South Africa’s new parliament needs to do a better job of holding cabinet to account: legal scholar weighs the chances

South Africa has entered new territory with a government of national unity after the May elections. The parties representing more than 70% of the electorate will now be the dominant force in parliament.

The parties that are not part of the unity government will doubtless continue to demand accountability by the executive. A particular challenge arises, however, for the clear majority of MPs from a range of political ideologies now represented in the executive.

The constitution obliges parliament to hold the executive accountable. Having several political parties in the cabinet complicates this.

How will this work out, in the light of the law and past practice?

I have focused on this relationship for the past 25 years. Here I reflect on how the changed political landscape might affect parliamentary oversight. In essence and in the light of past experience, I am concerned that MPs’ vigilance may be weakened.

In the past, the dominance of one party in government (the African National Congress) meant that its MPs shielded the cabinet from proper accountability. But MPs representing all other parties asked hard questions of ministers and exposed maladministration. It is now possible that such pursuit of accountability will be diluted by an expanded range of party loyalties.

The unity government is governed by a high-level statement of intent and some rules of engagement. These are praiseworthy, in line with the values of the constitution. But translating them into parliamentary practice is the critical test.

The infusion of a range of political ideologies in the unity government may offer hope for a transparent and accountable exercise of public power. A promising sign is that the chairs of parliament’s portfolio committees – the key oversight structures – have been proportionately distributed among the government members.

But important questions still need answering:

• Will MPs fulfil their constitutional duties of holding the executive to account, when the minister concerned may be a member of their party?
• What attitude will the party leaders and whips take to the pursuit of fair, efficient, effective and honest executive action and public administration (section 195); regardless of the party affiliation of the minister concerned?

These questions demand urgent consideration and answers firmly in line with the overriding constitutional mandate.

The South African constitution

The foundational requirement in section 1 (d) of the 1996 constitution is that the

multi-party system of democratic governance [must] ensure accountability, responsiveness and openness.

Accountability can be said to require a person to explain and justify – against criteria of some kind – their decisions or actions. It also requires that the person makes amends for any fault or errors. They must then take steps to prevent a recurrence.

Oversight refers to the role of legislatures in monitoring and reviewing the actions of the executive government. It covers a far wider range of activity than the concept of accountability.

Parliament’s duties in holding the executive to account

The constitution obliges parliament to hold the executive accountable. It’s meant to do this in various ways:

• the work done by portfolio committees
• approving every budgetary proposal (sections 73 and 77)
• getting answers from the executive, in plenary session or committee sittings (sections 56 and 69)
• by having more freedom of expression in parliamentary proceedings (sections 58 and 71, dealing with parliamentary privilege).

Nearly 40 provisions in the constitution give parliament the authority and the obligation to oversee the exercise of public power and hold the executive accountable.

Chief among these provisions is 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.

In addition, section 195 prescribes basic values and principles governing the public administration, such as the maintenance of

• “a high standard of professional ethics”
• the “efficient, economic and effective use of resources”
• the provision of services “impartially, fairly, equitably and without bias”
• “accountability and transparency”.

It is parliament’s duty to ensure that they are complied with.

Recent history

How have these constitutional provisions translated into practice since 1994?

The inaugural speaker of parliament (1994-2004), Frene Ginwala, took initiatives to realise this vision. Notably, she proposed a system whereby parliament would scrutinise every piece of subordinate legislation made pursuant to authority delegated to ministers (1999). And she commissioned a report which clarified and proposed in greater detail parliament’s obligations under section 55 (1999).

But over the years parliament responded only partially and ineffectively. This failure was noted by the State Capture (Zondo) Commission (volume 6, June 2022), which probed state corruption during former president Jacob Zuma’s tenure (2009-2018).

Deputy chief justice Raymond Zondo, the commission chair, cited lack of effective oversight as a factor contributing to the ease with which the executive and its fellow travellers were able to corrupt the public administration during the Zuma presidency. The commission advised that the electoral system and some aspects of the committee functions should be reviewed.

There are many reasons why parliament failed to hold the executive accountable. The most prominent has been the control exercised by party leaders over MPs. In particular, the ANC starkly failed to promote accountability in seeking to protect its leaders. The most notorious example was the lies told in parliament in renaming the swimming pool built in Zuma’s rural homestead in Nkandla, with public money, as a “firepool”.

Portfolio committees are the chief mechanisms to pursue accountability. Where the party whip is wielded to secure unquestioning obedience, committees become frustrating forums. This, despite the best intentions of some MPs serving as their members. Resort must then be had to access to information routes, litigation, and other less open means of exposing the abuse of power or maladministration.

Committee chairs exercise significant authority. While the ANC still dominates the new parliament in this sphere, eight committees out of 30, including some significant portfolios, are now chaired by members drawn from other parties. This development may become significant.

Next steps

Hard bargaining is needed before the country has a definitive sense of how parliament will enforce executive accountability under the unity government.

The speaker, as head of the legislative branch, must take the lead. Sadly, since the days of Ginwala, no speaker has come close to emulating her energy and commitment to participatory democracy. It may be that the deputy speaker, who is not from the ANC, could play a role here.

Making the reforms Ginwala commissioned would be a great start. For example, parliament should adopt an Accountability Standards Act to spell out in detail its obligations under section 55. And a standing committee on constitutional institutions should be established.

There are already some worrying signs, however. Most members of the new unity government supported the nomination of John Hlophe MP (the first judge in the history of South Africa to be impeached) as a member of the Judicial Service Commission, the constitutionally authorised body that interviews candidate judges and recommends their appointment by the president.

This is a deeply worrying indicator of a failure to adhere to the fundamental principles of the statement of intent – which emphasises the rule of law and constitutional democracy. This aspect of government needs close monitoring by fiercely vigilant bodies in civil society.

Hugh Corder, Professor Emeritus of Public Law, University of Cape Town

This article is republished from The Conversation under a Creative Commons license. Read the original article.