JOINT RULES COMMITTEE

Chairpersons:

Speaker of the National Assembly ( 2060

Chairperson of the National Council of Provinces ( 3017

Committee secretaries: Marina Griebenow and Jodi-Anne Borien

ITEM 8.1

IMPLEMENTATION OF POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT (NO 4 OF 2004)

MEMORANDUM

[CONFIDENTIAL]

  1. The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 (the "Act") came into effect on 7 June 2004.
  1. We would like to draw your attention to the following provisions of the Act which the Joint Rules may provide for:
    1. Section 14 [Summonsing of witnesses] – payment for expenses, as approved by the Speaker or Chairperson in accordance with the standing rules, in respect of witnesses who appear before a committee, including a joint committee. At present there is no rule.
    2. Section 15 [Examination of witnesses] – if required, rules relating to the limitation of the subject matter about which a witness may be questioned or the type of document that a witness may be required to produce. At present there is no rule.
    3. Section 16 [Privilege of witnesses] – if required, rules relating to warning witnesses that the common law protection against self-incrimination has been removed for purposes of questioning witnesses. At present there is no rule.
    4. Section 21 [Broadcasting of proceedings] – if required, rules relating to conditions regarding rights to broadcast the proceedings of Parliament. Joint Rule 52 needs amendment.
  1. Attached please find a document setting out the abovementioned in more detail.

 

 

Adv F S Jenkins / Adv Z Adhikarie

PARLIAMENTARY LEGAL ADVISERS

 

ITEM 8.1

ACTION REQUIRED IN THE IMPLEMENTATION OF THE POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT, 2004

Section 12 – Disciplinary action against members for contempt

 

Subsection (5)(g) provides for the suspension of a member, which must be read with subsection (9) that provides that a member may not be suspended under subsection (5)(g) unless the House has found that the member is guilty of a serious or repeated contempt and none of the other penalties set out in subsection (5) will be sufficient.

 

The function of the House in terms of this section requires assistance from rules setting out when "contempt" is "serious" or "repeated" (definitions required) as well as when none of the other penalties will be sufficient. The rules should probably set out how the House can arrive at such a finding, both substantially and procedurally.

 

A further point to consider is that the Act does not provide for all forms of contempt known in common law; eg "bringing Parliament into disrepute". Consideration should be given to including a reference to this in the rules in terms of section 13(d).

Section 14 – Summonsing of witnesses

 

Subsection (6) provides that a person summonsed in terms of this section or requested by a House or committee to attend a meeting of the House or committee, is entitled to be paid an amount for his or her expenses, as approved by the Speaker or Chairperson in accordance with the standing rules.

 

Rules must be adopted to provide for the abovementioned entitlement.

Section 15 – Examination of witness

 

Paragraph (b) provides for the possibility that the rules may limit the type of subject matter about which a witness may be questioned or the type of document that a witness may be requested to produce. Here rules may be adopted to provide for such limitations, subject of course to the oversight functions the National Assembly must perform according to the Constitution.

Section 16 – Privilege of witness

 

Because the common law privilege of a witness not to make self-incriminating statements (right to silence) has been removed, as well as the possibility that the witness may be criminally liable if he or she does not answer the questions fully and satisfactory, the witness should be informed by the committee of his or her rights prior to giving evidence. This task of the committee could be included in the rules.

 

Section 21 – Broadcasting of proceedings

 

The section provides that no person may broadcast or televise or otherwise transmit by electronic means the proceedings of Parliament or of a House or committee, or any part of those proceedings, except by order or under the authority of the Houses or the House concerned, and in accordance with the conditions, if any, determined by the Speaker or Chairperson in terms of the standing rules.

 

If there is a policy decision on conditions attached to broadcasting in terms of this section, the rules must provide for those conditions as the Presiding Officers may only determine these in terms of standing rules.

Section 25 – Protection of members of public

 

The section provides that a standing committee of the relevant House must, subject to the standing rules, consider a written request to record a response sent to the Secretary of Parliament from a member of the public who feels aggrieved by a statement or remark made by a member or witness in or before a House or committee about that person. These standing rules must provide for the process of considering the request as well as for the publication of the person’s response in the appropriate parliamentary paper if the request is approved.

