CONTENTS
Chapter 1:
Introduction
1.1
Constitutional precepts guiding the vision and mission of Parliament
1.2
Constitutional requirement for mechanisms on oversight
1.3
Composition and mandates of Parliament
1.4
Mandates of focus groups
Chapter
2: The role of Parliament in relation to oversight and accountability as
mandated by the Constitution
2.1
Defining oversight
2.2
Defining accountability
2.3
Constitutional provisions expressing powers and functions of Parliament on oversight and accountability
Chapter
3: Institutional characteristics of oversight and accountability and existing
mechanisms utilised by Parliament
3.1
Current mechanisms for oversight and accountability
3.2
Tools for oversight and accountability
Chapter 4: New
mechanisms for oversight and accountability
4.1
New mechanisms
4.2
Maximising current mechanisms
4.3
General recommendations
Chapter 5: Procedure for amending money bills
5.1
Terms of reference of Budget Focus Group
5.2
Recommendations
Chapter 6:
Co-ordination amongst the spheres of government on
oversight
6.1
Co-operative government
6.2
Values and principles guiding institutional
oversight
6.3 Introducing the parliamentary oversight cycle as a
guide for oversight processes
Chapter 7: Increasing
the capacity of committees and members
7.1
Training
7.2
Additional support
Chapter 8: Best
Practice Guide
8.1 Best Practice Guide
(BPG)
Chapter 9: Projects Focus Group [Constitutional
Landscape Governing Oversight]
9.1 Introduction
9.2
Audit of bodies performing public functions
9.3
Constitutional landscaping
9.4
Review of the rules
Chapter
10: Conclusion
References
Annexures
National Assembly and National Council of Provinces
1. The
Speaker and the Chairperson
(a) The
Speaker of the National Assembly and the Chairperson of the National Council of
Provinces, as co-chairpersons of the Joint Rules Committee, present the Second
Report of the Joint Rules Committee for 2008, as follows:
SECOND REPORT OF
JOINT RULES COMMITTEE, 2008
The Joint Rules Committee, having on 19 March 2008
considered the report of the Task Team on Oversight and Accountability in
regard to the Oversight and Accountability Model and having agreed to the model
in principle, recommends the model for consideration by the Assembly and the
Council:
CHAPTER 1: INTRODUCTION
1.1 Constitutional precepts guiding the vision
and mission of Parliament
Parliament's strategic vision is to build an effective people's Parliament
that is responsive to the needs of the people, and that is driven by the ideal of
realising a better
quality of life for all the people of South Africa and its mission is
to represent and act as a voice of the people in fulfilling Parliament's constitutional
functions of
passing laws and overseeing executive action.
Based on the vision and mission of Parliament and the constitutional
requirements Parliament hereby
develops mechanisms to guide its work on oversight in the form of an oversight model.
Historically,
the 1994 elections ushered in a new democratic order in
The
mandate of Parliament is achieved through passing legislation, overseeing
government action, and facilitating public participation and international
participation. The role of Parliament includes the promotion of the values of human dignity,
equality, non-racialism, non-sexism, the supremacy of the Constitution, universal adult suffrage and a
multi-party system of democratic government.
It upholds our citizens' political rights, the basic values and principles governing public administration, and
oversees the implementation of constitutional imperatives.
Much
of Parliament's focus in the first decade of democracy was on ensuring the
transformation of
In giving credence to
its increasingly important oversight role, Parliament's new strategic vision, namely to build an effective people's
Parliament "... that is driven by the ideal of realising a better quality
of life for all the people of South
Africa", underpinned the manner in which the organisation began engaging on the need to institutionalise public
participation as an integral part of its oversight function. The motivation for
political delegations to undertake the management of the legislative and
oversight programme of Parliament demands capacity, competence and collective
action.
1.2 Constitutional requirement
for mechanisms on oversight
Against
this backdrop, and in the context of sections 42(3) and 55(2)(b) of the
Constitution, as well as various provisions that imply oversight functions of the
National Council of Provinces, Parliament through the Joint Rules
Committee established a Task Team on Oversight and Accountability comprising members of
both Houses of Parliament, which studied the mandates relating to oversight emanating from the Constitution.
The task team established three focus groups, that of, the Projects Focus
Group, the Budget and the Committees. The objective was to develop an oversight model for Parliament in line
with the Constitution and Parliament's new strategic vision, together with the
realignment of resources to fulfil its mandate with greater efficiency.
The model's primary objective is to provide the framework that describes
how Parliament conducts oversight. It seeks to improve existing tools of parliamentary
oversight, streamline components of the new oversight model with existing
components, and enhance Parliament's capacity to fulfil its oversight function in line with
Parliament's new strategic direction.
Furthermore, the rationale for the Oversight and Accountability Model
was to scrutinise existing practices and/or mechanisms used as a prototype, something to
be measured or standardised,
and thereafter interrogate and offer alternatives that could be utilised in the
future. An oversight and accountability
model must therefore comprise the most important, features, which include -
the values and principles by which Parliament conducts oversight;
the mechanism or framework to conduct oversight; and
the processes and resources required for conducting oversight.
The
model is not dogmatic and will adapt from time to time depending on the context
and circumstances.
1.3 Composition and mandates
of Parliament
Parliament consists of two Houses, namely the National Assembly (NA) and
the National Council
of Provinces (NCOP).
Section 42(3) of the Constitution provides that the National Assembly is
elected to represent the people and to ensure government by the people under
the Constitution. It does this by choosing the president, by providing a
national forum
for public consideration of issues, by passing legislation and by scrutinising
and overseeing executive
action. The Assembly is further required in terms of section 55(2) to provide mechanisms to ensure
that all 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, including the implementation of legislation, and any organ of state.
The National
Council of Provinces represents the provinces to ensure that the provincial
interests are taken into account in the national sphere of government as stated
in section 42(4) of the Constitution. The Council does this mainly by participating in the national
legislative process and by providing a national forum for public consideration of issues affecting the
provinces. The Council's role is to exercise oversight over the national aspects of provincial and local government.
It contributes to effective
government by ensuring that provincial and local concerns are recognised in
national policy making and that
provincial, local and national governments work together effectively.
In addition,
Parliament -
facilitates public participation, involvement and transparency;
facilitates co-operative government;
facilitates international participation; and
represents the interests of the people.
Based
on these mandates, the Constitution further requires Parliament to develop mechanisms
for oversight.
1.4 Mandates of focus groups
1.4.1 Projects
Focus Group [Constitutional Landscape Governing Oversight]
The terms of
reference of this group were to -
conduct constitutional landscaping;
conduct an audit of bodies performing public functions;
analyse the oversight role of institutions supporting democracy; and
review rules on oversight.
1.4.2 Committees Focus Group
The terms of reference of this group were to -
draft the best practice guide in respect of oversight practices of
committees;
draft
guidelines for portfolio and select committees to allow for joint planning and oversight
work;
draft guidelines on joint planning on protocols for structured
communication between
the two Houses of Parliament;
draft recommendations for capacity development of committees; and
draft recommendations on appropriate record-keeping systems and
monitoring mechanisms
in the Committee Section.
1.4.3 Budget Focus Group
The terms of
reference of this group were to -
develop procedure for the amendment of money bills; and
draft legislation on the amendment of money bills.
CHAPTER 2: THE ROLE
OF PARLIAMENT IN RELATION TO OVERSIGHT AND ACCOUNTABILITY AS
MANDATED BY THE CONSTITUTION
2.1 Defining oversight
The conventional
In the South African context, oversight is a
constitutionally mandated function of legislative organs of state
to scrutinise and oversee executive action and any organ of state.
It follows that oversight entails the informal and formal, watchful,
strategic and structured scrutiny exercised by legislatures in respect of the
implementation of laws, the application of the budget, and the strict observance of statutes and
the Constitution. In addition, and most importantly, it entails overseeing the effective management of
government departments by individual members of Cabinet in pursuit of improved
service delivery for the achievement of a better quality of life for all citizens.
In terms of the provisions of the Constitution and the Joint Rules,
Parliament has power to conduct oversight of all organs of state, including those at
provincial and local government level.
The
appropriate mechanism for Parliament to conduct oversight of these organs of
state would be through
parliamentary committees. In conducting oversight, the committee would either
request a briefing from the organ of state or visit the organ of state for fact-finding,
depending on the purpose of the oversight. The committees would have to
consider the appropriate
means for conducting oversight to cover all organs of state.
