Panel for Assessment of Parliament: public hearings

Meeting report

Aids Law Project (ALP) and Treatment Action Campaign (TAC) Public submission
Mr Mark Heywood, Executive-Director, Aids Law Project, addressed the Panel. It was the opinion of both Treatment Action Campaign (TAC) as well as the ALP that democracy was working; however, there were significant shortcomings identified in Parliament over the past eight years.

Between 1995 and 1999, the ALP had a very functional relationship with Parliament. However, since 1999, the ALP had had a more fragile relationship with Parliament. As Health activists they considered the health situation in South Africa to be a challenging situation. Health was an area where the ALP felt that the Executive fell short and where Parliament failed to play its role in mediating between the Executive and organisations.

According to the Constitution, Parliament was the first entity in line in a series of checks and balances. When checks and balances failed, it meant that civil society had to seek other means to fight to ensure that the Government behaved constitutionally. In the ALP’s case, if Parliament failed, it meant that they must approach another level of power. For example, early in 2000, the ALP made recommendations and written submissions to Parliament about mother-to-child transmissions. However Parliament’s failure to adopt the recommendations made by Chairperson Govender forced the ALP to go to the Constitutional Court. If Parliament had played a more active role, a lengthy and difficult process through the Constitutional Court would have been averted. More recently, the ALP lobbied the Portfolio Committee on Correctional Services on questions on the inadequacies and failings of the Anti Retroviral (ARV) Treatment Programme.

It was the ALP’s opinion that they were witnessing a vicious cycle that they believed to be undermining crucial aspects of the democracy and of the separation of powers. In the realm of Health, a number of Bills were submitted to Parliament from the Executive that appeared to weaken the mandate and independence of key statutory councils and institutions, such as South African Nursing Council, the Medicines Control Council and the Health Professionals Council of South Africa. The ALP drafted written submissions to the Parliamentary Portfolio Committee on Health, which pointed out that weakening the independence of those bodies was potentially unlawful and it weakened the capacity to supervise and oversee key aspects of the system of health governance in our society. The recommendations seemed to have been ignored, despite the fact that both written and oral submissions were made. The consequence would be that the bodies mentioned could no longer play the oversight and regulatory roles expected of them by the Legislation. They would not be able to provide accurate information to Parliament, which that in turn required in order to perform its responsibilities.

On the issue of the budget, the ALP often felt that the Legislation that was passed through Parliament was passed without the consideration of the cost implications. This meant that the legislation would face problems of implementation. For example, when the National Health Act was passed in Parliament, there was no evidence that the budgetary implications of the implementation process were considered. As a consequence, there were no resources to support the implementation of the Act.

Often, after Legislation was passed, there were very lengthy delays between the proclamation of the Legislation and the actual implementation of it. Again, the National Health Act was an example. There were key chapters of the Act that were not put into effect yet, such as the oversight institutions that the Act created.

In conclusion, the ALP respected Parliament and the critical role that it was assigned by the Constitution but they would ensure that Parliament carried out its responsibilities.

There was a concern about the oversight of Parliament and proper administration. There was a great concern surrounding a lack of public participation in policy submissions. Interaction between the Health Portfolio Committee, TAC and the ALP had been difficult.

A proposal for an All Party Committee request was submitted to the Panel. This party would perform oversight and would deal with legal issues; it would serve as a monitoring mechanism on an annual basis.

Discussion
Mr John-Kane Berman asked Mr Heywood for details on the main ways in which the South African Nursing Council, the Medicines Control Council and the Health Professionals Council of South Africa were weakened.

Mr Jonathon Berger, Head of Research, ALP, told the Panel that the ALP had engaged in making submissions over a range of pieces of legislation, particularly the amendment of the Health Professions Act and the new Nursing Council Act.

The Medicines Control Council this was the first example of where the independence of the mandate was compromised. In particular, amendments were made to the composition of the Control Council. The composition was set out in the legislation, but was later removed and left entirely to be determined in the regulations. There was nothing in the Act that gave any guidance as to how the Council was determined and there was no open procedure where candidates of the council were to be selected publicly.

In respect of the Health Professions Act, the key way in which the body was undermined occurred prior to the amendment. Each professional body (psychologists, doctors and others) was formerly allowed to elect its representative to the Council. This process of election was done away with and replaced with direct ministerial appointments on the basis of nomination.

