The idea of a "People's Parliament" has been at the centre of the ANC's political vision. But what this might mean in specific institutional terms has received little attention in our publications and conferences. The result has been that the views of our parliamentary opponents, and academic and media critics has tended to dominate public debate. And the contribution that Parliament/Legislatures could make to the achievement of the objectives of our movement has not been thought through.
Recent events in the National Parliament, particularly its Public Accounts and Ethics Committees, make this task all the more urgent. Since one of the functions of Parliament/Legislatures is to create and sustain a government, actions which undermine Parliament/Legislatures, undermine the authority of the government in the long term, making it more difficult to mobilise support for its decisions.
My point of departure is that good governance, and the realisation of the ANC's political project depends on the development of a "strong" Parliament/Legislatures. This so because Parliament/ Legislatures play a crucial role in identifying the needs of the people, articulating their experiences and views and thus in determining the national political agenda. As "oversight bodies", they help identify problems of policy failure that require attention and help in overcoming bureaucratic inertia.
In this regard, I will make two preliminary points. Firstly, building a strong Parliament/Legislatures will depend on the ANC as the governing party taking a long term view on the decision making structures and management systems that are appropriate for a "People's Parliament". Reactions to immediate political pressures and considerations of short term political advantage should not be at the expense of long term goals. Secondly, building a strong Parliament/ Legislatures should be approached in the spirit of what Roberto Unger, the Brazilian social activist and intellectual has called "democratic experimentalism". The institutions of a constitutional democracy, including representative bodies have widely come to be regarded as fundamental. But they should be regarded as a point of departure, not the end point of the project of building a democratic, socially just and humane society. Representative democracies, in Unger' words "can assume many different institutional forms, with radically different consequences for society". We should therefore constantly be thinking about how our Parliament/ Legislatures should be designed as institutions to reflect our people's ideals and interests.
Most theorists of transition would agree that the framers of our Constitution were correct to choose a parliamentary, as opposed to a presidential system of democratic government. Such systems, together with proportional representation, tend to produce inclusive government, as opposed to "winner takes all" outcomes common in presidential systems, and is therefore conducive to the consolidation of democracy in societies with a recent history of conflict.
Since the political majority in parliament also controls the government, the Executive and the Legislature are 'fused' and the likelihood of conflict between the two branches of government, common in American type systems based on a clearer separation of powers, is reduced. Party discipline ensures that the governing majority acts cohesively. These characteristics of parliamentary systems facilitate the translation of the objectives of the electoral majority into government decisions and the effective exercise of Executive authority.
Parliamentary systems tend however, also to produce an imbalance in the relationship between the Executive and Parliament/Legislatures and a subordination of the internal workings of Parliament/ Legislatures to the requirements of the government. This is so because the members on whose support the government is dependent to sustain it in office, and who are subject to party discipline, are at the same time required to subject the government to critical scrutiny. This can lead to a weakening of Parliament/Legislatures investigative and oversight roles and to less transparent, accountable and effective government.
The weakening of Parliament/legislature(s) tendency evident in parliamentary systems is by no means inevitable. In fact, a range of 'types' of parliament - ranging from 'rubberstamp' parliaments through 'arena' type parliaments to more transformative representatives bodies appear in parliamentary systems. The German Bundestag for instance, plays a critically important role in relation to both government legislation and the budget. Contextual factors like the orientation of the leadership and membership of the governing party, relationships within and between parties and the resources available to Parliament/legislature(s), etc will have an impact.
In South Africa, the character of the governing party as a liberation movement committed to democracy and the presence of a large number of talented, idealistic and influential leaders in both branches of government immediately after the establishment of democracy, ensured an initial strengthening of the representative branch of government. But in the long term, as the composition of the governing party undergoes some inevitable change, and the political leadership becomes more closely associated with the Executive, the normal 'weakening' tendency in parliamentary systems may begin to prevail in the absence of a clear ANC vision and conscious strategy to sustain the vitality of the representative branch of government.
Some commentators suggest that the unusually strong position of the governing party at present will reinforce this tendency. They fail to appreciate that the strident, media-driven style of some opposition parties, and their narrow emphasis on the role of Parliament/legislature(s) as a 'check' and 'limit' on the authority of the Executive, are important factors limiting the capacity of parliament to play a role in promoting not only accountability and good governance, but service delivery and development. C E S Frank for instance, maintains "parliament is far from a negligible tool... But the present processes of policy-making place an unnatural and heavy burden on it. Confrontation and conflict, posturing for the media, oversimplification and trivialisation... The subordination of every aspect of parliaments or approach to the legislative process to the demands of partisan warfare, all follow from parliament's strange role".