One of the most important aspects of the oversight function is the
consideration by committees of annual reports of organs of state and the
Auditor-Generals reports.
2.1.1 Functions of oversight
The concept of oversight contains many aspects which include political,
administrative, financial, ethical, legal and strategic elements. The functions of
oversight are:
To detect and prevent abuse, arbitrary behaviour or illegal and
unconstitutional
conduct on the part
of the government and public agencies. At the core of this
function is the
protection of the rights and liberties of citizens.
To hold the government to account in respect of how the taxpayers money
is used. It
detects waste within the machinery of
government and public agencies. Thus it can
improve the efficiency, economy and
effectiveness of government operations.
To ensure that policies announced by government and authorised by
Parliament are
actually delivered. This function includes monitoring the achievement of goals
set by
legislation and the
government's own programmes.
To improve
the transparency of government operations and enhance public trust in
the government, which is itself a condition
of effective policy delivery.
2.2
Defining accountability
Accountability can be broadly defined as -
a social relationship where an actor (an individual or
an agency) feels an obligation to explain
and justify his or her conduct to some significant other (the accountability forum, accountee, specific person or agency).
Ghutto. S
Accountability is the hallmark of modern democratic governance.
Democracy remains clichιd if those in power cannot be held accountable in public for their acts or
omissions, for their decisions, their expenditure or policies. Historically, the concept of accountability
was closely linked
to accounting in the financial sense. It has however moved far beyond its
origins and has
become a symbol of good governance both in the public and private sectors. Accountability refers
to institutionalised practices of giving account of how assigned responsibilities are
carried out.
2.2.1 Functions of accountability
The functions of
accountability include the following:
To enhance the integrity of public governance in order to safeguard
government against
corruption, nepotism, abuse of power and other forms of inappropriate behaviour.
As an institutional arrangement, to effect democratic control.
To improve performance, which will foster institutional learning and
service delivery.
In regard to transparency, responsiveness and answerability, to assure public confidence in government and bridge
the gap between the governed and the government
and ensure public confidence in government.
To enable the public to judge the performance of the government by the
government giving account in public.
Notwithstanding the fact that section 55 of the Constitution enables the
National Assembly to maintain oversight over all organs of state and section 92 which enables
Parliament to hold the Cabinet accountable operationally, organs of state at national level and
Ministers and their departments are generally held to account by Parliament. At
national level, there is direct accountability to Parliament by national departments, national public
entities and national bodies such as
commissions.
The National Assembly does however have the right to call organs of
state at provincial and local level to account, but does not do so operationally unless there
are issues of public importance, national interest and shared competencies. Accountability to
Parliament by organs of state at provincial and local level must be conducted
through observance of the Intergovernmental Framework Relations Act and the
principles of co-operative government.
When
national departments account to Parliament by means which include the
submission of reports, for example
annual reports etc, Parliament needs to be informed of the complete picture of the performance of the functions
reported on. The consideration of the annual report of the department alone may not give the complete picture of the
performance of the functions. This is
so because national departments have public entities that are agencies of implementation of their functions, and their
activities may not be reported in the annual report of the national department.
The
annual reports of organs of state that report to national departments must be considered when evaluating the annual
report of the national department for Parliament to have a complete picture of the performance of the functions reported on.
If further accountability is required, committees could use the power
provided in the Constitution to access information even from public bodies that are at
provincial or local government
level in order that the committee has complete information and details on the public function reported on. Where a parliamentary
committee is reviewing the performance of a national organ of state, the committee must ensure that the
performance of its other entities,
ie subsidiaries of the main organ of state, is included in the report to
Parliament. If this is not included in the report, Parliament should in terms
of sections 56(b) and 69(b) of the Constitution
require of the entity to report to it so that Parliament has the complete picture.
In conducting oversight and accountability, the principles of
co-operative government and intergovernmental relations must be taken into
consideration, including the separation of powers and the need for all spheres of government and
all organs of state to exercise their powers and perform their functions in a
manner that does not encroach on the geographical, functional or institutional
integrity of government in another sphere.
The illustration (Figure 1) below depicts the linkages in creating
efficiency and ensuring co-ordination on co-operative government which
ultimately lead to oversight and accountability at national, provincial and local
levels of government.
Figure 1
2.3 Constitutional provisions expressing
powers and functions of Parliament on oversight
and accountability
The relevant
constitutional provisions that refer directly and indirectly to oversight and accountability are
the following:
|
Section 41(2) |
An Act of
Parliament must establish or provide for structures and institutions to
promote and facilitate intergovernmental relations and must provide for
appropriate mechanisms and procedures to facilitate settlement of intergovernmental
disputes. |
|
Section 42(3)
& (4) |
(3) The National
Assembly is elected to represent the people and to ensure government by the
people under the Constitution. It does this by choosing the President, by providing
a national forum for public consideration of issues, by passing legislation
and by scrutinising and overseeing executive action. (4) The National Council of Provinces
represents the provinces to ensure that provincial interests are taken into
account in the national sphere of government. It does this mainly by
participating in the national legislative process and by providing a national forum for
public consideration of issues affecting provinces. |
|
Section 55(2) |
The National Assembly
must provide for mechanisms (a) to ensure that
all executive organs of
state in the national sphere of government are accountable to it; and (b) to maintain
oversight of - (i) the exercise
of national executive authority, including the implementation of legislation; and (ii) any organ of
state. |
|
Section 56 |
The National
Assembly or any of its committees may - (a) summon any
person to appear before it to give evidence on oath or affirmation, or
to produce documents; (b) require any
person or institution to report to it; (c) compel, in
terms of national legislation or the rules and orders, any person or
institution to comply with a summons or requirement in terms of paragraph (a)
or (b); and (d) receive petitions,
representations or submissions from any interested persons or institutions. |
|
Section 66(2) |
The National
Council of Provinces may require a Cabinet member, a Deputy Minister or
an official in the national executive or a provincial executive to attend
a meeting of the Council or a committee of the Council. |
|
Section 67 |
Not more than 10
part-time representatives designated by organised local government
representing the different categories of municipalities may participate in the
proceedings of the National Council of Provinces when necessary, but may not
vote. |
|
Section 69 |
The National
Council of Provinces or any of its committees may (a) summon any
person to appear before it to give evidence on oath or affirmation, or to
produce documents; (b) require any
person or institution to report to it; (c) compel, in
terms of national legislation or the rules and orders, any person or
institution to comply with a summons or requirement in terms of paragraph (a)
or (b); and (d) receive
petitions, representations or submissions from any interested persons or
institutions. |
|
Section 70(1) |
The National
Council of Provinces may (a)
determine and control its internal arrangements,
proceedings and procedures; and (b)
make rules and orders concerning its business, with
due regard to representative and participatory democracy, accountability,
transparency and public involvement. |
|
Section 89 |
(1) The National
Assembly, by a resolution adopted with a supporting vote of at least two
thirds of its members, may remove the President from office only on the
grounds of (a) a serious
violation of the Constitution or the law; (b) serious
misconduct; or (c) inability to
perform the functions of office. (2) Anyone who has been removed from the office
of President in terms of subsection (1)(a) or (b) may not receive any benefits of that
office, and may not serve in any public office. |
|
Section 92 |
(2) Members of the
Cabinet are accountable collectively and individually to Parliament for the
exercise of their powers and the performance of their functions. (3) Members of the
Cabinet must
provide Parliament with full and regular reports concerning
matters under their control. |
|
Section 93(2) |
Deputy Ministers
are accountable to Parliament for the exercise of their powers and the
performance of their functions. |
|
Section 100(2) |
If the national
executive intervenes in a province by assuming responsibility for the relevant
obligation which that province cannot or does not fulfil, the national
executive must submit a written notice of the intervention to the National
Council of Provinces within 14 days after the intervention began. The
intervention must end if the Council disapproves the intervention within 180 days
after the intervention began or by the end of that period has not approved
the intervention. The Council must, while the intervention continues, review
the intervention regularly and may make any appropriate recommendations to the national
executive. |
|
Section 102 |
(1) If the
National Assembly, by a vote supported by a majority of its members, passes a
motion of no confidence in the Cabinet excluding the President, the President
must reconstitute the Cabinet. (2) If the National
Assembly, by a vote supported by a majority of its members, passes a motion
of no confidence in the President, the President and the other members of the
Cabinet and any Deputy Ministers must resign. |
|
Section 114(2) |
A provincial legislature must provide for mechanisms (a) to ensure that all provincial executive organs of state in the
province are accountable to it; and (b) to maintain oversight of - (i) the exercise of provincial executive authority in the province,
including the
implementation of legislation; and (ii) any provincial organ of state. |
|
Section 125(4) |
Any dispute concerning the administrative capacity of a province in
regard to
any function must be referred to the National Council of Provinces for
resolution within 30 days of the date of the referral to the Council. |
|
Section 133 (2)
& (3) |
(2) Members of the Executive Council of a province are accountable collectively and
individually to the provincial legislature for the exercise of their powers and
the performance of their functions. (3) Members of the Executive Council of a province must provide the provincial
legislature with full and regular reports concerning matters under their
control. |
|
Section 139(2) |
If a provincial executive intervenes in a municipality which cannot or does not
fulfil an executive obligation by assuming responsibility for the relevant
obligation in that municipality, the provincial executive must submit a written
notice of the intervention to the Cabinet member responsible for
local government affairs and the relevant provincial legislature and the
National Council of Provinces within 14 days after the intervention began. The intervention must end if the Cabinet member responsible for local
government affairs disapproves the intervention within 28 days after the
intervention began or by the end of that period has not approved the
intervention, or if the Council disapproves the intervention within 180 days after the
intervention began or by the end of that period has not approved the intervention.