With the South African Nursing Council, the ALP had issues with the Act and the manner in which the Nursing Council was elected. Regulations that came into effect in January 2008, in the ALP’s view,  went beyond what the Act permitted. For example, the Act stated that three members of the Nursing Council had to be representatives of the community. The Act allowed all interested parties to make nominations and the Minister had the power to appoint three representatives of the community. The new regulations disregarded what was written in the Act and allowed each of the nine MEC’s for Health to nominate one person. Of those nine nominations, three were appointed by the Minister to act on behalf of the community. Community representation was now being decided directly by MEC’s and the Minister.

The Nursing Council regulations tied in to ongoing oversight on the legislation process as well as the regulation drafting process. The ALP analysed the final Regulations and saw that they did not depart from the Draft Regulations that were published previously. This indicated that the ALP submissions were not noted at all and their concerns were not considered.

Mr Aubrey Matshiqi noted that the ALP was saying that Parliament was under performing with regard to its oversight functions. The request for an all-party joint committee based on the view that Parliament was under performing on oversight functions was acknowledged. He wanted to know how this all-party committee would improve on oversight functions and whether ARP thought that it was possible that the joint committee would mirror the weaknesses of the Health Portfolio Committee.

Mr Heywood spoke about the capacity of individual Members of Parliament to pursue certain issues as well as the access that they had to information and reports, particularly in relation to health systems. A joint committee could strengthen oversight and perform a monitoring function.

Mr Matshiqi asked Mr Heywood to clarify if he thought that an all-party committee that focused on AIDS would be more effective.

Mr Heywood explained that the South African National AIDS Council (SANAC) was the highest advisory body to Government in respect to Aids related matters but they could not do more than advise. The point of proposing an all-party committee was so that such advice would be acted upon and given effect. There was a whole ranges of issues that the party would focus on. Mr Matshiqi was concerned that the all-party committee would duplicate the weaknesses of the Health Portfolio Committee.

There was a lack of research capacity in Parliament, as there was no information available regarding Aids, of a scientific nature that could be given to Members of Parliament. One of the issues that Parliament should have supported was the dual/triple therapy for those that were infected with the disease. An all-party committee would be helpful, as there were many unresolved issues to be faced. Due to a lack of information, Parliament was not in the position to support or not support issues.

Mr Selby Baqwa stated that he was neither for nor against the proposition for the all-party committee. Parliament was aware of the deficiencies that were mentioned and the oversight function had become a matter for continuous debate. Mr Baqwa also stated that the number of committees had increased since 1994 and that they faced questions of capacity. He stated, however, that all the parties were all-party committees and suggested that they be strengthened with regard to capacity and efficiency levels instead of increasing the number of current committees.

Mr Papati Malavi stated that the Committee needed concrete proof of the process that followed after submissions were made.

Mr Matshiqi agreed that all the parties were all-party committees and that they needed to find ways to make them more effective. Once problems were tabled, a response should follow. With regard to budgets and legislation, their impacts on society should be noted.

Mr Matshiqi focused on the issue of cost implications.  He wanted to know if Mr Heywood thought it was a simple matter of efficiency. The focus was then turned to Parliament’s deficiencies. Mr Matshiqi asked if Mr Heywood thought that outcomes would be different of there was a different political electoral system.

Mr Baqwa addressed public participation. Even though everybody was equal before the law there were still economic divides to contend with. Public participation was not at the level that it should have been at, as there were practical problem to contend with.

Mr Colin Eglin stated that the problem was finding a way to reconcile the interests of the people with the authorities of the parties represented in Parliament. The TAC was seen as an organisation that promoted the interests of the people, while Parliament consisted of people nominated by political parties who are accountable to them. The leader of the ruling political party also served as the head of the Executive. The dominance of the Executive over Parliament seemed to infringe on the rights of the people.

Mr Berman wanted to know if there were some committees who were more responsive than others.

Mr Heywood addressed the issue of the all-party committee. He agreed that they needed to increase the capacity of all the Portfolio Committees. However, he maintained that an all-party committee was needed that could focus on the issue of AIDS because of the scale of the problem. He suggested that Parliament initiate a partnership between different departments on AIDS. He also maintained that the all-party committee would strengthen oversight as well as the response to issues.

With regard to cost implications, not every piece of legislation would be implemented at high costs. However, it was important to focus on those that were of great importance.

Mr Heywood discussed being viewed as an enemy of the executive. He stated that it was the exception and not the rule, even though the ALP had been treated as enemies. For three years the ALP and TAC tried to engage Parliament in a range of issues that were AIDS related but they were ignored. Government branded them as in line with pharmaceutical companies. This was a deterrent to public participation and hindered improvement.

The ALP and TAC had engaged with many departments and committees and the responses were positive. He suggested that the Executive should be summoned and their ability to deal with issues should be monitored.

