Review of the Rules of National Assembly Chapter 10-11

Meeting report

Discussion on draft National Assembly Rules and proposals : Chapter 10 onwards 

The Chairperson welcomed Members and visitors and said the subcommittee (the Subcommittee) would continue to debate the review of the Rules of the National Assembly (the Rules)from where it had left the previous day

Rule 10 (4A) Time allocation

Mr Michael Plaatjies, Procedural Advisor: Questions, Parliament thought that having no limits for time allocated for replies by the Deputy President was a difficult point, because the increase in time previously did not yield any positive results, especially in the discussion that followed after an interpolation.

Mr M Ndlozi (EFF) asked what an interpolation was.

Mr Kasper Hahndiek, Former Parliament Secretary, Advisor to the Committee, replied that an interpolation was the answer and debate that followed after an answer. The term was borrowed from French and Belgian parliaments.

Ms N Michael (DA) said that presiding officers must adhere to time question allocations. She did not agree with Mr Plaatjies that the problem would continue to recur

Mr M Booi (ANC) said the Committee must be more creative to highlight the message. If ministers were not given enough time, it affected the quality of the responses. The President and his Deputy were the most important people in the executive and must be given more time. In addition, the executive must account, beyond merely standing in the Chamber they must answer questions properly, to ensure that Parliament had a good image. Politically, it was up to MPs to make Parliament a more vibrant institution. This was the decision from the ANC, in answer to the complaints often raised by the opposition and the need for driving democracy forward.

Ms J Kilian (ANC) said that a supplementary question should be based on the subject matter of reply which meant that, conservatively, 15 minutes were allocated per question, four questions per hour and 12 questions per three hours. The issue was either whether there was a need for increasing the questions or probing a reply.

Ms S Kalyan (DA) said ministers must get down to the business of answering questions more seriously. The short time was enough, because it was not for them to "waffle", but to give short, sharp and sweet answers. In the United Kingdom, the Prime Minister sat with his ministers a day before a sitting, discussing possible questions. She was opposed to increasing time to answer questions as ministers must show competency in answering questions succinctly.

Mr M Mashile (ANC) said that the response from Ms Kalyan and the proposal by Mr Booi did not correlate. Firstly, there was a need to define the role of the Minister on the podium. It was not good to give them too short a time, because it was likely that the answer might be something like "Yes, I agree". The real issue was how to get questions answered properly and the solution might be to reduce supplementary questions to a maximum of four. Presiding officers could not be firm on , because that would disrupt the answering of questions and the real issue was to ask relevant questions to get quality replies.

The Chairperson asked the Committee to separate the issue of questions asked to the President and Deputy President, and questions asked to Ministers. The focus of the present discussion was on the Deputy President.

Mr J Steenhuisen (DA) said the answer was simple; there should be six questions to the Deputy President, and when he answered all, then the session expired, whether it had taken less three hours or longer.  

Mr Ndlozi said that what was contained in rule 10(4A) should be an unwritten rule

Ms Kilian said that 10(4A) must be retained, and that there should be no limitation to time allocated for replies

Mr Kasper Hahndiek said there was an ambiguity in 4A and it should be written that supplementary questions were limited in terms of time

Mr Plaatjies said that having no time allocation stated created opportunities for filibustering. It could lead to Ministers being held up in Parliament until midnight, as happened in the NCOP sometimes.

The Chairperson said that at least three hours was enough for the Deputy President.

Mr Hahndiek said that the presiding officer may extend the time if the discussions were particularly vibrant.

The Chairperson said that the purpose of getting a Minister into the Chamber was to answer questions, with the country and the world watching. Any minister who did not answer a question would be creating a political penalty. However, it was important to separate time allocated to ministers and to the Heads of State.

Mr Ndlozi said the proposals on time continued to change as the Committee discussed the issue. Rule 113 did not apply to the President and his Deputy. He suggested that the Committee must just stick to Mr Steenhuisen’s proposal that six questions be answered, and the session would expire when that was done, or even simply put a rule that the Deputy President answers six questions per session.

Mr Plaatjies said that currently the Deputy President answered questions every Wednesday, and six questions for three hours were unreasonable.

Mr Booi said the length of discussion depended on the nature of the question. For instance, an Eskom energy question could drag for some time.

Ms Kalyan said if the Minister was answering four questions per hour, eight questions for three hours would suffice.

The Chairperson countered that six questions in three hours was enough.