The Council must, while the intervention continues, review the intervention
regularly and may make any appropriate recommendations to the provincial
executive. |
|
Section 139(3) |
When the relevant provincial executive intervenes in a municipality
which cannot or does not
fulfil an executive obligation by dissolving the Municipal Council, the
provincial executive must immediately submit a written notice of the
dissolution to the Cabinet member responsible for local government affairs
and the relevant provincial legislature and the National Council
of Provinces. The dissolution takes effect 14 days from the date of receipt
of the notice by the Council unless set aside by that Cabinet member or the
Council before the expiry of those 14 days. |
|
Section 139(6) |
If a provincial executive intervenes in a municipality in terms of
subsection (4) or (5), it must submit a written notice of the intervention to
(a)
the Cabinet member responsible for local government
affairs; and (b)
the relevant provincial legislature and the National
Council of Provinces within seven days after the intervention began. |
|
Section 146(6) |
A law made in terms of an Act of Parliament or a provincial Act can
prevail only
if that law has been approved by the National Council of Provinces. |
|
Section 154(1) |
The national government and provincial governments, by legislative and
other measures, must support and strengthen the capacity of municipalities to
manage their own affairs, to exercise their powers and to perform their
functions. |
|
Section 155(6) |
Each provincial government must establish municipalities in its
province in a
manner consistent with the applicable national legislation and, by legislative or
other measures, must - (a) provide for the monitoring and support of local government in the province; and (b) promote the development of local government capacity to enable municipalities
to perform their functions and manage their own affairs. |
|
Section 155(7) |
The national government, subject to section 44, and the provincial governments have
the legislative and executive authority to see to the effective performance
by municipalities of their functions in respect of matters listed in
Schedules 4 and 5, by regulating the exercise by municipalities of their
executive authority. |
|
Section 194(1) |
The Public Protector, the Auditor-General or a member of a Commission established by this
Chapter may be removed from office only on (a)
the ground of misconduct, incapacity or incompetence; (b)
a finding to that effect by a committee of
the National Assembly; and (c)
the adoption by the Assembly of a resolution calling
for that person's removal from office. |
|
Section 199(8) |
To give effect to the principles of transparency and accountability,
multi-party parliamentary
committees must have oversight of all security services in a manner determined by national
legislation or the rules and orders of Parliament. |
|
Section 201(3)
& (4) |
(3) When the defence force is employed in co-operation with the police
service; in defence of the Republic or in fulfilment of an international obligation,
the President must inform Parliament promptly and in appropriate
detail. (4) If Parliament does not sit during the first seven days after the
defence force is employed as envisaged in subsection (2), the President must
provide the required information to the appropriate oversight
committee. |
|
Section 203 |
(1) The President as head of the national executive may declare a
state of national
defence, and must inform Parliament promptly and in appropriate detail of - (a) the reasons for the declaration; (b) any place where the defence force is being employed; and (c) the number of people involved. (2) If
Parliament is not sitting when a state of national defence is declared, the
President must summon Parliament to an extraordinary sitting within seven days of the
declaration. (3) A declaration of a state of national defence lapses unless it is
approved by Parliament within seven days of the declaration. |
|
Section 206(9) |
A provincial legislature may require the provincial commissioner of
the province to appear
before it or any of its committees to answer questions. |
|
Section 210 |
National legislation must regulate the objects, powers and functions
of the intelligence
services, including any intelligence division of the defence force or police
service, and must provide for - (a) the co-ordination of all intelligence services; and (b) civilian monitoring of the activities of those services by an
inspector appointed by the President, as head of the national executive, and
approved by a resolution adopted by the National Assembly with a supporting
vote of at least two thirds of its members. |
|
Section 216(3)
& (4) |
(3) A decision to stop the transfer of funds due to a province
. may
be enforced immediately, but will lapse retrospectively unless Parliament
approves it. (4) Parliament may renew a decision to stop the transfer of funds for
no more than 120 days at a time. |
|
Section 231(2), (3)
& (4) |
(2) An
international agreement binds the Republic only after it has been approved by
resolution in both the National Assembly and the National Council of Provinces,
unless it is an agreement referred to in subsection (3). (3) An
international agreement of a technical, administrative or executive nature,
or an agreement which does not require either ratification or accession,
entered into by the national executive, binds the Republic without approval
by the National Assembly and the National Council of Provinces, but must be tabled in
the Assembly and the Council within a reasonable time. (4) Any
international agreement becomes law in the Republic when it is enacted into law
by national legislation; but a self-executing provision of an agreement that
has been approved by Parliament is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament. |
In the
context of the constitutionally mandated provisions of accountability and
oversight as listed above, the chapters
below detail the existing processes undertaken by the South African Parliament
to fulfil its constitutional oversight and accountability obligations. The focus is also placed on the gaps in current rules
pertaining to oversight, and some mechanisms
are recommended to address these challenges.
CHAPTER 3: INSTITUTIONAL CHARACTERISTICS OF OVERSIGHT AND ACCOUNTABILITY AND EXISTING MECHANISMS UTILISED BY PARLIAMENT
3.1 Current
mechanisms for oversight and accountability
Parliament has
established mechanisms to fulfil its oversight and accountability mandates in terms of the
Constitution and under the rules established by the two Houses, individually
and jointly. Committees
can interact with civil society organisations, organised business, experts and
professional bodies as a way of enhancing accountability and can call Ministers and departmental heads to
account on any issue relating to any matter over which they are
effecting accountability within the ambit of the provisions of sections 56 and
69 of the Constitution
and legislation. Current practices and oversight mechanisms include the committees of Parliament
(with their associated practices) and plenary processes as listed below.
3.1.1 Practices of committees to effect oversight
and accountability
The mandates of the committees are provided for in the rules of each
House and the Joint Rules. Committees offer a setting which facilitates detailed scrutiny of
legislation, oversight of government activities and interaction with the public and external
factors. Consideration of committee reports is necessary because committees
work as intermediary bodies between interest groups and government and are an entry point
for citizens to the work of Parliament. In addition, the work of committees include study
visits that entail physical inspections, conversing with people, assessing the impact of delivery and developing
reports for adoption by committees which
contain recommendations for the Houses to consider. In exercising oversight, committees often obtain
first-hand knowledge from people engaged in the direct implementation of specific programmes and/or who are directly
responsible for service delivery. In order to evaluate the work of
government from a broader perspective, committees may invite experts from outside government to provide background knowledge
and analysis on relevant issues.
Reports and mandates
of committees
Parliamentary
committees are established as instruments of the Houses in terms of the
Constitution, legislation, the Joint Rules, Rules of the NCOP, Rules of the NA,
and resolutions of the Houses to facilitate oversight and the monitoring of the Executive, and for this
purpose they are provided with procedural, administrative and logistical
support - they are regarded as the engine rooms of Parliament.
Parliamentary
committees have various tools of oversight as listed above, including
departmental briefing sessions, annual and departmental budget analyses, calls
for submissions and
petitions from the public, the consideration of strategic plans and annual
reports, and public hearings.