The Chairperson concluded that the Panel would discuss the idea of a focused committee.

Legal Resources Centre (LRC) Presentation
Mr Vincent Saldanha, Director, Legal Resources Centre, addressed the Committee together with other LRC directors Steve Kahanowitz and Henk Smith. He informed the Committee that the Legal Resources Centre was also a non governmental organisation (NGO) and that its main focus was representing clients and making sure that they were able to achieve a broad public impact. The LRC’s primary function centred on litigation, while the second function focused on advocacy role that they played for clients, which allowed them to resolve matters efficiently.

Separation of powers allowed the LRC to infringe on Parliament without going to the Constitutional Court when they felt that bad policy decisions were made that would impact negatively on clients.

Mr Saldanha addressed socio-economic issues focusing on the broad right of access to justice. He discussed LRC’s  work with refugees, saying that Department of Home Affairs (DHA) was not able to help them and many were being turned away. The Committee was being informed of this because Parliament had a very important oversight role to play. With regard to socio-economic rights in the Constitution, Section 27 stipulated that rights had to be progressively realised. Resources would have to be put in order for this to happen.

Mr Steve Kahanovitz added that he was not aware of what was the publics’ perception of the situation, as public participation was found to be lacking. There seemed to be limited encouragement of public participation from Parliament. There were also issues around compliance to participate with the public within the different Provinces. Parliament was obliged to represent the people and provide them with information and other research that was available.

Mr Henk Smith addressed submissions made to Parliament and other legal issues. He also discussed the role of Parliament as a democracy according to the Constitution and focused on the concept of separation of powers. The challenge was finding a balance in the relationship between the public and the Government.  He also focused on the importance of public participation.

Discussion
Ms Koko Mashigo noted that presentations made by both the ALP and the LRC focused on the issue of public participation. She stated that it was important that the Portfolio Committees focused on strengthening this area, as it was of great importance especially with regard to policy making.

Mr Malavi stated that the Constitution was clear about public participation and proportional representation. Direct democracy meant direct participaton with the public. Also, there should be an Act in Parliament that determined the procedure when passing a Bill. If parliament went ahead with the Bill contrary to those procedures, then the legislation would automatically be void.

Mr Berman asked a question based on the Doctors for Life case. He wanted to know if there were no guidelines from Parliament for regulation and control as well as ensuring Public Participation.

Mr Smith answered that Section 76 offered participation and the opportunity to debate legislation. However, the effectiveness of the participation was uneven.

Mr Saldanha stated that the people remained largely dependent on civil society to make submissions to Parliament, as often people did not have the resources available to them. There was a debate concerning the assistance to the community. 

Press Gallery Association (PGA) Submission
Mr Mpumelelo Mkhabela, Journalist: Sunday Times and PGA Member, welcomed the opportunity to make a submission on such a fundamental issue. Primarily, he observed that there was a disjuncture between what the Constitution of the Republic expected of Parliament, and how Parliament actually executed its work. He voiced that “what the Constitution envisaged was stronger than what was happening”. Encouragingly, there was a growing chorus within the ruling party to hold the Executive to account, but this was still in the minority and was often undermined by the majority of their colleagues.

Mr Mkhabela noted that questions to Ministers and the President ranged from the most “adversarial” from among opposition parties to the “downright patronising and praise-singing” from the ruling party. Oral questions in both Houses added no value to the debate and were characterised by political point-scoring and the absence of intelligent debate.

Mr Mkhabela revealed that a lot of the robust debate between ANC MPs and the Executive took place outside the Parliamentary systems – in the “Study Groups”. This resulted in the “privatisation of public accountability” and a “downgrading” of the parliamentary Committees. He added that Members of Parliament (MPs) conducted constituency work, but this work was largely owned and supervised by their respective political parties. Parliament as an institution had no mechanism to ensure that MPs performed true work in the constituency rather than party work, despite the fact that constituency work was funded by Parliament.

Lastly, he tabled but did not discuss, the shortcomings of parliament’s administrative and legislative arrangements and its relations with the media.

Discussion
Mr Selby Baqwa queried to what extent the sycophantic and adversarial styles adopted by MPs weakened parliament. He also pointed out that the country had a proportional representation system, which allowed MPs to consider their party’s interests ahead of parliament’s interests.

 Mr Mkhabela acknowledged that he could not give a definitive answer on the styles. He felt that a  constituency based system allowed for greater independence, while the proportional system ensured a greater diversity of voices. He concluded that the challenge was to balance what the party wanted and what the Constitution demanded.