Mr Booi said everything should be left to the Programming Committee, and quipped that this was where  Mr Ndlozi liked to sit

10 (7A) questions for oral reply

Mr Plaatjies said that currently the time limit for oral reply was nine days, but sometimes MPs might ask the Deputy President a question on health which was not, at the given moment, related to his work, and it was always difficult then to replace that question. He stressed that the issues to be put to the Deputy President were those of national and international importance.

Rule 111: Questions to the President

The Chairperson said in the last session, the President answered questions very well, and that Mr Ndlozi and Mr Steenhuisen did not ask any questions.

Ms Michael said that when the executive did not appear before Parliament, there must be some sanctions

Mr Steenhuisen said that the President was not subject to the Powers and Privileges of Parliament Act, and so the proposal by Ms Michael must be taken seriously. There must be a sanction by Parliament expressing dissatisfaction on the conduct of the executive.

Ms Kilian said political sanction was the only mechanism, and, for example votes of no confidence were done in other Parliaments around the world.

Mr Mashile said that ministers accounted to the President and they were also MPs, which meant that the codes of ethics for MPs applied to them equally. He would think it not appropriate or useful to take the Minister of Health, for instance, to a disciplinary hearing for not appearing before Parliament.

Mr Steenhuisen said there must be a way which Parliament sanctioned the President, as ministers were covered under Rule 115(4).

Mr Hahndiek said the same rules did apply to the President and his Deputy President, when answering questions

Mr Ndlozi said the issue went back to separation of powers.  There must be legislative recourse to punish the President. The current Speaker did not understand this as she said the President was above everyone; she talked of age when ruling on whether the President was out of order.

Ms Kilian said that Rule 111 should be shortened to state that the President was to account in accordance with Rule 24, on matters of national and international importance.

Mr Steenhuisen said Section 55(2) of the Constitution stated already that the executive "must" account before Parliament

Mr Hahndiek said that the Speaker did not have the authority to sanction the President. Parliament had to pursue other legal processes. Another way, if it wished to do this, might be to amend the Powers and Privileges Act and regard such conduct as a breach of privilege.

The Chairperson said MPs who failed to comply were dealt with through public opinion - as illustrated by Goodluck Jonathan. He suggested that the provision for a vote of no confidence was being abused and being debated every month. An MP who was angry at something should not simply draft a vote of no confidence.

Mr Ndlozi said that it was essential to have a provision for ministers and President who might be in gross violation of Rules of Parliament to be brought before the Powers and Privileges Committee, chaired by Mr Mashile. This would surely avoid the situation where they might be tempted to be in breach of the Rules. Penalties may include withholding a salary and other penalties as allowed for in the Powers and Privileges of Parliament Act.

Mr Booi said that would be tantamount to changing the whole Constitution and the Rules of Parliament. There was a challenge on non-accountability by the executive.

Mr Hahndiek said that section 13 of the Powers and Privileges Act defined a Member of Parliament as  including a Minister, MP and Deputy President. Only the President was not covered.

Mr Mashile said there must be no confusion and stressed that the executive accounted to the President. As individuals, Ministers were subject to the Code of Ethics and the Powers and Privileges of Parliament Act. 

Mr Steenhuisen suggested that the President should be included as a Member, for the purposes of the Powers and Privileges Act.

Mr Ndlozi said the Committee must make a recommendation to the Rules Committee, to make the President appear before Mr Mashile and his Committee. This should not be drafted with the current President in mind, but as a principle for the future.

Ms Kalyan wanted clarity on rule 10(6).

Mr Plaatjies replied that if the Deputy President failed to answer all questions as a result of MPs having disrupted the House, those questions would fall away.

Mr Steenhuisen said that, whilst in theory it was good, it had a dangerous effect. It would prejudice another party (X) who had not had their questions answered because of the first party (Y) disrupting the Chamber. Rule 114 and 115 said that such questions would be regarded as standing over.

Mr Mashile asked if the disadvantaged party or parties could resubmit their questions and have those questions prioritised. However, he added that Members must not be given incentives to disrupt the Chamber on the basis that those questions would be prioritised. He wondered what might happen if the House was disrupted after one question, and would the questions become 11 for the next session? He thought this proposal was not workable.

Mr Booi said disruption affected everyone. There was no rule that commanded the President to revisit questions posed on the day of disruption. The Chief Whips Forum (CWF) cannot resolve this issue.