Whilst committees have established ways of conducting their oversight
functions, their business generally runs parallel to government's political cycle, unless
there are specific "ad hoc" oversight functions that are required. In
programming their oversight activities, they would thus act in a responsive/reactive manner.
A committee conducts its business on behalf of the House and must
therefore report back to the House on matters referred to it for consideration
and report. A committee may also report on any other matter within the scope of its mandate
that it considers necessary in terms of NA Rule 137(2) and NCOP Rule 102(2).
When
a committee reports its recommendations to the House for formal consideration
and the House adopts the Committee report, it gives the recommendations the
force of a formal House resolution pursuant to its constitutional function of
conducting oversight. The House then also monitors executive compliance with these
recommendations.
The following types of committee reports are presented to the House:
1.
Legislation (in terms of sections 74, 75, 76 or 77 of the Constitution);
2.
Study tours;
3.
Oversight activities of committees, including responses to annual
reports and financial
statements of departments;
4.
International agreements;
5.
Private members legislative proposals;
6.
Budget votes;
7.
Petitions;
8.
Statutory provisions (for example the filling of vacancies in a
statutory body);
9.
Annual reports of committee activities and performance against their
strategic plans;
10. Any matter referred
to committees for consideration and report in terms of NA Rule 137 and NCOP
Rule 102.
Once a report has been adopted by the House, the Speaker communicates
the recommendations of the House to the relevant Minister and copies the relevant
House Chairperson, portfolio committee Chairperson and Director-General. The Speaker
also requests the Minister to direct his or her responses to the Speaker for formal tabling.
The
Secretary to Parliament communicates with the Director-General in the
Presidency on all resolutions.
Portfolio committees
of the NA and select committees of the NCOP
The
mandate of oversight resides with the NA and the NCOP and through their
respective rules,
the NA establishes portfolio committees and the NCOP establishes select committees.
Portfolio committees mirror portfolios in government whilst select committees mirror the clusters
in government. Due to the fact that committees conduct their business on behalf
of their respective Houses, they report to the relevant House individually and
separately on matters referred to them to ensure that each House may make any
decisions it deems necessary.
Joint committees
Joint
committees are committees that are established in terms of the Joint Rules and have similar powers to
portfolio committees and select committees, except that they have specific
mandates relating to transversal issues, such as women, children, youth and disability.
Ad hoc committees
When necessary, Parliament establishes ad hoc committees to assist in
its investigation of transversal issues.
Joint standing committees
Parliament, in accordance with the Constitution, legislation and the
rules, can establish standing committees. Two joint standing committees
currently exist in Parliament through legislation, namely the Joint Standing Committee on
Intelligence and the Joint Standing Committee on Defence.
Specialised
committees
The NA Rules and the Public Audit Act (No 25 of 2004) establish the
Committee on the Auditor-General with a mandate to maintain oversight over the Auditor-General
and perform functions in terms of the Public Audit Act. The Joint Committee on
Ethics and Members' Interests is established by the Joint Rules (Rule 121) to implement
the Code of Conduct for Assembly and permanent Council members and develop standards of
ethical conduct for Assembly and Council members. The Committee on Public Accounts is established by the
NA Rules (Rule 204) and is tasked with
considering financial statements of all executive organs of state and
constitutional institutions, any
audit reports issued on those statements as well as any reports issued by the Auditor-General on the affairs of
any executive organ of state or other public bodies or any other financial statements or reports referred to the
committee in terms of the rules.
3.1.2
Plenary processes for effecting oversight and
accountability
Budget Votes
Budget
votes occur when the Minister of Finance announces the budget projections for
the next financial year,
as well as the budget votes of each Minister (department). In the Budget the Minister of Finance
sets out how much money the government will spend in the following year. Parliament
must approve the Budget. Subsequent to the presentation of the Budget by the Minister of
Finance, each parliamentary committee has hearings with the government
department over which that committee exercises oversight and can also check whether
the department kept the
promises of the previous year and spent taxpayers money properly. The budget votes are
debated in the National Assembly and the National Council of Provinces once
committees have finished discussing the different budget votes.
Questions
Section
92 of the Constitution stipulates that members of the Cabinet are accountable collectively and
individually to Parliament for the exercise of their powers and the performance of their functions.
The procedure of putting questions to the Executive is one of the ways in which
Parliament holds the Executive to account.
Questions can be put for oral or written reply to the President, the
Deputy President and the Cabinet Ministers on matters for which they are
responsible. Question time affords members of Parliament the opportunity to
question members of the Executive on service delivery, policy and other
executive action on behalf of both their political parties and the electorate.
Members statements
This is the process
whereby members of Parliament are afforded the opportunity to make statements
on any matter in the House.
Statements by
Cabinet members
Ministers
may make factual or policy statements in relation to government policy, executive
action and other
similar matters of which the Assembly should be informed. The Minister asks the
Speaker for the opportunity to make such a statement, which should not be longer than
20 minutes.
Notices of motion
Motions are one of the mechanisms available to members of all political
parties which can be used to help fulfil their oversight responsibilities in Parliament by
bringing issues to Parliament for debate. Notice must be given of a motion unless it is by way of an
amendment to a draft resolution, raising a point of order or a question of privilege, the
postponement or discharge of or
giving precedence to an order for the day, referring a bill to a committee, the
proposal of a draft resolution on the report
of a committee immediately after a debate on the report has been concluded, or
in regard to which notice is dispensed with by the unanimous concurrence of all the members present. Notice must
be given of every motion since in principle the House must be informed in advance of any substantive motion so that
members and parties have time to
prepare to debate it. Notices of motion are therefore a vital tool which can be
used by members to bring matters of political importance before Parliament for
debate or a decision.
Motions without
notice
Motions
which require notice may be moved without notice provided no single member present objects. It is
therefore common practice for parties to be consulted before the House meets
when seeking to move a motion without notice, and to inform the presiding
officer of the intention to do so. Motions without notice are moved when the
presiding officer calls for any formal motions, usually near the beginning of
the days sitting. This medium allows for consultation between parties to obtain consensus on
issues that must be brought to the attention of the House.
Plenary debates
Plenary debates are a further means to bring important information to
the attention of the Executive
regarding specific government programmes and legislation required to improve service delivery. In plenary debates, certain
mechanisms for conducting oversight are used. These include question time, the consideration of committee reports,
showcasing, scrutinising and debating
the implementation of policy and budget votes, members statements and questions by members of Parliament, which draw
the attention of the Executive to the concerns
of members constituents.
3.1.3 Use of
activities and reports from state institutions supporting constitutional
democracy to enhance Parliament's oversight functions
These
institutions have particular mandates as provided for in the Constitution and
by way of additional Acts of Parliament that prescribe their functions and
powers. The institutions are independent and subject only to the Constitution
and the law, and they must be impartial and must exercise their powers and perform their functions
without fear, favour or prejudice. In terms of section 181(3) of the Constitution other
organs of state, through legislative measures, have to assist and protect the
aforementioned institutions to ensure their independence, impartiality, dignity and effectiveness.
In terms of section 181(5) these institutions are accountable to the
National Assembly and must report on their activities and the performance of their
functions to the Assembly at least once a year.
The institutions are:
The Auditor-General (AG);
The Commission for Gender Equality (CGE);
The Public Protector (PP);
The Electoral Commission (EC);
The South African Human Rights Commission (SAHRC); and
The Commission for the Promotion and Protection of the Rights of
Cultural, Religious
and Linguistic Communities (CRL Rights Commission).
The task team considered the views and concerns raised by state institutions
supporting constitutional democracy during the interviews and in their
submissions. Weaknesses were identified in the current parliamentary mechanisms. However, concomitant
to the work conducted
by the task team, Parliament established the Ad Hoc Committee on the Review of Chapter 9 and
Associated Institutions. The committee's mandate was broader than that of the task team
and as a result it was agreed that direction would be obtained from the outcomes of that
process.
It is recommended that Parliament develop clear mechanisms to enable the reporting by
state institutions supporting constitutional democracy on their activities and
the performance of their functions as prescribed in the Constitution and
related Acts of
Parliament.
The
second recommendation is for Parliament to put in place processes in order to allow the
reports to be referred to committees for consideration, oversight, and
reporting back on issues to plenary sessions.
