CRITIQUE OF THE DOCUMENT ENTITLED "RESPONSE OF THE INKATHA FREEDOM PARTY TO THE PENULTIMATE REPORT ON THE WHITE PAPER ON INTERNATIONAL MIGRATION IN RESPECT OF PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS. Cape Town: October 20, 2000

1. INTRODUCTION
There is no need to write a lengthy critique to the above-mentioned document as this will drag the Portfolio Committee into a quagmire of recriminations and alterations which may have unintended repercussions. On account of the fact that it is not signed, we will refer to the authors of the IFP Document in this critique.

2. SUCCINT RESPONSE
2.1 We thank the authors of the document for having responded to the Penultimate Report on the White Paper. We particularly note the diligence and thoroughness of attention applied to the Penultimate Report.

2.2 It is, however, regrettable that the authors of the IFP document HAVE COMPLETELY MISSED THE BOAT.

2.3 The crucial tragedy is that the authors of the IFP document DO NOT RECOGNISE THE PARLIAMENTARY AND CONSTITUTIONAL ROLE OF THE PORTFOLIO COMMITTEE. To illustrate or point, we quote for P. 2 of the IFP Document, 3rd paragraph. "within this context, ... the Minister appointed the Committee to request its inputs along all other public inputs". HERE, THE PORTFOLIO COMMITTEE MUST SIMPLY QUEUE UP WITH THE REST OF THE PUBLIC FOR ITS INPUTS. This is a clear EROSION OF DEMOCRACY and we cannot allow it.

2.4 South Africa is a Constitutional State. We emphasise and reiterate this fact.

2.5 All the 400 members of the National Assembly HAD to take either of the following two oaths:

OATH OF ALLEGIANCE
I ............................................ swear that I will be faithful to the Republic of South African and will obey, respect and uphold the Constitution and all the other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly to the best of my ability.

So help me God.

Signed in Cape Town on this the twelfth day of September 2000.


................................... .......................................
SPEAKER OF THE MEMBER OF THE
NATIONAL ASSEMBLY NATIONAL ASSEMBLY

OATH OF AFFIRMATION
I ............................................ swear that I will be faithful to the Republic of South African and will obey, respect and uphold the Constitution and all the other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly to the best of my ability.

Signed in Cape Town on this the twelfth day of September 2000.


................................... .......................................
SPEAKER OF THE MEMBER OF THE
NATIONAL ASSEMBLY NATIONAL ASSEMBLY

2.6 The oath specifically enjoins an MP to "uphold the Constitution" whose CLAUSE 56 (and we have quoted it on page 8 of the Penultimate Report) reads:
Evidence or information before National Assembly.
The National Assembly or any of its committees may:-
a) summon any person to appear before it to give evidence on oath of affirmation or to produce documents;
b) require any person or institution to report to it;
c) compel, in term of national legislation or the rules and orders, any person or institution to comply with summons or requirements in terms of paragraph (a) or (b); and
d) receive petitions, representations or submissions from any interested person or institutions.

Furthermore, (and we quoted on P.7 of our Report),
2.7 The N.A. Rule 138 (c) states that for the purpose of performing its function, subject to the Constitution, legislation the other provisions of these rules and resolutions of the Assembly: -
a) Summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
b) Receive petitions, representations or submission from interested persons or institutions;
c) Conduct Public Hearings;
d) Permit oral evidence on petition, representations, submissions and any other matter before the Committee;
e) Determine its own procedure;
f) Meet at a venue determined by it which may be venue beyond the seat of Parliament;
g) Meet on any day at any time, including:-

· On a day which is not a working day
· On a day on which the Assembly is not sitting
· At a time when the Assembly is sitting
· During recess

h) Exercise any other power assigned to it by the Constitution; Legislation, and the other provisions of these rule or resolutions of the Assembly.

2.8 We find it INCOMPREHENSIBLE that any of the 400 MP’s who took the OATH, can try and UNDERMINE the injunction of the Constitution, i.e. exercise of oversight!

2.9 What is AT THE HEART of this debate is what the authors of the IFP document refer to as the EXECUTIVE PREROGATIVE OF THE MINISTER and the PARLIAMENTARY OVERSIGHT FUNCTION that the Portfolio Committee should exercise over the EXECUTIVE!

2.10 The Constitution sets out the SEPARATION OF POWERS i.e. the EXECUTIVE, THE LEGISLATURE AND THE JUDICIARY.

2.11 THE OVERSIGHT ROLE of Publication over the EXECUTIVE through Portfolio Committee, cannot be taken away by the Minister.

2.12 The authors of the IFP Document extol the EXECUTIVE PREROGATIVE while berate PARLIAMENTARY involvement by the Home Affairs Portfolio Committee, as ABUSE OF POWER. One cannot think of a more classic example of TWISTED LOGIC.

2.13 MP’s must do their job. It is our Constitutional obligation. We cannot just behave like TEDDY BEARS and watch the conveyor belt of ministerial activities. When we detect something wrong, we must STOP THE MINISTERIAL CONVEYOR BELT to examine the situation and if needs be restart the process. All this is done in the interest of democracy, transparency and accountability.

2.14 According to the authors, the Minister is Boss and must DECREE e.g. the invitation of the D6 to brief the Committee.

