WEEKLY LETTER FROM LEADER OF OPPOSITION: 11 AUGUST 2006

Government by control-freaks

When I was first elected an MP in September 1989, Parliament was within five months, almost immediately sidelined by the very correct - and brave – speech of President FW de Klerk on 2 February 1990.

In one fell swoop he relocated power from the margins of tricameralism, to the centre stage of full-blooded negotiations with the representatives of the country’s then disfranchised majority, a thousand miles away from the legislative capital in the cavernous halls of the World Trade Centre in Kempton Park.

The end product – after four years of difficult processes – was the adoption of a constitution which transferred power to a fully democratic, properly elected parliament with immense powers of constitutional governance underpinned by the concept of legislative oversight.

Nearly seventeen years later, Parliament’s position is withering on the vine. Instead of proclaiming its role and performing its key function, it is in danger of becoming little more than a decorative flourish on a decaying edifice.

This degradation of the legislative process was again recently and graphically illustrated by the Portfolio Committee on Defence’s deliberations on a Bill whose consequences are as tortuous as its title - the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill.

While of course no one wants mercenary activity to be tolerated and there is every case to be made for proper scrutiny and specific guidelines in respect of the deployment of forces abroad, this legislation was so obviously flawed when it was first introduced to Parliament last year, it drew criticism from an unlikely source, the Minister supposed to steer its implementation - Defence Minister Mosiuoa Lekota.

Lekota admitted to Parliament at the time that there were a number of problematic areas in the legislation, which made it potentially unconstitutional. He even went so far as to urge the committee to help the defence department to produce a law that was in keeping with the constitution.

How hollow this appeal now sounds, given the events of the past week.

While an amended and somewhat improved version of the Bill was put before the Portfolio Committee during the course of last week, the process which was to follow was nothing more than a carefully orchestrated sham led by Committee Chair Thandi Tobias.

Tobias allowed members of the committee to make extensive inputs on the Bill, including DA MP Roy Jankielsohn who suggested a series of important amendments that would have tightened a number of vague definitions and would have made the legislation comply not only with the Constitution, but also with accepted international law.

At every turn Tobias gave the impression that a number of these amendments were agreed to and that they would be reflected in the revised version of the Bill.

However, after a long week of discussion and input, many of the proposed amendments and suggestions, including those from Jankielsohn and outside experts were simply ignored by the ANC members on the committee – bar some selective tinkering with the Bill.

When pressed to explain as to why earlier agreements had been ignored, the Chair had the audacity to lecture members on the importance of listening to what had been agreed to and what had not! The irony of such an exhortation was clearly lost on Ms Tobias.

She would be well served to take some of her own advice and listen more closely to the input of the people’s elected representatives, as well as a number of experts who poked numerous holes – indeed gaping fissures in the legislation.

The end result of the ANC’s deliberate sabotage of the parliamentary process is that we are now left with a piece of legislation which is not only possibly unconstitutional, but could also lead to a number of perverse consequences.

When the Bill was first tabled, Minister Lekota admitted that it was motivated by the government’s desire to stop South Africans from working in places such as Iraq.

However, in his desire to achieve this outcome it appears that Lekota and his ANC colleagues have thrown the baby out with the bathwater. The Bill will essentially criminalise South African’s ability to earn a living, will negatively impact on peacekeeping efforts in the DRC and Sudan and therefore ultimately undermine President Mbeki’s Africa policy.

Furthermore, by in effect making criminals of law-abiding citizens, the government will force the return of thousands of highly trained military personnel – people who would have every reason to feel disenchanted with the treatment afforded them by their government. And these people, having had their livelihoods taken away from them, if unable to find alternative employment would pose a very real security threat to the nation. Surely, such a perverse and unintended consequence should have been foreseen by government?

The Bill also places far too much authority in the hands of the National Conventional Arms Control Committee. This body, it must not be forgotten, has previously sanctioned the sale of arms to a number of countries where there is strong evidence of human rights violations - including to Columbia and Swaziland.