Ms Koko Mashigo sought to determine the role of “study groups”.

Mr Mkhabela admitted that this structure performed a useful role. The groups afforded parties the opportunity to manage and control their approach to different issues. However, these discussions took place in private and prevented the public from observing the apparent robust exchanges.

Mr Aubrey Matshiqi raised two issues. Firstly, he wondered whether the failure of Parliament to hold the Executive to account compromised the efficacy of the institution. Secondly, he accused the media of ineffective coverage of Parliament in general and the NCOP, in particular. Finally, he mentioned that critics of the media believed that they only covered the controversial issues in parliament.

Mr Mkhabela indicated that the new Chief Whip of the ANC had conceded that the image of parliament had suffered over the years. The public perceived the institution as a “rubberstamp” of the Executive. This did not mean that parliament was collapsing, because it continued to run and pass laws. However, the levels of the debate and oversight mechanisms needed to be significantly enhanced. Finally, he dismissed the final point raised by Mr Matshiqi and stated that certain contentious issues could not be downplayed by the media.

Ms Gaye Davis, Journalist: Cape Talk and PGA Member, described the relationship between the media and parliament as one characterised by mistrust. There was a general failure to understand the role of the media and how it could promote the work of parliament. She accepted the charge that the media did not always cover parliament adequately. She reasoned that this was as a result of issues around training and development in the news rooms of media houses. However, Parliament itself proved a hindrance because of the way it organised its programme and because of the refusal of MPs to cooperate with the media. In conclusion, she reiterated that a lot more could be done on the part of the press to educate the public on what parliament did and what it ought to do.

Mr Mkhabela announced that it was difficult for the press to cover the NCOP because Ministers were only members of the NA.

Mr Colin Elgin took exception that the media referred to media briefings by the Executive as parliamentary briefings.

Office of  Secretary to Parliament
Mr Zingile Dingani, Secretary to Parliament, introduced his delegation to the Panel, and noted that the submission was prepared as a detailed response to the questions posed by the Panel.

Mr Joe Phaweni, Manager: Policy and Administration, Office of the Secretary, summarised Parliament’s strategic priorities, resource allocations and average budgets since 1994. He revealed that decision making was effected through the Parliamentary Oversight Authority, which directed the control of services. Moreover, he described how the Rules of the Houses had evolved over time. A large part of the Rules dealt with the passing of legislation as required by the Constitution. In addition, they contained various mechanisms to hold the Executive to account.

Furthermore, Mr Phaweni announced the instruments developed over time to improve the quality of debates in both Houses. He outlined the systems introduced for obtaining provincial mandates. In 2002, the entire rules governing the Question system was revised to accommodate supplementary questions.

In addition, Mr Phaweni explained the functioning of the committee system by expanding on its programme, processing of legislation and oversight work. Each Committee compiled an annual programme, which was approved by the Office of the House of Chairpersons. When processing legislation, Committees facilitated public participation by inviting the views of the public. They also used various tools to perform oversight over the Executive on behalf of the House.

Mr Phaweni discussed the staff support provided to Committees, the changes in the area of overall research and information support since 1994, the impact of the language policy and the establishment of Parliamentary Democracy Offices (PDOs).

Discussion
Mr Malavi argued that the submission did not adequately address whether the Secretariat provided the necessary support to the Committees to perform their constitutional mandates. Furthermore, he criticised parliament for protracting the finalisation of certain Bills, like the Financial Management of Parliament (FMP) Bill and others. These delays were in defiance of the Constitution, which demanded that legislation be processed within a reasonable time. Finally, he accused the Secretariat of painting a rosy picture of how parliament discharged its duties.

Mr Dingani denied that he had attempted to paint a rosy picture of the situation and was only illustrating what services the Secretariat provided. He refused to make a judgment on the performance of MPs and insisted that this was the duty of the electorate. Furthermore, he admitted that the general skills shortage in the country continued to hamper Parliament’s ability to support MPs. He emphasised that despite complaints from MPs, Parliament continued to support them and in fact, increased their allowance on an annual basis. In conclusion, he divulged that the finalisation of the FMP Bill had been stalled due to the dispute between Parliament and the Executive.

Mr Michael Coetzee, Deputy Secretary to Parliament, repeated Mr Zungile’s assertion that the delay in the finalisation of the FMP Bill was as a result of political differences.

Ms Mashigo examined two issues. Firstly, she questioned how MPs with visual impairments were assisted. Secondly, she asked whether it was necessary to establish PDOs instead of strengthening the existing constituency offices.