 

 

Drafted by Adv F S Jenkins

Parliamentary Legal Adviser

24 May 2004

 

 

ITEM 8.2

IMPLEMENTATION OF OVERSIGHT AND ACCOUNTABILITY RECOMMENDATIONS

 

 

IMPLEMENTATION PLAN IN RESPECT OF RECOMMENDATIONS OF THE JOINT AD HOC SUBCOMMITTEE ON OVERSIGHT AND ACCOUNTABILITY

Introduction

At the beginning of 1999, Parliament engaged the services of a consultant to research Parliament’s oversight functions and to:

 

  1. Identify areas in which Parliament is required to exercise oversight;
  2. Assess existing Parliamentary mechanisms and procedures to hold the
  3. Executive accountable; and

  4. Make recommendations to improve the efficiency and effectiveness of

Parliamentary oversight.

 

The research was to be conducted against the background that:

  1. The Constitution gives Parliament specific responsibilities for oversight of the Executive. In terms of section 42(3) of the Constitution the functions of the National Assembly include scrutiny and oversight of Executive action;
  2. Section 55(2) of the Constitution places an obligation on the National Assembly to provide for mechanisms to ensure that executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise of national executive authority and any organ of state; and
  3. Parliament had not yet put in place sufficient mechanisms and procedures to fulfill its oversight functions and to hold state departments and organs of state accountable.

The consultant’s report was submitted to Parliament in July 1999. The Joint Rules Committee established an ad hoc Joint Subcommittee on Oversight and Accountability and referred the consultants’ report to this committee for consideration and to make recommendations to the Joint Rules Committee on its findings.

 

The Joint Subcommittee engaged in a series of meetings and interviewed key Parliamentary role-players before presenting the Joint Rules Committee with its final report on 3 September 2002.

 

On 25 March 2003, the Joint Rules Committee approved the recommendations contained in the Joint Subcommittee’s report and requested that an implementation plan be considered in respect of the recommendations contained in the report.

Implementation plan

 

On 19 August, the Joint Rules Committee adopted the following implementation plan:

 

Implementation mechanism

 

The Presiding Officers being the implementing authority of Parliament will require

the assistance of a dedicated Task Team, which will be chaired/convened jointly by the Presiding Officers. The Task Team should consist of key Members who will be able to dedicate time and commit the resources of their office to the process. In this regard the following people should be considered: The Chief Whip and Deputy Chief Whip of the majority party or their representatives, the Chairpersons of Committees of the two Houses, two (or more) chief whips from opposition parties and six to ten other Members.

 

The Task Team will in turn have three components:

 

(1) The Chair of Committees component

 

This component should be chaired jointly by the Chairpersons of Committees of the two Houses. The aspects that this component will consider and report to the Task Team on will be:

 

  1. The drafting of the Best Practice Guide for Committees to capture inter-alia the best oversight practices of committees;
  2. Drafting guidelines for Portfolio and Select Committees to allow for joint planning of oversight work;
  3. Drafting protocols to ensure structured communication between committees of the two Houses;
  4. Capacity development in Select and Portfolio Committees; and
  5. Developing a data compilation or record keeping system and monitoring and tracking mechanism in the Committee Section.

 

This component will require the technical assistance of and work closely with the Head of the Committee Section and draw in further technical capacity from within Parliament.

 

(2) The Budget Legislation component

 

This component will be chaired jointly by the Chairpersons of the Budget Committee and should essentially develop legislation referred to in Section 77(2) of the Constitution. This component will conduct research and develop a draft policy in terms of section 77(2) and finally draft proposed legislation. In addition, this component will require the technical assistance of researchers and legal advisers/drafters.

 

(3) The Projects component

 

The tasks of this component include:

 

  1. The drafting of the Constitutional "Landscape" document including commentary from key constitutional negotiators;
  2. An audit of the various bodies exercising public powers or performing public functions and the resulting delineation process; and
  3. Developing a draft proposal toward a policy to be adopted in terms of section 55(2)(b)(ii) of the Constitution.

 

This component may also be tasked with drafting the option preferred by the JRC in regard to formalized Accountability Standards.