3.1.4 Other statutory institutions supporting
democracy
Financial and Fiscal
Commission (FFC)
The FFC is an advisory body and has a mandate to make recommendations on
financial and fiscal
matters to Parliament, the provincial legislatures, and any other institutions
of government when necessary.
The FFC is separate from government and is therefore able to perform impartial
checks and balances between the three levels of government. It facilitates
co-operative government on intergovernmental fiscal matters. At least 10 months
before the start of each financial year, the Commission must submit
recommendations for that financial year to both Houses of Parliament and the
provincial legislatures, with particular regard to:
An equitable division of revenue raised nationally, amongst the national,
provincial and local spheres of government;
The determination of the equitable share of each province when revenue
is divided between the nine provinces; and
Any other allocations to provinces, local government or municipalities
from the national government's share of that revenue, and any conditions on
which those allocations should be made.
National
Youth Commission (NYC)
The National
Youth Commission is a statutory body of government established through the
National Youth Commission Act, No 19 of 1996. The Commission consists of five full-time members, five part-time members
and nine commissioners, nominated by
Premiers of each province and appointed at national level. The National Youth Policy has been designed to
address the major needs, challenges and opportunities of young men and women.
Pan
South African Language Board (Pansalb)
The
purpose of the Pan South African Language Board is to promote multilingualism in
creating the
conditions for the development and equal use of all official languages;
fostering
respect for and encouraging the use of other languages in the country; and
encouraging
the best use of the country's linguistic resources to enable South Africans to
free themselves from all forms of linguistic discrimination, domination and
division, and to enable them to exercise appropriate linguistic choices for
their own wellbeing, as well as for national development.
Public
Service Commission (PSC)
The PSC derives its mandate from sections 195 and 196 of the
Constitution. The
PSC is tasked and empowered, amongst others, to investigate, monitor and
evaluate the organisation
and administration of the public service. This mandate also entails the evaluation of
achievements, or lack thereof, of government programmes. The PSC also has an obligation to promote measures that
will ensure effective and efficient performance within the public service and to promote basic values and principles of
public administration, as set out in the Constitution, throughout the public
service.
Independent
Communications Authority of
The Independent Communications Authority of South Africa derives its
mandate from several statutes: The Independent Communications Authority of South Africa Act
of 2005, the Independent Broadcasting Authority Act, the Broadcasting Act and
the South African Telecommunications Regulatory Authority Act and the Icasa
Amendment Act. The Electronic Communications Act substantially amended the IBA
Act of 1993 and the Broadcasting Act of 1999. The Authority regulates the telecommunications
and broadcasting industries in the public interest. Its key functions are to:
make regulations and policies that govern broadcasting and telecommunications;
issue licences to providers of telecommunications services and
broadcasters;
monitor the environment and enforce compliance with rules, regulations
and policies;
hear and decide on disputes and complaints brought by industry or
members of the public against licensees
plan, control and manage the frequency spectrum; and
protect consumers from unfair business practices, poor quality services
and harmful or inferior products.
Organs of state
An
"organ of state" is defined in section 239 of the Constitution as
(a)
any department of state or administration in the national, provincial or local
sphere of government; or
(b)
any other functionary or institution
(i)
exercising a power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation, but does not include a court or a judicial officer
.
Section 239 divides
organs of state essentially into two categories. The first category is
descriptive in terms of which organs of state are defined as any department of state or administration in the national, provincial or local sphere
of government. This category
is, we believe, self defining. For example, in its interpretation of this first
category, the Corder Report (1999: 13)
included bodies represented in Cabinet as comprising "national executive
authority", where accountability is vested at the political level via the
doctrine of ministerial responsibility (section 92(2)). The terms any
department of state or administration" can further be traced to the Public
Service Act (No 103 of 1994), which refers specifically to national and
provincial "departments", and other departments. Finally, the
inclusion of the term "local" in
this category in section 239 must also logically include municipalities, as
these constitute administrative bodies operating in the local sphere of
government.
The second category
in section 239 is subdivided, and focuses on the conduct or activity of the organ of state and on the empowering provisions.
These two subcategories are:
section 239(b)(i): any other functionary or institution exercising a
power or performing
a function in terms of the Constitution or any provincial constitution; and
section 239(b)(ii): any other functionary or institution exercising a
public power or performing a public function in terms of any legislation, but
does not include a court or a judicial officer.
If the
institution or functionary is exercising a power or performing a function in
terms of the Constitution or a provincial
constitution, then it is an organ of state. The nature of the power exercised
or the function performed is irrelevant. In this category, the source of the
power is the determining criterion.
All organs of state in the national sphere of government must account to
the National Assembly and they do this mainly by way of the submission of
annual reports. As per section 55(2)(b)(ii), the Assembly has power to conduct
oversight over all organs of state.
There
is an increasing number of listed organs of state, of which only national
organs of state are required to submit their annual reports to Parliament as part of
their accountability to Parliament, based on sections 55(2)(a) and 69(b) of the
Constitution in that the executive organs of state in the national sphere of
government account to Parliament.
Other public bodies and institutions listed as national organs of state include institutions such as universities
and business units or subsidiaries of other national organs of state. These institutions do not have to table their annual
reports in Parliament because their
activities are reported on in the annual reports of the main public entities
they belong to. For example,
Intersite Property Management Services (Pty) Ltd is a subsidiary of the SA Rail Commuter Corporation Ltd and should be
reported on in the annual report of the SA Rail Commuter Corporation Ltd.
Information
in relation to public bodies as commissioned from the Human Sciences Research Council (HSRC)
Report will be used as the main source to establish which institutions are required to report to
Parliament. In this regard, Parliament will know which institutions are
supposed to table annual reports as required by the Public Finance Management
Act and related legislation.
It
is important when departments or public entities at national level account to
Parliament through
the National Assembly and when provinces report to the National Council of
Provinces that both Houses are informed of the complete scope of the function that the
department or public entity is reporting on.
It is therefore
recommended that the performance of these other public bodies and institutions
be included in the reports to Parliament. If not, Parliament can, in terms of
sections 56(b) and 69(b) of the Constitution, require of the entity to report to it in
order that Parliament has the complete picture of the function reported on. In this
regard, the mandate of the National Assembly by virtue of section 55(2)(b)(ii)
entitles it to exercise oversight over all organs of state. A list of all organs of state,
public bodies and institutions are attached hereto for reference purposes to assist portfolio and
select committees to identify which institutions are required to report and be accountable to
them.
3.2 Tools for oversight and accountability
Currently
Category 1:
Constitution of the Republic
Legislation
Government Programme of Action [5-year plan].
Category 2:
State-of-the-Nation Address
Questions (written and oral)
President
Deputy President
Ministers
Members statements
Ministerial statements
Debates in the House
Matters from constituency work
Private members bills
Individual members oversight
Committee reports on legislation and oversight activities
Committee reports on international agreements
Departmental strategic plans
Departmental current and past annual performance plans
Annual reports (including
annual financial statements, statements
on programme performance and
human resource information)
Performance contracts
Departmental compliance with parliamentary committee recommendations.
Category 3:
Budget Speech
Estimates of National Expenditure (ENE)
Division of Revenue Bill
Estimates of National Revenue
Budget Review
Ministers' budget vote speeches
Departmental budget votes
Treasury Regulations relating to strategic planning
Reports of the Auditor-General (including performance reports)
Treasury reports (monthly and quarterly reports)
Audit Reports (Scopa)
Medium-Term Budget Policy Statement (MTBPS)
Adjusted Estimates of National Expenditure
Intergovernmental Fiscal Relations report
Public Finance Management Act (PFMA)
Financial statements (monthly
financial reports and
quarterly performance reports)
Statistics
Category 4:
Reports on investigated matters of relevance by institutions supporting
constitutional democracy (ISDs)
and other statutory
institutions supporting democracy for
consideration by Parliament.
CHAPTER
4: NEW MECHANISMS FOR OVERSIGHT AND ACCOUNTABILITY
4.1 New mechanisms
The previous
sections outlined the current parliamentary oversight and accountability mechanisms and practices. The sections below
highlight potential mechanisms to further strengthen oversight and
accountability:
4.1.1 Institutional mechanisms
Notwithstanding the existing rules on conferral, it is
proposed that where committees are clustered for oversight and other legislative work, they
should be able to report jointly on matters that are transversal and for the
House to adopt such a cluster report.