The Bill requires that individuals who wish to serve in foreign armed forces, or private security companies have to seek authorisation from the NCACC – thereby placing an inordinate amount of discretionary power in the hands of the NCACC and its chair, Sydney Mufamadi, whose daytime (and most would imagine more than full-time) job is to sort out the chaos at municipal government level.

Crucially, the NCACC can bar a citizen from joining an armed force, if such a force is currently involved in a theatre of conflict, which - according to Section 9 of the Bill - “would contribute to regional instability or negatively influence the balance of power in such a region or territory.” Such phrasing leaves the Bill wide open to political interpretation and could be applied to virtually any conflict in the world.

This provision applies equally to those wishing to join such a force, or who are already serving in a foreign army.

This means that someone who has already joined the British army, for example, must apply for authorisation. As the British involvement in Iraq could (or could not, depending on Mr Mufamadi’s whim) on face value be interpreted as being against Section 9 of the Bill, the NCACC would in all likelihood refuse such authorisation, leaving that individual with the impossible choice of giving up their job or relinquish his or her South African citizenship.

The question that needs to be asked is this: would the government be prepared to ensure that if such an individual chooses to return to South Africa, they would be guaranteed an equivalent position in the SANDF? This is unlikely, given that a large number of the South Africans currently serving in foreign armies or working for private security companies are doing so because their careers have been stalled in the SANDF, due largely to its transformation policy.

However indefensible the behaviour of the ANC on the committee was – it was sadly not a surprise.

On many previous occasions DA MPs, members of other opposition parties as well as members of civil society have attempted to engage the ruling party on flaws in important legislation. All too often the ANC has given the impression that it is listening, and then at the last minute demonstrates that these suggestions have fallen on deaf ears.

The end result is that the legislative process has become undermined by partisan and party political interests – to the detriment of South Africa’s democracy.

It appears that this government under President Mbeki, despite its overwhelming majority support, is becoming increasingly paranoid.

How else can its desire to ban law abiding citizens from seeking legitimate security work overseas be explained?

How else can its rush to disarm law abiding private citizens through the highly flawed Firearms Control Act be explained?

How else can its raid last year at the Military History Museum be rationalised? The police treated the museum as it were not a collection of military hardware and memorabilia, but rather an illicit stockpile of stolen armaments,

It seems that the ANC government is not only skittish about some kind of “counter-revolution” carried out by disaffected minorities, but is also driven by a far more damaging agenda – namely, to regulate all aspects of South African life.

In the last short while it has driven through Parliament a raft of legislation which puts more and more power in the hands of the state and takes away power from citizens – exactly the reverse of what is needed to strengthen our democracy.

It has already passed the Nursing Act and Education Laws Amendment Act, where despite substantial and justified objection, power has been centralised in the hands of the respective ministers. Parliament is also considering two further pieces of legislation, the Health Professions Amendment Bill and the National Sport and Recreation Amendment Bill – both of which are laws that will place even more power in the hands of ministers

With regard to all of these bills, public input was invited and debate was heard in committee. Yet when it came time for the legislation to be approved the majority party has run rough shod over most, if not all, of this input.

The result is that Parliament’s powers of oversight, while extensive in theory, are rarely used, despite pretences to the contrary. The President and his Cabinet enjoy near-total freedom in creating polices, crafting regulations and managing the administration of public affairs with little involvement by, or interference from, the people’s duly elected representatives.

This can only be to the detriment of our democracy. The time has come for those organisations who purport to care about the state of our democracy, such as IDASA to speak out loudly and strongly on the ANC’s marginalisation of parliament. If they do not, they will be complicit in their silence.

The DA for its part will continue to play its central role in preserving what is left of parliamentary oversight – and pushing the envelope for its extension, however uphill the struggle and uneven the terrain on which we operate. Our constitution represented a hard fought – and hard-won – victory against rule by decree and if we allow it to be surrendered then we would surely have destroyed better than we know.

Best wishes,