 

ITEM 8.2

IMPLEMENTATION OF OVERSIGHT AND ACCOUNTABILITY RECOMMENDATIONS

No 10 - 2004] SIXTH SESSION, SECOND PARLIAMENT

PARLIAMENT OF THE ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

WEDNESDAY, 11 FEBRUARY 2004

TABLINGS

National Assembly and National Council of Provinces

1. The Speaker and the Chairperson

Recommendations of the Joint Ad Hoc Subcommittee on Oversight and Accountability which were adopted by the Joint Rules Committee on 25 March 2003:

The Report of the Joint Rules Committee on the Implementation of the Recommendations of the Joint Ad Hoc Subcommittee on Oversight and Accountability, dated 17 November 2003, was published in the ATC of the same day. The Report did not contain the full set of recommendations of the Subcommittee.

At its meeting held on 26 November 2003, the Joint Rules Committee resolved that the full set of resolutions contained in the final report of the Joint Ad Hoc Subcommittee on Oversight and Accountability be published in the ATC.

The following is the full set of resolutions including those published on 17 November 2003:

Developing an understanding of oversight

Recommendation 1

The Subcommittee recommends that:

1.1 Parliament through the Joint Rules Committee (JRC), compiles a document "landscaping" the Constitutional provisions dealing with the inter-related themes of Oversight, Accountability, Transparency and responsiveness, and outlining international trends. Such a document should also include inputs from key constitutional negotiators either in the form of commissioned research or essays, (preferably both).

1.2 Following the tabling of the abovementioned document, debates, workshops and discussions should be programmed and organised within Parliament, first amongst MP's themselves, and then later on expanded to include other stakeholders. These debates and discussions should have as their objective the development of a broad understanding of the Oversight Role and Purpose of Parliament within our Constitutional democracy.

Coordination between the Houses

Recommendation 2

The Subcommittee recommends that:

2.1 The JRC initiate a process aimed at drafting guidelines for portfolio and select committees to allow inter-alia for joint planning of oversight work.

2.2 A process should be initiated to establish protocols to ensure structured communication between committees through streamlining of the committee section, which would allow for more effective and formal communication between committees of both Houses that embark on mutual interest oversight work and briefing sessions.

Building Parliament's Oversight Capacity

Recommendation 3

The Subcommittee recommends that:

3.1 The Joint Rules Committee begins a process aimed at producing a long term institutional Vision and Mission Statement aimed at building Parliament's oversight capabilities through adequate resourcing and capacity building in committees, Constituency offices and within Parliament's administrative support structures - in particular the Committee section where a record-keeping system, and tracking mechanisms are required to be established.

3.2 Parliament adopts a policy requiring each new Parliament to assess and review its oversight capabilities once during its five-year lifespan.

 

Institutions Supporting Democracy

Recommendation 4

The Subcommittee recommends that:

The matters of independence of the ISD, the more co-ordinated interaction between Parliament and the ISD, the effectiveness of the oversight role of the ISD, their budgetary procedures and their accountability to Parliament, be the subject of a more extensive consultation process that should involve all role-players. This kind of process we believe should be initiated by Parliament and that it would be for Parliament to decide how best to engage in this process.

Developing and Institutional Memory

Recommendation 5

The Subcommittee recommends that:

Parliament, urgently takes measures to develop a Best Practice Guide to capture inter-alia the best oversight practices of committees and the experiences of chairpersons of various Select and Portfolio Committees.

Fine tuning and development of Oversight Mechanisms

Recommendation 6

The Subcommittee recommends that:

6.1 Parliament commissions an audit of the various bodies exercising public powers pr performing public functions and which should in addition be clearly delineate which line function departments are responsible for the various organs of state. Portfolio and Select Committees within parliament will consequently assume the necessary oversight responsibility.

6.2 Parliament through the JRC develops a policy aimed at meeting its constitutional obligations set out in s 55(2)(b)(ii).

6.3 Such a policy should consider the necessity for basic legislation giving effect to s 55(2) on issues of oversight and accountability and dealing especially with organs of state directly accountable to Parliament.

6.4 The JRC develops a policy allowing for more debates on committee oversight reports to be programmed. These debates should take the form of MPs raising issues of concern based on the report tabled and Ministers responding to those issues.

