program designs put in place to assist the legislature perform its lawmaking, oversight and representation duties efficiently and effectively (undp.org). In addition, the needs assessment on the legislature can also suggest activities to be undertaken by the civil society with the aim of strengthening interaction between them and the legislature.
The needs assessment on the legislature may be either specific or general. The specific assessment narrows down on legislative areas such as oversight roles, policies or constituent/legislative relations (undp.org). General assessments on the other hand, examines the overall needs in the legislature and are intended to provide decision makers with enough information to enable them gather information for planning a legislative project.
In the South African context, the speaker, Baleka Mbete admitted that the parliament needs to build and efficient and effective institution. This was especially the case due to the transformations on both political and administrative levels. One of the suggested ways of doing this is by developing an Information communication strategy. The system was proposed for administrative business and integrating departments such as human resources, finance, payrolls and procurement systems.
According to Clement, Quinton (6), the South African parliament has limited autonomy and independence, especially because the executive has a tendency of dominating the legislature. There was need therefore to improve relations between the two institutions in order to ensure that parliaments operate freely. The small political parties also presented another problem for the South Africa parliament. Due to their small numbers, there are inadequate numbers of members to service committees (Clements 8).
By 2004, the South African parliament was still lacking a travel system, which amounted to weak links in parliament’s administrative and financial systems (Mbete, B). The old travel system was controlled by paper vouchers and data storage and retrieval was a challenge for the parliamentary staff.
The program design is such that the South African parliament puts up an ICT systems and a new travel system. Should the process and requirements be too expensive, getting assistance from grant agencies should be the next best alternative. The South African parliament has in the past received grants from organizations such as the European Union Legislature Support Program.
Implementation of programs is always done along specific time frames, and the actions are always specific. Progress reports on the same are used to judge if parliament. For example, in the action program 2007 by the government the action plans were divided into five clusters namely: Economic, employment and investment cluster, Governance and Administration cluster, Internals relations, security and peace cluster, crime, justice and security cluster and the social cluster. All clusters were scheduled between 2007 and 2008 and were monitored and evaluated, after which the reports were presented to the cabinet (Info.gov.za). The governance and administration cluster had the least actions, all which were conducted between 2007 and April 2008. Some of the actions were anti-corruption initiatives, Gender & disability programs, and public participation. Local governance, skills assessment and capacity building were also addressed by relevant actions. Under the Transversal systems, planning integration and the government policy agenda guidelines were addressed and timelines set to achieve the missing regulations, guidelines, regulations and frameworks (info.gov.za).
Upon achievement of the set targets in 2008, the government learnt valuable lessons that governance can be improved by first carrying a needs assessment to determine the missing factors. The next step involves setting up an action plan addressing the needs realized in the needs assessment and putting up assessment measures (info.gov.za).
Under the South African constitution, the authority is vested on the parliament. This includes the national sphere-government, which is vested on elected members of the national assembly, the provincial sphere governance, which is vested in the NCOP, and the local governance, which is vested in countrywide municipal councils (environment.gov.za).
Critics doubt the ability of South Africa having the institutional capacity to accomplish its constitutional mandate especially considering that by 2006, the institution had not attained much success in its oversight roles and representing the ordinary populace (Nijzink et al 7). Despite the South African constitution attracting enormous amounts of donor funding for purposes of increasing the institution capacity, critics still feel that not much has been achieved in the post-apartheid era. Defending its status, the South African parliament reiterated that the despite support programs from donors being uneven and uncertain, they have so far achieved much mileage (Nijzink et al 9). Courtesy of donor funding the South African parliament had a 41 million euro budget in 2003, and was already housed in an big office building in SA’s Cape Town. In addition, Parliament was well staffed with 26 researchers in its research section.
Regarding citizens –Member of Parliament relations, the South African context is disadvantaged since one member represents approximately 110,000 citizens (Nijzink 12). Accordingly, this curtails how the member relates with the citizens who he or she represents in parliament. Considering the vast size of South Africa and the location of Cape Town where parliament buildings are located, members of parliament may also be constrained by travel conditions. By 2003, South African Members of parliament could not interact or contact 0.2 percent of their constituents (Nijzink 23). This was however, a low rate compared with Ugandan MPs who could not contact or interact with 16 percent of Ugandan population (25. This explains why by 2002, there was still high level debates about increasing representation of the populace in parliament, in addition to increasing democratic accountability (Reynolds 4). Through a NEPAD initiative, the South African parliament had up a fund that provided loans and other forms of financial assistance with the intention of promoting good governance and democracy. This initiative also thwarts and resolves conflicts, offer human-resource development and offer humanitarian assistance (Maria Sonja).