Mr Steenhuisen agreed that bad behaviour should not be rewarded. Speaking to the events of 21 August 2014, he pointed out that rule 114(4) would regard those questions as "standing over". It could not be specified that the party must wait for rotation because a party like Agang would only get the chance after 45 months, and that was of great concern. The provision may be that the party that disrupted would have its position considered, which was also problematic.

Mr Ndlozi said that the Chief Whip of the ANC and of the DA had "assassinated the EFF". Other Chief Whips had not argued that the Speaker disrupted the House on 21 August as she could not implement the Rules properly. This implied that the Speaker can disrupt the house if she implemented the Rules unfairly.

The Chairperson said that disruption was a political issue. MPs were constrained by public opinion and the Rules of Parliament. If any MPs were to break the rules, Mr Mashile and his Committee would deal with them, or they must approach the courts to resolve the issues. It was not up to the Rules Committee to deal with this issue.
 

Mr Ndlozi formally proposed insertion of a rule to the effect that MPs may pose questions, without notice, for oral reply by Ministers, the Deputy President and the President. This should not be seen as in substitution to questions with notice. Questions without notice should be posed to a Ministerial cluster twice a year, and once a year to the President and his Deputy. These would be in line with national and international interests and in accordance with the responsibilities of the Cabinet Minister and the President, and may be based on constituency work of Members. These questions may be posed either separately from the day set out for the Ministerial Cluster, or the days set aside for the President or Deputy President, or the questions may use up one of the final hours of the days set out for each of these relevant individuals' questions. The questions should not follow party sequence, unless otherwise determined by the Rules Committee.

Mr Mashile asked the political intent behind this proposed this rule, and wondered if it was trying to test the quality of intelligence of the executive, and what might happen if a quality answer was not received.

Ms Michael was in favour of the proposal by Mr Ndlozi. A Minister should not be in a position to be "caught off guard" on issues regarding their portfolio, unless Mr Mashile was suggesting a lack of confidence in the ministers. She asked Mr Ndlozi what he anticipated would happens if the Speaker did not follow party sequence, or failed to recognize an MP's rights.

Mr Booi said Mr Mashile must respect Mr Ndlozi as an Honourable MP. He congratulated Mr Ndlozi for the proposal and it would be debated by the ANC with an honest mind. However, he wondered to what extent this new rule might infringe on all other rules debated before, and asked if it would not cause amendments to all rules debated previously, and whether and how it might run parallel to these rules.

Ms Kilian said time limitations on questions may result in a quick and lively debate. It was a good proposal,  if it could be well regulated.

Mr Steenhuisen agreed also that it was a good proposal and there was "a silver lining" in it as it provided opportunities for one on one engagement. There was a problem of MPs coming to the House with prepared questions and answers. This proposal, he suggested, could breathe life into section 92 of the Constitution, to make Ministers account individually and collectively. Even a soccer team without an opposition would becomes lazy. It was an exciting proposal that his party would look into.

Mr Plaatjies said this rule existed already, as rule 200, in 1994 where ten names were put in a hat and drawn randomly. It fell into disuse because of the age of Nelson Mandela, when it was felt not fair to subject him to randomly-decided interrogation.

The Chairperson said that Parliament and government were now mature in running the state. If it became more bureaucratic, the rule may not be used. It was a good proposal, especially given that the numbers of the public who viewed proceedings in the House had risen from 20 000 to 600 000 television viewers. However, he repeated that any MP who disrupted the Chamber would be subject to the committee chaired by Mr Mashile. It was a good opportunity for Mr Ndlozi and others to engage. However, questions should focus on issues of national importance to society, otherwise the opportunity would end up being a debate on statues.

Mr Ndlozi said it was good that that the rule was not something new. Ministers always gave press conferences and the same principles should apply in and outside Parliament buildings. The Rules Committee must decide when questions without notice would be done and for how long. Party sequence was put, to avoid the Rule Committee imposing a condition. On oral questions, Members must ask relevant questions.

Mr Booi said the real reason why Rule 200 was removed was because former President Mandela was asked a question in the Chamber and said something about Nigeria that had threatened relations between the two countries, resulting in endless delegations having to be sent there to sort the matter out. Since then, presidents had tried to avoid answering random questions.

Rule 112 Urgent questions

Mr Mashile asked why an urgent question had to be submitted in writing, because it would lose its urgency.

The Chairperson said it was necessary to look on the intention of the rule, history and purpose.

Mr Hahndiek said questions to the President and ministers were submitted nine days before the session. This rule afforded MPs an opportunity to ask a question that arose in the nine days prior to the day of the sitting.