2.15 Following from 2.10 above is that the PORTFOLIO COMMITTEE must just OBEY MINISTERIAL DECREE. This is illustrated by the assertion that "as Portfolio Committees are required to focus their attention on Bills" (P. 2 of the IFP Document.)

2.16 The IFP document also makes an astounding averment "It is legally incorrect to utilise the Rules as a source for Parliamentary powers and functions, for their purpose is that of organising and providing internal arrangements" (P3 IFP Document).

2.17 What is also pathetic about the IFP Document is that it contradicts itself blatantly in respect of whether the White Paper on International Migration was ever PRESENTED to the Portfolio Committee or NOT. This can best be described as an AMBIVALENT if not SCHIZOPHRENIC quandary the IFP authors find themselves in.

2.18 The following evidence puts the record straight through the correspondence of the Minister.

a)The Department would like to have the opportunity to give a presentation onthe White Paper to the Committee along with a presentation on relevant issues and options which currently frame the debate on migration policies both in South Africa and internationally (Date: 29 September 1999).

b) I would appreciate an indication from you of how we could best assist the members of the portfolio committee in familiarising themselves with these important policy documents (Date:29 September 1999).

c) I have been informed by the Department that the Department has still not given the Portfolio Committee a presentation on the White Paper explaining how proposals were reached and their background. I think this perspective is important to your deliberation on the White Paper which is now before your Committee. I regret that the Department has not been sufficiently forthcoming in responding to your request for such presentation. I have urged the Deputy Director-General, Mr Ivan Lambinon to liaise with you and your Committee to seek guidance on when and how to make such presentation available to the members of your Committee (Date: 07 June 2000).

d) For this reason, I tabled the White Paper in Parliament to ensure that we could strengthen co-operation between the executive which is drafting the legislation and the Parliamentary Portfolio Committee (Date: 15 June 2000).

e) I know that the Portfolio Committee has engaged in a meritorious process of public consultation to increase its knowledge and understanding of the relevant issues. I must praise the Portfolio Committee and its Chairman for these efforts (Date: 3 October 2000)

2.19 The authors of the IFP Document spare no effort in using diatribe, expletives and vitriolic verbiage in attacking the Penultimate Report. One would have thought that more suave and urbane words would have been more effective.

2.20 An unwarranted attack on the Chief Whip of the Majority Party on page 4 of the IFP Document is pathetic. Nobody should envy his premiers and authority!! One wishes the IFP goodluck to be a Majority Party one day, so that it can also have a Chief Whip with such powers and authority.

2.21 The insistence by the authors of the IFP Document (P5) that the White Paper cannot be flawed, "especially when it is read together with its implementing legislation" boggles the mind. This is, in fact an admission that the White Paper is nonsensical and only makes sense when buttressed by legislation. Not even a rocket scientist can grasp this type of reasoning! As a Portfolio Committee, we have always WARNED AGAINST THE DANGER OF THIS PRACTICE. The White Paper process must first be concluded and when FEEDBACK is received on it, then PROCEED with the bill instead of POTPOURRI OR STEW APPROACH whereby both the White Paper and the Bill are handled together!! This is exactly what has bedevilled this entire progress.

2.22 Lindela Repatriation Centre and the Lebombo Boarder Post. Very simple English was used to explain the purpose of these two visits and there is NO NEED to pretend to misunderstand their inclusion in the Penultimate Report.

2.23 A self-congratulatory and presumptuous assertion on P.7 of the IFP Document is the cause for amusement. The 17 items exclude the Portfolio Committee! It is common cause that ONE CANNOT BE A REFEREE AND PLAYER AT THE SAME TIME. Even if 17 items are quadrupled, this does not earn the exercise legitimacy because they are conducted by the same quarter without preliminary oversight! What is also interesting is that the "Consultative Conference" was made possible by the Chairperson of the Portfolio Committee AGREEING TO SUPPORT an application to Parliament to grant a venue (Old Assembly Chamber).

2.24 The Portfolio Committee attended the said conference merely as OBSERVERS because we were in the middle of Public Hearings on the White Paper and could not express our opinion on the same subject on which we were seeking public opinion. Why is that difficult to understand? Our opinion would only come at the end of Public Hearings.

2.25 The proposed 20 PRINCIPLES are intended to form the basis of the new White Paper. They are a subject of discussion NOT A PRESCRIPTION.

2.26 It is difficult to fathom the ARROGANCE of point 4 on page 12 of the IFP document,namely " Any further consideration by the Committee of the legislative and administrative reform on migration control should be based on the combined reading of the White Paper and its Bill." We as the Portfolio Committee do not know WHO HAS THE RIGHT to dictate to us how we should exercise Parliamentary oversight!!! MP worth his or her salt cannot countenance the erosion of democracy, absence of transparency and accountability.

2.27 The other points to respond to have already been adequately dealt with and canvassed in the Penultimate Report. There is no need to revive the debate on them.

3.0 EPILOGUE
3.1The authors of the IFP Document are defensive in the extreme.
3.2Their views are noted and respected as we cannot always agree.
3.3 The Portfolio Committee will comply with the request of the authors of the IFP Document that in familiarising our report, "Comments be attached to it as an integral part of proof or minority view". (P.13)