Reports and matters arising from the same delegations representing
Parliament at organisations, such as the Commonwealth Parliamentary Association,
Inter-Parliamentary Union, Pan African Parliament, SADC Parliamentary Forum,
Africa Caribbean and Pacific-European Union Joint Parliamentary Assembly and others, should also be tabled and be programmed for
consideration by the relevant committees and, where necessary, should be debated in the relevant Houses.
It is recommended that the rules
be amended to facilitate the referral of matters arising from reports of
international bodies to which Parliament is affiliated to committees for consideration, where
necessary, and for debate in the relevant Houses.
It is recommended that sectoral parliaments such as
the Women's Parliament, Youth Parliament, People's Assembly and other such assemblies should be formally recognised in the rules and
that provision be made for their procedures, powers and functions and for the formalisation of
recommendations to be submitted to the relevant committees, where necessary, and
to the relevant Houses for consideration.
Parliament currently attends to special petitions through the Committee
on Private Members
Legislataive Proposals and Special Petitions. However general petitions,
representations and submissions as specified in sections 56 and 69 of the Constitution are
not adequately addressed through institutionalised mechanisms.
Sections 56
and 69 require Parliament or its committees to accept petitions, representations or submissions from any interested
persons or institutions.
It is therefore recommended that mechanisms
be put in place to facilitate the processing, referral and guidance on
attending to petitions, representations and submissions. Best practices
have already been established in various provinces, including the establishment
of petitions offices and in some instances budget committees to assist those offices. The
effectiveness of these offices can be investigated by Parliament in the process of
developing mechanisms.
It is proposed that rules be amended and developed to accommodate Sub-Plenary Sessions of the
National Assembly which will
purport to provide an extended avenue for
the debate and consideration of issues referred to it by the House which are of national concern. It is further
proposed that resolutions reached and issues
arising from these sessions be tabled in the House for final consideration. It is recommended that consideration be afforded to
the development of mediums for deliberation, engagement and debates on broader
and complex issues in traditional South
African channels which include Lekgotleng,
Inkundleni and Bosberaad. This will lead to a
move away from the
4.1.2 Joint Parliamentary Oversight and
Government Assurance Committee
In identifying mechanisms for Parliament to effect its oversight role, a
gap was identified which necessitated that
consideration be given to the establishment
of a Joint Parliamentary Oversight and
Government Assurance Committee. The
committee should have some powers governing the work and function of committees
of Parliament.
Its main purpose and mandate will be to consider and deal with broader, transversal and cross-cutting issues. It will furthermore pursue all assurances,
undertakings and commitments given by Ministers on the floor of the House(s) and the
extent to which these assurances etc have been fulfilled.
The
Inter-Parliamentary Union presented a study which was a compendium of parliamentary practice as it applies to
oversight. lt elaborated on a broad range of tools
that parliaments have at their disposal or may want to develop. It acknowledged
that parliaments can establish a general oversight committee which co-ordinates
the oversight work of other permanent
committees. An oversight committee can recommend
that other permanent committees investigate specific problems that it has identified. Other permanent committees can also
bring matters before the general oversight
committee.
It is recommended that the rules
be developed to accommodate and furthermore express the
functions, powers and objectives of the proposed committee. The recommended committee
will be one of the subcommittees of the Joint Rules Committee chaired
jointly by designated House Chairpersons and its membership will be based on
the issues before it within the cluster or multi-cluster group of portfolio and select
committees, and therefore it will have a rotational membership. Secretarial
support will be provided by the Oversight Advisory Section and the Table staff of both
Houses.
4.1.3 Treaties, Conventions and Protocols - Compliance including oversight on development aid
An international agreement binds the Republic only after it has been
approved by resolution in both Houses, unless it is an agreement of a technical, administrative
or executive nature, or
an agreement which does not require either ratification or accession, in which case the agreement
must be tabled in the Houses within a reasonable
time.
The recommendation is that Parliament
ought to be robust and proactive in the negotiations that are
conducted relating to international agreements prior to the signing of these agreements, as
well as in relation to oversight on allocations
per programme and expenditure from overseas development aid (ODA) extended
to the Republic. A
mechanism needs to be established to ensure that Parliament engages with the
stakeholders involved in the negotiation teams.
It
is further recommended that there ought
to be a mechanism to oversee compliance with
international agreements and that this matter should form part of the programme of Parliament for
effecting oversight and accountability. Rule 306 of the NA Rules
stipulates when the Assembly's approval is sought for an international
agreement in terms of section 231(2) of the Constitution, the agreement must be submitted to the Speaker with an
explanatory memorandum. The NCOP rules do
not stipulate that the agreement should be submitted to the NCOP with an explanatory memorandum in the instance where
matters of provincial interests are
addressed in the agreement.
It is
recommended that when a matter of provincial interest is addressed in the
agreement, the NCOP should be provided with
the agreement and an explanatory memorandum and further that the rules of the NA and the NCOP be
developed to enable the presentation of reports to Parliament by the Executive prior to their presentation to international
bodies to enable Parliament to assess the compliance aspects in the reports.
4.1.4 Oversight Advisory Section
In developing the oversight model, the need was identified for support
services relating to the monitoring and tracking of issues between Parliament and the Executive,
and on all other related matters within Parliament's broader mandate. An Oversight and
Advisory Section ought to be created
in response to the need identified. Its main functions will be to provide advice, technical support, co-ordination, and tracking and monitoring mechanisms
on issues arising from oversight and accountability
activities of members of Parliament and the committees to which they belong.
The work of this section should also include
the archiving of relevant information to facilitate the retention of
institutional memory.
The foreseen
objectives of the Oversight Advisory Section encompass the following:
Providing information and advisory
support to parliamentary oversight activities as an information management
section;
Tracking and monitoring Executive
compliance in respect of issues,
that individual MPs raised flowing from constituency work;
Assisting with tracking, monitoring and following up issues raised
through the Parliamentary Democracy
Offices;
Ensuring a more co-ordinated, integrated and holistic approach to parliamentary
oversight;
Assisting with co-ordinating all oversight-related information gathered through
Parliament's public participation activities;
Analysing substantive reports by
institutions supporting constitutional democracy to advise the Houses on
issues for referral
to committees for consideration and report;
Assisting with monitoring and tracking Executive compliance with House resolutions;
Assisting with monitoring and
tracking of government assurances and commitments that emanate from the
floor of the Houses; and
Monitoring and analysing debates, discussions
and comments made
by the public and
participants in the sectoral parliaments with a view to advising the Houses on issues for
consideration.
In the establishment
of the Oversight and Advisory Section, the following subdivisions can be
created:
Financial Scrutiny Unit, which will develop systems for the scrutiny of
finances, for instance:
the
planning cycle which
will include aspects
on performance and expenditure
targets for departments and spending reviews;
the budget cycle which will include aspects of
how government makes its assessment on the state of the economy and how it
plans to raise revenue the following year;
the estimates cycle which is the process by
which departments' resources and cash for the year is approved; and
the reporting cycle which involves the reporting
by departments through reports.
This
will assist the committees responsible for Finance and the portfolio committees
to enhance their oversight activities and tracking of issues that are addressed in
monthly reports to Parliament and those that would have been raised by the Committee on
Public Accounts.
Tracking and Monitoring Unit, which will address
decisions in the House(s) and at committee level, as well as issues from emanating from the floor of
the House(s) and from committee reports that get tabled in the House(s).
Advisory Unit, which will
identify issues from sectoral parliaments, other
assemblies, international bodies and compliance with international protocols, treaties and conventions as well as petitions.
It is therefore recommended that Parliament
must speedily establish this section with full resources, capacity and personnel for the efficient fulfilment of the objectives of oversight and
accountability.
4.1.5 Reserve Bank
The South African Reserve Bank Act (No 90 of 1989) regulates the South
African Reserve Bank. Section 37 of the Act requires the Minister of Finance in
the case of non-compliance
by the Bank with the Act or any regulation under the Act to give notice to the
board of directors of the Bank of non-compliance and the requirement of
compliance within a specified time. In the event that the non-compliance is sustained, the
Minister can apply to a division of the High Court to compel compliance. Whilst section 224 (2)
of the Constitution stipulates that the Reserve Bank is independent, as an
organ of state, it is accountable to Parliament in terms of sections 55 and 69. The exercise of its
powers and functions and conditions attached to it must be determined by an Act of Parliament in accordance with section
225. In this regard, it is recommended that the Reserve Bank Act of 1989
should be reviewed and revised for purposes
of aligning the act with the Constitution in order that Parliament may exercise oversight over it
4.1.6 Issues from constituency work
In the course of their constituency debates, issues of concern to the
public are brought to the attention of members of Parliament. These issues, once introduced in
Parliament, can be formally channelled through the parliamentary processes for executive responses.
