Parliament, the Constitution and accountability to the people
The Sixth Parliament kicks off in the wake of revelations of alleged corruption brought to light at the judicial commission of inquiry into allegations of state capture. We recall in October 2017, the then Minister of Finance, announced a budget deficit of R48,2 billion. Later that very same year, the Auditor General announced that over R45 billion was lost due to wasteful expenditure. To plug this deficit, a 1% VAT increase was proposed during the Minister of Finance’s Budget speech in February 2018. Despite outcries by many not to implement this tax, as the poorest of the poor and many households would be adversely affected, the tax was implemented as there was no other way of finding the funds to plug the deficit.
In terms of the Constitution, sections 44, 55 and 68 mandate Parliament, being the National Assembly (NA) and National Council of Provinces (NCOP), to pass legislation and to maintain oversight and hold accountable the executive, departments and their entities. In terms of the Constitution, sections 59 and 72 mandate Parliament to involve the public and to conduct its affairs in an open and transparent manner. Parliament therefore must pass legislation, conduct oversight and ensure the public is involved in its processes.
In the light of the various commissions of inquiries and the revelations of alleged corruption which occurred whilst the Fifth Parliament was in session, a question to reflect on is whether the Sixth Parliament will be more vigilant or whether it can display more activism in fulfilling its mandates.
The answer possibly lies in Parliament’s constitutionally mandated oversight function. The true test of democracy is the extent to which Parliament can ensure that government remains answerable to the people. This is done by maintaining constant oversight (monitoring) of government’s actions. During committee meetings, Chairpersons, MPs and Delegates engage with the executive, departments and their entities through questions, comments, criticisms and proposals, on how laws have been implemented, how organs of state have spent the money allocated to them and whether programmes are in line with agreed-to objectives as outlined in government policy, state of the nation address, etc. After the budget briefings by departments and their entities, committees prepare and adopt a budget review and recommendations (BRR) report endorsing the budget for a department. This report is then debated in the NA, where it is most often approved. This gives government the authority to execute its plans as they are entrenched in the budget.
I think involving the public in the oversight structures will add to enhancing oversight and implementation. Measures must be taken to close the gap between the public and policy- and law-makers. How can the public be involved in the oversight functions of Parliament, the Legislature and Municipal Councils? There are various civil organisations that monitor and comment on bills. However, many of these organisations are funded by various organisations and institutions and therefore carry an interest.
There’s nothing wrong in carrying an interest or highlighting a particular voice in the legislative and policy-making process. My question is more about how ordinary citizens can become involved and have a voice in the legislative and oversight structures. How can they participate in ‘an open, accountable process through which individuals and groups within selected communities can exchange views and influence decision-making’ and ‘a democratic process of engaging people, deciding, planning, and playing an active part in the development and operation of services that affect their lives’ (National Policy Framework for Public Participation, Department of Provincial and Local Government, 2006)?
Is this even possible? Yes, it is. Citizens are yearning to participate in processes affecting their lives, however they do not know how to do this. These citizens must be taught how the system of policy- and law-making works, how to organise themselves and how to influence these processes. Whose duty is it to inform and educate citizens on how to participate in these processes?
The Constitution and case law seem to point to Parliament and the Legislatures. Doctors for Life v the Speaker of Parliament (2006), Matatiele Municipality v President of the Republic of South Africa (2007) and recently, Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others (2015), all reinforced that there is a duty on Parliament to facilitate public involvement in the legislative process. Should there therefore not also be a duty to involve the public in the oversight processes in Parliament and Legislatures?
This will also give credence to the principle of separation of powers. In the drafting of the Interim Constitution, the principle of separation of powers was adopted. The doctrine therefore recognizes the functional independence of the three branches of government, namely, the legislature, the executive and the judiciary. One should not usurp the functions and responsibilities of the other. The three branches are not hermetically sealed from each other and exhibit a degree of overlap.
Another question to consider is whether there is a correlation between the voter apathy in the May 2019 elections, where voter turnout dropped to 65% of registered voters, and citizens not knowing how to participate in public processes, influence decisions affecting their lives or hold policy- and law-makers accountable?
Looking back at the Johannesburg protests, these came about from a community feeling disengaged. Community leaders had reached out to the Mayor and then to the Minister of Police about serious issues affecting their lives. They wanted the opportunity to ‘exchange views and influence decision-making’, however these attempts were unsuccessful and they therefore resorted to other measures to obtain the attention of policy- and law-makers.
For Parliament to become the People’s Parliament as the Constitution envisages, it must educate the people about what it is doing and how it can be influenced. These linkages must be built and maintained. This will strengthen the social capital, trust, linkages between government and citizens. It will also increase transparency and accountability, which in turn will enhance the principle of good governance. More importantly, it will give meaning to “The people shall govern” of the Freedom Charter, 1955.