Ms Kilian said such questions had to be put in writing motivating the importance of attending to that question, otherwise it may not be considered.

Ms Michael said the understanding was that the urgent questions related to issues of national importance that needed an urgent answer.

Mr Booi said the urgent question was a welcome proposal, and cited the example of when soldiers died in Central Africa, where the nation wanted answers. Urgent questions avoided anarchy as matters could be dealt with expeditiously, rather than waiting for after Parliament had adjourned.

Mr Steenhuisen said it was a good proposal, but the Speaker did not, in practice, not allow for such kind of things to happen. This proposal would allow Parliament to be at the cutting edge of national debate.

Rule 113 Time limits

Ms Kilian said the ANC proposal on this rule was that a supplementary question must arise from a reply to  the question and not a new question. This rule was also in the guide to procedure.

Ms Kalyan said there was no need to put a new provision. There was a rule already that said the Speaker could determine if a supplementary question was in order or out of order. She said that, for example, mixing nuclear deal questions and Nkandla matters would not be deemed appropriate. 

Mr Mashile said the Committee must determine what constitute appropriateness of a question, in advance, to avoid the possibility of a Member's integrity being damaged after the Speaker had ruled the Member out of order. It would sound as if the affected Member does not know the procedure.

Mr Hahndiek said this provision was to assist Members to ask good questions.

Mr Ndlozi said there was no need to write it as a rule. It must rather remain in the Guide to Procedure because at the end presiding officers determined if a question was in order.

The Chairperson said this rule made it easy for presiding officers to control the Chamber and it must be accepted.

Ms Kalyan said there was no need for an open ended approach to follow up questions, because a response given may open possibilities for many questions to be asked. The convention that no new question may be raised at this point read fine as it was.

Ms Kilian said Uganda, Malawi and Zambia had a similar prescription on supplementary question. The DA had always challenged the presiding officer on the rule on which her decision had been based, and for this reason the ANC suggested elevating it from the Guide to Procedure to be a specific rule.

Mr Steenhuisen said it was a problem to create rules for all eventualities. If everything was promoted to rules, it would prohibit free flow of debate.

Mr Mashile said that building up debates on oral replies could complicate issues as there were days for debates, snap debates and days for oral reply.

Ms Kilian asked why replies must be submitted by 12:00.

Mr Hahndiek replied that replies received were sent to parties, media and published on the Parliament's website.

Rule 114: Unanswered questions

Ms Kilian asked if a question was automatically converted into one requiring a written reply when the Minister did not answer it on that day.

The Chairperson said a member of the executive who fails to answer a question must explain to the House why he could not do so.

Mr Plaatjies said that some of the questions would never get answered if they were merely to be postponed. Sometimes he followed up with ministers on why they did not answer questions

Mr Booi said Mr Plaatjiies was violating the Constitution by being the last person to interact with the ministers. He must not negotiate with ministers who failed to answer questions on time. He must not take on that responsibility, because it was not mentioned in the order paper or Constitution.

Ms Kilian said there was need to separate oral replies and written questions. Sanctions and endorsement were in rule 117.

Mr Booi repeated that it was not up to officials from Parliament to follow up, but for the Speaker of Parliament. It was an indictment against the executive that it was not answering questions.

Mr Hahndiek said questions not answered or standing over appeared on the endorsement question paper, should the executive not answer the questions.

Mr Plaatjies said that the UK House of Commons had a subcommittee that interrogates ministers who delayed in answering questions.

Mr Hahndiek added that this UK subcommittee went to the extent of evaluating if the replies from ministers were dismissive of Parliament.

Mr Plaatjies said unanswered questions would go to the Leader of Government Business who acted similar to a whip for line ministers. The Speaker also would write quarterly to the Leader of Government Business on questions where no reply was given within six weeks.

Mr Booi said all this showed that the Parliament had not moved  away from colonial rules’

Mr Plaatjies said the rules only changed slightly in 1994 . Section 55 2) of the Constitution gave an accountability function to the National Assembly. The National Assembly acted through its Members, which was similar to the Westminster style. The National Assembly had not grappled with what holding the executive to account actually meant. Professor Christina Murray from UCT had recommended a National Assembly question time which parties could agree to as a means of enhancing executive accountability. It was difficult to negotiate with vigour in breaking from the colonial rules.

The Chairperson said it was also difficult to negotiate moving away from something that worked.