4.1.7 Appointments to institutions
supporting constitutional democracy and other specialised
institutions which fall under the mandate of Parliament
The procedural aspects of appointments to Chapter 9 institutions and
specialised institutions are assigned to committees. After considering the matter, the committees
report their recommendations to Parliament for a decision. The weakness is the lack of co-ordination in handling these very important appointments, and therefore
mechanisms in the rules are needed to assist Parliament to give
effect to this important mandate.
It
is recommended that an ad hoc committee
be set up to receive and hear the presentation on the Audit of
Statutes and make recommendations that it deems necessary to the presiding officers for consideration.
4.1.8 Public participation
The need to have public participation is required in section 42 of the
Constitution. The task team considered the matter of how the public can engage through
involvement and participation in parliamentary processes. Amidst the research conducted
by the task team and the recent Constitutional Court cases on public participation, the
task team identified that the need for
public participation and involvement cannot merely be addressed in a chapter of the model but ought to be included in a separate model on
public participation, which will be interlinked with the Oversight and Accountability Model.
Research, ideas and best practice will be provided to the necessary process that will be
established for the development of the model.
4.1.9 Sanctioning non-compliance by the Executive
It
is recommended that Parliament develop
rules to assist it further in sanctioning Cabinet members for
non-compliance after all established existing avenues and protocols have been exhausted, for example naming the Cabinet member by the Speaker
of the National Assembly or the Chairperson of the Council based on a full
explanation.
4.2 Maximising current
mechanisms
4.2.1 Reporting by committees to the Houses
A
mechanism for evaluating annual reports from government departments does exist.
This is one of the
procedures through which Ministers are held to account. Ministers, as the
executive authority
in terms of section 65 of the Public Finance Management Act (PFMA) have to
table annual reports of departments and public entities for which they are responsible within six months
after the end of the financial year (30
September). The Speaker immediately refers all annual reports to the relevant portfolio committee and the
Committee on Public Accounts for consideration and report. Late submission requires a written
explanation by the Minister providing reasons for the delay. The Committee on
Public Accounts reviews the audited financial statements and the audit reports
of the Auditor-General and indicates to the relevant portfolio committee which
specific issues they should be aware
of with regard to oversight. The committee has to evaluate thoroughly the
technical quality and the performance information presented in the annual
report.
Members
should have a clear understanding of the portfolio over which they are
conducting oversight and what it is they want to achieve (improve service delivery). There
are different phases which lead up to the final reporting, namely:
Oversight
preparation phase:
This
starts six to eight weeks prior to 30 September each year. Members need to have access to and
interrogate documents which include current and previous annual reports for
comparison purposes, strategic
plans and Estimates of National Expenditure of related years, State-of-the-Nation Address, Budget Speech, budget vote
speeches, division of revenue information and
related policy documents,
quarterly performance reports, previous oversight reports and House resolutions.
Oversight hearing phase:
Ideally
during the last two weeks of October each year, public hearings are conducted
to gain clarity/input into the areas that should be addressed in the annual
report.
Oversight report-writing phase:
A
report for each of the entities reviewed must be tabled in the House (by the
second week in November). The report should contain comments with regard to
compliance, spending patterns, a general information section in the annual
report, reported performance, key issues of the previous year and
recommendations.
It is recommended that a system
for tracking resolutions until the matter has been dealt with or an adequate
response has been received must be instituted.
A need to strengthen Parliament's mechanisms for evaluating annual
reports was identified
as it is a critical mechanism through which Ministers are held to account and
is dealt with
in 3.1.1 above. However there is a need
to improve on mechanisms that would ensure that there is
reporting on responses by the Executive on resolutions adopted by Parliament.
It is recommended
that the current system be improved in the following manner:
Where a response is required, the House resolution with its date of
adoption must be
appended to the Order Paper until such response has been received. The Minister's formal
response must be addressed to the Speaker or Chairperson of the Council.
If no response is received within a reasonable time or within the period
specified by
the House resolution, the
House Chairperson should notifiy the Speaker or Chairperson, who should then write to the
Minister requesting compliance within 14 days or a written explanation of the delay.
In the event of sustained non-compliance by the Minister, a written
complaint by the Speaker or Chairperson may be sent to the Leader of Government
Business, and
in exceptional circumstances the Minister may be called to account in the House (e.g. during
question time).
Quarterly
reports and an annual report on resolutions (by category) and compliance with outcomes should be made available
to the Houses. These reports could be used to feed information into the
tracking and monitoring mechanism.
This process does not preclude the committee from monitoring executive
compliance as part of its continuous oversight function.
4.2.2 Debates initiated by Presiding Officers
NCOP
Rule 84 and NA Rule 103 respectively enable members to request the Chairperson of the
Council and the Speaker in writing to allow a matter of public importance to be
discussed in the individual Houses. It is recommended that the rules must be expanded to enable the Speaker
and the Chairperson of the NCOP to initiate debates in
the Houses.
4.2.3 Developing specialisation for certain
parliamentary committees
The committee system in
The
Inter-Parliamentary Union is of the view that the existence of specialised
committees adds value to
parliamentary work because these committees can work simultaneously to address problems from different angles.
Parliament should consider strongly resourcing, capacitating and
developing the specialisation of committees that are dealing with broad issues
that cut across departments and ministries in all spheres as this has an impact
on society and the nurturing of our
democratic objectives. This consideration is motivated by the type, quantity and
duration of work, complexity of issues and the need for the development of specialisation as is the
case in other parliaments in the world.
The programming of Parliament should prioritise reports for tabling
which arise from the work done and conducted by these committees on all areas of their focus
for consideration and decision-making within the ambit of enhancing oversight. These
committees ought to be given the
right to consider and initiate debate on some of the issues they find to be of national consideration, as identified in the
process of their oversight work. Furthermore, these committees must provide annual reports which must be published in
the Announcements, Tablings and Committee Reports document as well as
tabled in Parliament to allow other
committees to identify issues that will help them in enhancing oversight and
effecting accountability.
It is highly recommended that
Parliament prioritise the development of criteria to identify on an ongoing basis which
committees qualify for strengthened resourcing,
capacity and development based on the broadness of their mandates.
4.2.4 Appointment of ad hoc committees
The current system
in Parliament of appointing ad hoc committees to investigate a matter of public interest is
effective. However, we need to ensure that issues of public interest, as they arise and are made
known to Parliament, are investigated through the appointment of ad hoc
committees. This
will enhance Parliaments role on oversight and ensure compliance with the
Constitution where we are becoming responsive to the needs of the people as
outlined in the vision and mission statement of Parliament. In addition,
Parliament ought,
when it deems it necessary, to be proactive in appointing ad hoc committees to
address issues of public interest.
4.2.5 Accountability and oversight in relation to the
Executive
NA Rule 117 and NCOP Rule 249 provide for the Executive to reply to a question
for written reply
within 10 working days of the day for which the question was set down for
written reply. Should the Executive fail to do so, the question may, upon
request of the member of Parliament in whose name the question stands, be put to the
Cabinet member in the House for oral reply on the relevant question
day. NA Rule 115(3) provides that a question for oral reply may not stand over
more than once.
This is generally assumed to be a period of 14 days. It is still a moot point as
to what happens to a question standing over more than once as there are such
instances, and no sanctions in this regard exist.
There is a constitutional obligation on the Executive to account to
Parliament (section 92(2) and (3) of the Constitution). In March 2003, the NA
Rules Committee decided that the Speaker should write to Cabinet members and the
Leader of Government Business with regard to members of the Cabinet not complying with their
constitutional obligations as there is no compulsion on a member of the Cabinet
to respond to a question other than the option of members' statements, motions
or a request for a debate on errant members of the Cabinet.
It is recommended that NA Rule 117 and NCOP
Rule 249, which provide a timeframe for the Executive to respond
to a question for oral reply, be amended to extend the timeframe for a response
to 21 days.
Notwithstanding the right of Parliament to pass a motion of no
confidence in the President or in the Cabinet excluding the President (Section 102 of
Constitution) and the existing mechanisms for holding the Executive to account,
it is recommended that Parliament utilise the Joint Parliamentary Oversight and
Government Assurance Committee to implement effective measures to ensure
compliance by the Executive in the event that all existing avenues of eliciting
a response from the Executive have been exhausted.
