An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
A call for electoral reform
14 September 2010
The report of the Independent Panel of Assessment of Parliament and a letter from Ian Davidson, DA Chief Whip
Politicsweb is publishing below extracts from the report of the Independent Panel of Assessment of Parliament, which was presented to the Speaker of the National Assembly on 13 January 2009. The report makes serious criticism of the working of the democratic political process in South Africa and calls on Parliament to hold a debate on the matter of electoral reform.
No action has been taken on this report.
It represents the most important statement so far from an official body of Parliament on structural blockages in the working of Parliament, leading to doubts as to the “legitimacy of South Africa’s democratic process.”
A central focus of the report is on the lack of accountability of MPs to voters, brought about by the absence of constituency-based electoral system and the top-down effect of the party-list system. The report indicates a connection between corruption in the award of state contracts and lack of accountability of MPs to voters.
A crucial chapter, Chapter 3, headed “Oversight Mandate”, begins with the words of Emeritus President Nelson Mandela in the final sitting of the first democratic Parliament on 26 March 1999, in which he said: “…we need to ask whether we need to re-examine our electoral system, so as to improve the nature of our relationship, as public representatives, with the voters!” (p.35)
A further letter requesting a debate on the report is published below, sent by Ian Davidson, DA Chief Whip, to Max Sisulu, the Speaker of the National Assembly, on 20 July 2009. Max Sisulu had been a member of the Panel that drafted the report.
No debate has been forthcoming, and there appears to have been no further action on the matter by the DA since Ian Davidson’s letter.
Dr Frederick van Zyl Slabbert, who headed a previous major commission on the matter of electoral reform, and who died last May, was a member of the Panel. The remaining ten members are:
Ms. Pregs Govender (Chairperson)
Adv. Selby Baqwa
Mr. Colin Eglin
Ms. Judith February
Mr. John Kane-Berman
Mr. Papati Robert Malavi
Ms. Koko Mashigo
Mr. Aubrey Matshiqi
Prof. Sipho Seepe
Mr. Max Sisulu
Report of the Independent Panel of Assessment of Parliament
It has been argued that the perceived lack of accountability of Members of Parliament to the public, as well as the poor link between the public and Parliament in general, can be ascribed to South Africa’s party-list electoral system. The Panel deliberated at length on the impact of the party-list electoral system on various aspects of Parliament’s work. It was noted that the party-list system tends to promote accountability of Members of Parliament to their political parties rather than to the electorate. The power of political parties to remove their members from Parliament also tends to discourage the expression of individual viewpoints as opposed to party political views. The Panel recognised that alternative electoral systems also have drawbacks. The Panel strongly recommends that Parliament debates the relative merits of various electoral systems and considers the impact of these systems on the institution’s ability to give expression to its Constitutional mandate. The view of the Panel is that the current electoral system should be replaced by a mixed system which attempts to capture the benefits of both the constituency-based and proportional representation electoral systems. (p.8)
Chapter 3. Oversight Mandate
It was argued that South Africa’s current electoral system encourages Members of Parliament to be accountable to their party rather than the electorate. The influence of political parties on the ability of Members of Parliament to freely express themselves is further strengthened by the unconditional power of political parties to remove their members from Parliament. Section 47(3)(c) of the Constitution of the Republic of South Africa specifies that a person loses membership of the National Assembly if that person…”ceases to be a member of the party that nominated that person as a member of the Assembly, unless that member has become a member of another party in accordance with Schedule 6A”. In addition, these factors also have an impact on Parliament’s mandate to serve as a forum for the discussion of issues of national importance. In a speech delivered at a 2002 Freedom of Information Conference former Speaker of the National Assembly Dr. Frene Ginwala said that this “resignation provision” could be viewed as restricting member rights to free speech in that they may feel obliged to “toe the party line”. (p.37)
While all Members of Parliament have a common obligation to hold the Executive accountable, the party list electoral system undeniably does have an influence on the manner in which oversight is exercised. The use of party lists to fill seats in the legislature means that Members of Parliament of the majority party are often in a position where they must exercise oversight over senior members of their own party, the same members who may be able to influence the composition of the list during the following elections. There is thus an incentive toward avoiding confrontation and open criticism of senior members of the Executive. Opposition parties, in their turn, have an incentive to be stridently critical of government and are at times accused of political ‘point scoring’ at the expense of meaningful and constructive engagement with issues.
The Panel recommends that the impact of the party list system as it is currently structured in South Africa, as well as alternative systems, should be given consideration by Parliament. The view of the Panel is that the current electoral system should be replaced by a mixed system which attempts to capture the benefits of both the constituency-based and proportional representation electoral systems. (p.37)
3.6 The Role of the Committee on Public Accounts (COPA)
The investigation by the Committee on Public Accounts into the government’s arms purchases has been highly controversial. There was a strong public perception that Parliament’s role was seriously undermined by the Executive and that Parliament’s
leadership did not defend COPA as it tried to carry out its constitutional mandate. Allegations relate to interventions from the ANC in an attempt to block the investigations, including the removal of one of the ANC COPA members at the time, Andrew Feinstein. The ongoing controversy ultimately led to the resignation of the committee chairperson, IFP member Gavin Woods. During a Parliamentary media conference following his resignation, Gavin Woods claimed that the Executive had inordinately influenced ANC members of the committee and interfered in the committee’s oversight role, particularly in the arms deal investigation, thereby hampering Parliament’s role of holding the Executive accountable to the people’s public representatives. It has been alleged that Executive interference in COPA’s investigations into the arms deal was a turning point for the legitimacy of South Africa’s democratic process.