Mr Sisulu was adamant that Parliament should make sure that the constituency offices functioned properly before creating new structures, especially if nobody seemed to know how they operated.

Mr Dingani reported that facilities for MPs with visual disabilities were mainly funded by individual parties. In addition, he explained that PDOs were different from constituency offices. Parliament intended to have a presence in communities that could not be perceived through party political influence. In line with this thinking, it was expected that PDOs would promote the standing, image, projects and programme of parliament. Lastly, he motivated that this was necessary because people conflated parliament with the Executive.

Mr Coetzee cited the difference between constituency offices and PDOs. The former were a party political organ whereas the latter were an instrument of parliament.

Mr Baqwa commended the Secretariat for a comprehensive submission. He noted that there had been a progressive movement in terms of addressing all the priorities. He maintained that support should be “beefed up” in all areas, such as IT, and researchers..

Mr Max Sisulu described the Office of the Secretary as the engine of parliament. In addition, he noted, from the presentation, that the budget for parliament had increased every term. However, the presentation failed to show the percentage increases of the budget allocations and whether there was real increase.

Mr Zungile confirmed that the detailed submission contained this information.

Mr Sisulu probed two issues. Firstly, he wondered about the implication of the Matatiele judgement on parliament. Secondly, he examined the issue of under-spending by parliament.

Mr Dingani proclaimed that the issue of under-spending was being dealt with. He announced that through the implementation of various interventions, parliament had managed to reduce this under-spending to 3% in the previous financial year.

Advocate Lulo Matyolo-Dube, Parliamentary Legal Advisor, divulged that parliament was waiting for a legal definition of the term “public participation” in relation to the Matatiele ruling.  This definition would then serve as a measure for how parliament should deal with such an exercise.

Mr Kane-Berman scrutinised two issues. Firstly, he asked whether parliament had its own independent legal advisors and if so, how many of them. Secondly, he queried about the availability of Hansard.

Ms Keswa, Division Manager: Legislation and Oversight, Secretariat, conceded that there were backlogs regarding the availability of the Hansard service. Parliament was often encumbered by capacity constraints and quality assurance difficulties.

In response to the former question, Advocate Matyolo-Dube stated that parliament had eight legal advisors.

Mr Eglin sought to determine who tracked the resolutions made by parliament.

Ms Keswa recognised that there was a weakness in the tracking of such resolutions. However, she declared that there were mechanisms put in the revised oversight model to address this.

Mr Matshiqi commented that the Office of the Secretary was supposed to provide support to the “deployees of the people”. Furthermore, he asked about the Secretariat’s financial management, its reporting structure and whether it was happy with its budget allocation.

Mr Coetzee confirmed that Parliament accounted to the Standing Committee on Public Accounts.

Ms Daphline O’ Brien, CFO, Office of the Secretary to Parliament, candidly confessed that they would never be entirely happy with their budget allowance. Furthermore, she confirmed that the Office had received an unqualified audit opinion with no matter of emphasis.

Ms Pregs Govender revealed that it was difficult for ordinary people to get access into parliament and get assistance. She also wondered to what extent the granting of debates in the Houses were influenced by party dynamics.

Mr Dingani agreed with the first point raised by the Chairperson and gave an undertaking that it was being addressed. Due to time constraints, the final question was not tackled by the Secretariat.

Afrobarometer, Centre for Social Science Research, UCT Submission
Professor Robert Mattes, Co-Founder and Senior Advisor: Afrobarometer, profiled the entity’s aims and activities. On a basic level, it was defined as a scientific project dedicated to accurate and precise measurement of nationally representative samples of public opinion in various African countries.

In his presentation, Professor Mattes highlighted and illustrated a comprehensive set of data, concerning the knowledge, expectations and attitudes of South Africans and their African counterparts towards their respective parliaments and MPs. The study revealed that the vast majority of South Africans were able to offer a definite view on parliamentary performance, though at significantly lower levels than other Africans. However, they were far less likely than other Africans to know who their MP was.

The speaker also discussed the different electoral systems and the public’s perception of Parliament and MPs.

Discussion
Mr Eglin queried what factors were considered when the entity sampled South Africa.

Professor Mattes clarified that the sample was stratified by province, race and rural/urban considerations.

Mr Baqwa sought to understand why, in terms of the study, South Africans did not know or want to have contact with their MPs.

Professor Mattes argued that the country’s electoral system (proportional representation) was not conducive to active engagement and accountability from the citizenry. 

Mr Kane-Berman enquired which African country had the best combination of the different electoral systems.

Professor Mattes could not provide an answer to this question at this stage.

The meeting was adjourned.