According to information posted on the official parliament website, increasing capacity in parliament requires the same to be done for members and parliament officials. It is suggested that training be carried out in order to equip members with skills and knowledge required for effective performance ( parliament.gov.za). The new development in 2007 was the ICT initiatives, which succeeded in increasing capacity by enabling better and easier communication, better information storage and retrieval thus increasing efficiency in parliament.
The new emblem is a combination of images of the sun, protean leaves, nine triangles drawn on a pot and a book. According to the parliament website, the book represents the parliament, while the pot represents the diversity of South African as represented in the nine provinces. The nine triangles represent the nine provinces, while the protea leaves represent the people of South Africa. The sun symbolizes the healing process in South Africa after apartheid and the sovereignty of South Africa (parliament.gov.za).
The South African parliament as stated elsewhere in this paper has two houses. To support the operations of the bicameral parliament is a joint administration, which reviews powers and boundaries in the different departments in parliament (US Library of congress).
Under the South African Constitution, the executive power is vested on the president, the vice- president and the ministers. The president is mandated with upholding, defending and protecting the South African constitution in all the decisions he executes when leading the country. He is also responsible for electing cabinet ministers from the parliament and can consider a specific number of non-elected members to cabinet positions. The executive is influential in the decision making in parliament especially because the president is usually elected from the political party that has majority members in parliament (US Library of congress). Parliament has the greatest influence over the land since laws are passed in the chambers, and amendments done on the constitution. Before the 1996 constitution was adopted as the country’s main constitution, parliament had also taken up additional mandate of acting as a constitutional assembly for the purposes of deliberating on a new constitution for the country (US Library of congress).
Disposition towards modernization
In the strategic plan for the 2004-2009 plan, parliament set itself targets that if achieved could results to the institution embracing more modernized ways of performing its duties. Through ICT and other modern ways of conducting parliament business, the institution hoped that it would be a more efficient and effective (Parliament.gov.za)
Some of the targets set by the 2004-2009 parliaments were to upgrade committee rooms, implementing a language policy, increasing development and retention capacity, implementing committee systems, establishing a unified mode of communication. In the second phase of the strategic plan, parliament sought implement video-conferencing, upgrade its publishing systems, upgrading the broadcast infrastructure, which was set to include video services and a public feed (parliament.gov.za).
Other parliamentary developments that signify that the South African parliament is embracing modernization are intranet development, a system that would track member’s parliament attendance, the development of a datacenter infrastructure and the asset management & tracking system that the 2004-2009 parliaments sought to have.
The South African parliament has grown tremendously in the last decade. When ANC took up leadership from the apartheid Boers, it was a relief moment that was also filled with uncertainties for new members in parliament. Most of the members did not have adequate education, which made it hard to understand and abide by the rules of parliament. With time however, every member was as good as the minority but experienced NP members who had made a come back to parliament.
Some of the new developments that emerged in the post- apartheid parliament were that the institution has been more accessible to the public, and is even more accountable since the public can closely monitor the operations through physical attendance or through the parliamentary TV channel. Public participation in parliament also ensures that the legislators address all issues that arise in the social and economic circles through out the country. The Parliamentary Monitoring Group is Non-governmental organizations that plays an important oversight role over parliament and helps the public understand bills and discussions by publishing vital information on their website (Roux 5).
Overall, the South African Parliament has developed from the whites-only parliament common in the apartheid area to become a stronger bi-racial institution, which has played its oversights and law making roles quite impressively. One of the highest scores by the parliament was the formation of the South African constitution. Critics however point that its oversight roles falls short of expectations due to executive influence on the same. This may be true, but seeing that ANC is loosing the blanket support that it had in 1994, one can only hope that parliament will eventually gain autonomy from the executive in future. Currently, critics argue that it is more of a rubber stamp to executive orders.
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