The Panel draws attention to the fact that the controversies surrounding this issue have done great damage to Parliament’s image in the eyes of the public. The Panel wishes to affirm that Parliament has a central role to play in combating corruption within all organs of state, and the Panel therefore recommends that Parliament should consider the lessons that emerged through the arms deal investigation process.
Parliament must continue to exercise its oversight role with regard to the arms deal, relating specifically to current issues such as the implementation and impact of offset commitments. Moreover, the arms deal should not be considered only as an issue of alleged corruption, but should also raise questions regarding Parliament’s role in reflecting the priorities of the institution as well as those of South African citizens in general. Beyond the question of the processes involved in the arms deal itself there lies a deeper question about national priorities and Parliament’s role in reflecting and expressing these priorities in legislation.
The Panel recommends that Parliament should revisit the arms deal and take such steps as are necessary, including a debate on the adoption of a resolution calling for the appointment of such a judicial commission of enquiry into the arms deal. (pp.40-41)
DA writes to Speaker, urges debate on Parliament Report
Ian Davidson, Chief Whip of the Democratic Alliance
21 July 2009
I have written to the Speaker of the National Assembly, Mr Max Sisulu, requesting him to call for an urgent debate of public importance on the report of the Independent Panel Assessment of Parliament, within the first two weeks of the upcoming plenary session of the second parliamentary term. Mr Sisulu was one of eleven people to serve on the Panel.
The report was handed to the Speaker and Chairperson of the third Parliament on 13 January 2009. As of today, it has been some two months since the first sitting of the fourth Parliament, and the report has not yet been debated. Among other things, it contains very important recommendations on how Parliament can strengthen its legislative and oversight role.
The DA believes Mr Sisulu is in the prefect position – as a member of the panel and now as Speaker – to action them. Not to do so would suggest that the assessment and report was nothing more than an empty exercise, designed to appease the ANC’s detractors, rather than a purpose-driven attempt to improve best democratic practice at the heart of South Africa’s constitutional order.
The correspondence follows below:
20 July 2009
HON MR MV SISULU MP
Speaker: National Assembly
Parliament of South Africa
Dear Mr Speaker,
REQUEST FOR A DEBATE: REPORT OF THE INDEPENDENT PANEL ASSESSMENT OF PARLIAMENT
I am writing to request you to grant a debate of public importance within the first two weeks of the upcoming plenary session of the second parliamentary term, regarding the Report of the Independent Panel Assessment of Parliament that was received by Parliament on 13 January 2009 and that was referred by the previous Speaker Gwen Mahlangu-Nkabinde to the fourth democratically elected Parliament as high priority.
Being one of the members of this Independent Panel, you are well aware of the very important recommendations contained in this report on how Parliament can strengthen its legislative and oversight role, including:
That Parliament gives consideration to the impact of the current party list electoral system and the possibility of electoral reform
That in light of the Travel-gate issue, that the conditions under which Members of Parliament become ineligible to hold office must be reviewed;
That Parliament should take steps to improve the quality and substance of debate within the institution and should strive to timeously debate current matters of public concern. This includes revisiting the arms deal and holding a debate on the adoption of a resolution calling for the establishment of a judicial commission of enquiry into the arms deal;
That the current mechanisms through which unanswered parliamentary questions are followed up on needs to be assessed and revised so that the Executive is held to account for failing to reply to parliamentary questions;
That Parliament gives serious consideration to the issue of whether Presiding Officers should resign form senior political party positions for the duration of their appointment
The DA is very concerned that after almost two months after the first sitting of the fourth Parliament, this report and its recommendations have not yet been debated or considered by the National Assembly. I trust you share our concern by viewing this issue in a serious light and that our request will receive your favourable consideration, bearing the following in mind:
1. You were one of the members of the Independent Panel that compiled this report and its recommendations;
2. As Speaker of the National Assembly it is your responsibility to ensure that Parliament’s constitutional responsibilities are fulfilled effectively and efficiently at all times; and
3. You referred to this report in your budget speech on 2 July and stated “the report contains various recommendations that we should debate and consider for possible adoption and implementation”
It is imperative that this report be properly debated and thoroughly considered by Parliament and that these recommendations be adopted. This will ensure that parliament is effective and efficient in fulfilling its constitutional obligations and that this report does not become yet another fruitless, ineffectual exercise and a waste of taxpayers money. It is important that the fourth democratic parliament ensures that the legacy issues inherited from the third Parliament be dealt with and that a way forward be charted.
I trust that my request will receive your most favourable consideration and I am looking forward to your reply in this regard.
Chief Whip: Democratic Alliance