4.2.6 Individual member oversight
Amidst
the multifaceted and multidimensional work of members of Parliament lies the
role of members to effect
individual oversight. This role is currently performed through questions,
members statements, motions
without notice, notices of motion, motions on the Order Paper, debates in the
Houses, member-initiated debates, constituency work, interventions made by members, private members legislative
proposals and the processing of bills.
Political parties have constituency
offices from which the public can obtain information on new Bills or discuss
issues of concern with members of Parliament. Each party represented in
Parliament is allocated funds to develop its own method of constituent outreach. Each member
of Parliament is assigned by their political party to perform constituency work.
Notwithstanding this, members are not precluded from performing work in other constituencies.
Constituency work affords members the greatest opportunity to conduct
individual oversight. It constitutes the closest level of interaction between
members and the public, and provides the best platform from which members can familiarise
themselves with the issues confronting their constituents. Through this
interaction, a member may address matters of local, provincial and national
concern. However, it is important that, in exercising their oversight role,
members take care not to encroach on the jurisdiction of provincial and local political
representatives but rather adhere to the principles of co-operative government.
Interventions made by individual members is one of the more
effective forms of individual oversight as it empowers members to interact
directly with departments and other organs of state at national, provincial and local government level. Members have a
duty to alert Parliament to any issue of
concern identified during such oversight interventions.
In
practice, departments establish structures to process concerns raised by
members of Parliament, such as departmental parliamentary liaison officers.
These liaison officers are accountable to the Director: Ministerial Services
within each department. Their key function is to facilitate communication between the
ministry, the department and members of Parliament. Concerns raised by members are referred to
senior officials within departments, with the veiled
threat that should the department not respond in a satisfactory manner, the
matter will be brought to the House formally at the risk of great embarrassment
to the department, and ultimately the Minister. If the member's informal
communication with a department does not yield satisfactory results, he
or she has discretion to communicate formally with the relevant Minister to provide him or her with the
opportunity to rectify the matter before placing it formally before the House. The observance of this
protocol allows for the services not to be disrupted. It is recommended
that in the interests of ensuring greater communication on issues arising from
members individual oversight work ministries develop guidelines for members
interaction and engagement with Ministers on issues of public concern.
4.3 General recommendations
Parliament
should strengthen and develop its current rules to accommodate new and old mechanisms as proposed in this model in
order to enhance its oversight role.
In the event that the new mechanisms above are agreed to, the rules need
to be realigned to accommodate the new mechanisms.
It is recommended that the Joint Rules be amended to refer to
"Persons with Disabilities" instead of "Disabled Persons".
CHAPTER 5: PROCEDURE FOR AMENDING MONEY BILLS
5.1 Terms of reference of
Budget Focus Group
The Budget Focus Group was mandated to develop procedure for amending money bills and to draft legislation to
amend money bills. These mandates have been
completed.
The classification
criteria guiding the above terms focused on the following:
The role of Parliament in
amending money bills. This is against the backdrop in which the
introduction of money bills is the sole responsibility of the Minister of
Finance. The Executive plays a major role in the budgetary process, but the
point of concern is that
in terms of section 77(3) of the Constitution, an Act of Parliament must
provide for a procedure
to amend money bills before Parliament. The mandate from the Joint Rules
Committee to the Budget Processes Focus Group was to develop a draft bill
providing for
a procedure to amend money bills.
The findings of the
focus group took cognisance of -
presentations by National Treasury;
reports of Ms A Folscher; and
an analysis of the budget cycle.
5.2 Recommendations
The bill in draft
format, as submitted, must be tabled in Parliament and referred to the appropriate committee
and must follow the normal parliamentary process.
CHAPTER 6: CO-ORDINATION AMONGST
THE SPHERES OF GOVERNMENT ON
OVERSIGHT
6.1 Co-operative government
The three spheres of
government must conduct their oversight and legislative work with due regard to Chapter 3
of the Constitution, the Intergovernmental Relations Framework (IGRF) and other
relevant legislation to achieve the objectives of co-operative government and the
separation of powers.
The NA, NCOP, provincial legislatures and municipal councils each
conduct their functions with reference to co-operative government as required in the
Constitution and the Intergovernmental Relations Framework Act (No 13 of 2005). There are
however frequent misunderstandings in relation to the parameters of oversight conducted
by the NA, NCOP, provincial legislatures and municipal councils due to the unco-ordinated way in
which all these bodies carry out their functions. This chapter provides clarity on the
role of each of these functional
bodies found in the Constitution and legislation. Much debate is still required on mechanisms/protocols to facilitate
greater co-operation and co-ordination between
the three spheres of government.
The Constitution
requires co-operative government between the three spheres of government. In this
regard, the parliamentary oversight process, as it relates to interactions with
the people and the government, must seek to adhere to the values of
co-operative government.
National, provincial and local spheres of government must seek to
promote the objectives of the Intergovernmental Relations Framework Act, which
include coherent government, the effective provision of services, monitoring the
implementation of policy and legislation and the realisation of national priorities. They must
therefore take into account the circumstances, material interests and budgets of other
governments and organs of state in other governments when exercising their statutory powers or performing
their statutory functions. In addition,
there must be consultations with other organs of state in accordance with formal procedures emanating from applicable
legislation and accepted conventions as agreed with organs of state or alternatively consulting in the most
suitable manner. Actions must also be co-ordinated when implementing policy or
legislation affecting the material interests of other spheres of government.
6.2 Values and principles guiding
institutional oversight
This model's
primary objective is to provide a framework that describes how Parliament conducts oversight. It seeks to improve existing
tools of parliamentary oversight, streamline components of the new oversight model with existing components and
enhance Parliament's capacity to
fulfil its oversight function in line with Parliament's new strategic
direction.
An oversight model
must therefore consist of three elements as indicated in Figure 3 below:
The values and principles by which Parliament conducts oversight;
The mechanism or framework to conduct oversight; and
The processes and resources required for conducting oversight.
Constitutionally, the NA and the NCOP have the prerogative to design
their own internal arrangements, proceedings and procedures in terms of sections 57 and 70
of the Constitution. To this
end, the Constitution explicitly states that in making rules and orders
concerning its business both Houses are compelled to take into account
representative and participatory democracy, accountability, transparency and
public involvement. In addition to these values, section 195(1) also stipulates
basic values and principles governing public administration in every sphere of government. Added to
the abovementioned values are a high standard of professional ethics, the efficient,
economic and effective use of resources, development-orientatedness, impartiality, fairness, equity,
and responsiveness. These values are captured and summarised in Parliaments strategy that was
adopted by both Houses in March 2005, as follows:
Constitutionality: Democratic values (of human dignity, equality &
freedom), social justice and fundamental human rights;
People-centredness: Respect, integrity and service delivery;
Co-operative government: Co-operating with other spheres of government;
and
Good governance: Accountability and transparency, value for money,
customer focus and service quality.
6.3 Introducing
the parliamentary oversight cycle as a guide for oversight processes
Parliamentary
processes to ensure that institutional mechanisms are effectively undertaken
are prescribed within the parliamentary oversight cycle. The parliamentary
oversight cycle takes into cognisance the Medium-Term Expenditure Framework cycle of the
Executive, the Medium-Term Budget Policy Statement, the Division of Revenue Act, the
annual Appropriation Bill
and legislation raising revenue.
Annual reports, reports from the Auditor-General,
resolutions of the Committee on Public Accounts, committee reports, quarterly and
monthly reports of National Treasury are considered amidst the cycle and performance by the
Executive is measured by a comparison between these and the Medium -erm Budget Policy
Statement, the Division of Revenue Act, the Appropriation Bill, and legislation raising revenue. Ministers are
accountable for the policy that underlies
their budgets whereas accounting officers account for expending the budget.
Figure 2 below
illustrates the oversight cycle on an annual basis:
The oversight cycle requires Parliament to take a long-term view of oversight
in order to ensure effective oversight of sustainable delivery. The
parliamentary oversight cycle provides a means through which Parliament can
monitor government delivery in terms of long-term commitments, rather than
focusing exclusively on annual commitments, annual planning and performance
assessments. The cycle thus provides for continuity in Parliament's oversight
activities from year to year.
Figure
3
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