Introducing Oversight Mechanisms: Accountability Standards Act

Recommendation 7*

The Subcommittee recommends that:

Option 1

Parliament should begin a formal process of evaluating its oversight activities as distinct from its legislative role and developing a manual on Accountability and Oversight for MPs and Committees, with the intention of constantly developing and refining such a manual.

Option 2

Parliament should adopt the recommendation as proposed by the consultant's that an Accountability Standards Act be enacted.

(* Joint Rules Committee still has to decide on which option to adopt)

Bringing Parliament's oversight role to bear on the Budget Process

Recommendation 8

The Subcommittee noting the inextricable link between effective Parliamentary oversight and Parliament's role in the budget process recommends that:

Parliament develops a formal process to enact legislation in terms of section 77(2) of the Constitution.

 

ITEM 8.3

INTERIM REPORT ON SCRUTINY OF DELEGATED LEGISLATION

LEGACY REPORT ON INTERIM REPORT OF JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION ON SCRUTINY OF DELEGATED LEGISLATION

  1. The Joint Subcommittee on Delegated Legislation presented its Interim Report on the Scrutiny of Delegated Legislation to the Joint Rules Committee of the previous Parliament on 29 October 2002.
  2. At that meeting, it was agreed -
  1. The interim report was tabled in the ATC on 11 February 2003 and published on the parliamentary website from the same date. A total of 600 hard copies were made and distributed to all members of Parliament. Parties were invited to submit comment on the report. To date, nothing has been received.
  2. In accordance with the decision of the Joint Rules Committee, a workshop was scheduled for 11 April 2003 by the Programme Committees of both Houses. However, owing to more pressing considerations in respect of the parliamentary programme, the workshop was postponed.
  3. The NCOP subsequently had a workshop on its own.
  4. At the last meeting of the Joint Rules Committee on 26 November 2003, it was agreed that depending on the programme determined by the Joint Programme Committee for the first term of 2004, a workshop for the National Assembly could be slotted into the committee weeks preceding plenaries.
  5. No committee weeks were determined by the Joint Programme Committee and to date no workshop has been held for National Assembly members.

[Prepared by Marina Griebenow : May 2004]

 

ITEM 8.4

PROBLEMS WITH LANGUAGE PRACTICES IN PARLIAMENT IN RELATION TO BILLS AND AMENDING BILLS

 

PROBLEMS WITH LANGUAGE PRACTICES IN PARLIAMENT IN RELATION TO BILLS AND AMENDING BILLS

 

There is currently no requirement that the text of an amendment bill must be in the same language as the Act that it is amending. This matter came up at the meeting of the Joint Rules Committee on 22 May 2001 and again on 9 October 2001.

Attached is a draft bill that was prepared under the direction of the chairperson of the National Assembly Committee on the Review of Rules, Adv J H de Lange, which aims to address this.

 

ITEM 8.5

DESIGNATION OF COMMITTEE TO RECEIVE QUARTERLY REPORTS ON NATIONAL ARMS CONTROL IN TERMS OF THE NATIONAL CONVENTIONAL ARMS CONTROL ACT

  1. The National Conventional Arms Control Bill was passed by the National Assembly on 20 August 2002, and by the National Council of Provinces on 17 October 2002.
  2. The bill provided that the National Conventional Arms Control Committee which functions under the auspices of the Department of Defence must make quarterly reports to a committee of Parliament determined by Parliament on all conventional arms exports concluded during the preceding quarter.
  3. The National Conventional Arms Control Committee is thus required to report directly to an identified committee of Parliament.
  4. This particular committee has not been identified and will need to be determined in order for Parliament to comply with the legislation.

Section 23 of National Conventional Arms Control Act (No 41 of 2002):

  1. Disclosure and non-disclosure of information –

(1) The Committee must –

    1. ensure compliance with the annual reporting requirements of the United Nations Register of Conventional Arms and simultaneously present to Parliament a copy of South Africa’s annual report to the United Nations;
    2. make quarterly reports to the Cabinet and a committee of Parliament determined by Parliament on all conventional arms exports concluded during the preceding quarter; and
    3. at the end of the first quarter of each year, present to Parliament and release to the public an annual report on all conventional arms exports concluded during the preceding calender year.

[Prepared by Masibulele Xaso: May 2004]