Ms Kalyan said the recommendation by Professor Murray came through the African Peer Review Mechanism. Members were given the documents more than two years ago, but had not looked at them in debate.

Mr Booi said if the documents were available, Members must engage with them. The Constitutional Court sometimes found itself in a predicament and ended up asking why Parliament does not resolve its own matters as an arm of government.

Mr Hahndiek said he once had questioned the relationship between the executive and Parliament. The Constitution said the all ministers were collectively and individually accountable to Parliament. However, the relationship between Parliament and the executive had been changing from president to president. Sometimes ministers refused to appear before Parliament and committees. Parliament had to exercise oversight over the executive and ways should be found to establish sanctions against the executive should there be such refusal.

Mr Ndlozi said that if a minister refuses to appear before Parliament, he must be brought before the Powers and Privileges Committee. The President was the only problem, for there was no mechanism to deal with this person. The Rules Committee must be told that other issues required political commitment. In the last days of President Mbeki holding his position, there were a lot of dissenting voices that ARV treatment must be instituted. He suggested that it might be useful if there were two or three examples of ministers being requested to appear before the Powers and Privileges Committee, to set a precedent. It was not good to continuously go to courts to resolve Parliament's own issues. However, there was a problem that people who win power tended to ignore rules or not take them seriously and Parliament could not continue to blame the executive and the constitution. He repeated that the ministers needed to be taken to the Powers and Privileges Committee and the relevant Act also had to be amended as it was only reactionary.

Mr Booi said there were certain things that happened in Parliament that were not ideal. It was important to review the rules in a way that no one was blamed for historical incidents.

Mr Ndlozi said before he got to Parliament, he used to get worried about what was happening and was reluctant to tell his closest friends about life in Parliament, because there were some poor examples, such as some MPs sleeping whilst in the Chamber. However, his status in the eyes of his friends had now been raised because of the EFF's firm stance and "Pay back the money" slogan. He suggested that any Members indulging in behaviour such as not working properly in the Chamber should be referred to the Powers and Privileges Committee. On the day of the State of the Nation Address, some Members were depicted on national television as having gone to sleep. The seriousness with which Members behaved, and the level of real work was dependent on the majority party.

Ms Kilian said Uganda's Standing Order 35 brought an element of authority to Parliament against the executive and made it punishable to fail to answer a question well.

Mr Hahndiek was not sure if that was applied consistently in Uganda. Budget votes, while a good mechanism of accountability, had become more of an event than substantially holding the executive to account.

The Chairperson said it was good to take some notes from Uganda’s Parliament, but this was more about political will than complying with a rule. Very few of the 1994 generation would be back in 2019. Managing the executive by Parliament had the potential to be healthy, or to raise tensions because more resources were held by the executive.

Mr Ndlozi proposed that a rule which said that if a Minister or Deputy President failed to answer questions in accordance with specific requirements in the Rules, they should be deemed to be in contempt of Parliament.

Ms Kilian said that rule must be written in such a way that it referred to section 92 of the Constitution as well.

Ms Kalyan said the rule that unanswered questions should be prioritised surely meant that they should be answered first, but it had been implemented differently in practice.

Ms Kilian said that in fact the questions were prioritised, but did not precede the business of the day.

Mr Booi said if a question was unanswered, it must be prioritised and that surely meant it must come first.

Ms Michael agreed with Mr Booi, and pointed out further that since that rule was worded with a "must" imperative, it should be used to avoid the opportunity for ministers to dodge questions.

Mr Hahndiek said rule 108 covered that, because there was a provision around consultation with the Leader of Government Business on the availability of the relevant Minister, but the question had to be answered on that day.

Mr Booi said it was good to avoid repetition of what had happened in the past. The review of the Rules meant tightening every gap and the truth was that question must be prioritised. It there was a flaw in the rule that dealt with this, it must be corrected.

Mr Hahndiek said the Speaker was obliged to prioritize the standing over question

Ms Kalyan asked if priority superceded the priority issue of a ministerial cluster on that day

Mr Hahndiek replied that questions left over from the previous day's 1uestions would be prioritized, but if the relevant Minister was absent, it became an oral reply question.

Mr Plaatjies said that rules 109(3) and 115(3) needed revision to capture all nuances and elements of administration.

Chapter 11: Messages

Mr Ndlozi asked if the House could communicate its concerns that the President was not taking the House seriously.

Mr Hahndiek replied that it had to be a House resolution.

The meeting was adjourned.