Question period for instance has the important function of providing parliament with information which will enable parliament to play a role in promoting accountability and service delivery. Therefore, MPs/MPLs who have been elected to support the government should be willing to question the government on behalf of their party and the electorate. However, many are not sure that this would be appropriate. And the opposition approaches question period with a view to short-term tactical advantage. As Sir Michael Quinlan told the Scott Commission of Inquiry, the activity of giving and seeking information in parliament, has become, "in a certain sense analogous to a game... in the sense that it is a competitive activity conducted within rules largely for a purpose different from that of its apparent form". While the form is to bring information into the public domain, the prime purpose is on the one hand "to give the government a hard time". And on the other "for the government to avoid having a hard time". The "opposition will seek to extract information which they can use to portray the government in a bad light: and they will... feel free thereafter to exploit the information, if necessary selectively and tendentiously, to that end. The government for its part will be reluctant to disclose information of a kind, or in a form that will help the opposition to do so". The so called "strong opposition", which judges its efficacy by the number of embarrassing questions it asks, thus promotes a politics of "smoke and mirrors" and erodes the capacity of Parliament/legislature(s) to deal constructively with the problems our society confronts.
Whatever the causes of this potential weakening, I would argue that the ANC should to be committed to maintaining and strengthening the representative branches of government, since the idea of a 'strong' Parliament/legislature(s) is consistent with notions of democracy implicit in ANC traditions as well as in contemporary notions of good governance. This later aspect is of critical importance since it helps to position the ANC clearly in the context of global cultural and political trends and improves the attractiveness of South Africa as a destination for foreign direct investment. Furthermore, 'strong' Parliaments/legislature(s) draw on the talents, energies and expertise of all deployees to government, whereas 'weak' Parliaments/legislature(s) tend to encourage passivity and inaction among "back-benchers".
Parliamentary strengthening comes in many guises depending on the objectives it is intended to serve. For instance, it may aim at enhancing the 'effectiveness' of the opposition or at strengthening the capacity of private members to initiate legislation. Institutional innovation in the design Parliament/Legislatures aimed at strengthening the representative branch of government, which inspired by the ANC's perspectives should, I believe, satisfy the following criteria:
It should not be counter-posed to Executive authority. Indeed as members of the governing party we ought crucially to be interested in encouraging measures which enhance the efficiency and effectiveness of the Executive, which promote the capacity of ministers to direct the bureaucracy, etc.
It should respect the limits of the parliamentary system. Not only will innovation which does not do so fail, but risks jettisoning the desirable features of parliamentary systems.
It should promote good governance, accountability and transparency.
It should promote development, service delivery and enhance the overall performance of government.
I do not intend in this paper to set out a comprehensive and detailed programme of institutional innovation. I will put forward only embryonic ideas and suggest some pointers in the hope that this will stimulate creative thinking in our movement on these issues.
A. Representation
Representative bodies form the central pillar of democratic government. Through our system of cooperative governance incorporating Provincial Legislatures and the electoral system based on proportionality, the framers of our Constitution sought to reinforce representation and inclusivity. This aspect of our system helps to contain conflict by encouraging an expression of societal differences within rather than against institutions, to create a stable framework in which the governing party can govern and to sustain democracy in a complex and diverse society.
But the rituals associated with parliamentary politics and the class, gender, and racial inequalities in our society tend to demobilise popular participation in politics. It is therefore necessary to take positive steps to overcome obstacles to participation.
Participatory democracy is sometimes counter-posed to representative government. But strategies to improve public participation can also be thought of as reinforcing and strengthening representative government - by providing public representatives with information they would not otherwise have but which is necessary for effective and responsive decision-making. Strategies to facilitate and promote public participation are also critical in ensuring the participation of marginalised and under-resourced constituencies in decision-making by representative bodies. In the absence of special measures, public decision-making is also vulnerable to 'capture' by special interests.
Gauteng has established a Public Participation and Petitions Office separate from the Information and Communication Directorate, with dedicated staff and budget and with a mandate to promote public participation by marginalised constituencies. The office has engaged in an extensive public education programme and has worked effectively with the committee section to promote public participation in committee hearings.
The Legislature has also pioneered a petitions procedure which gives effect to the constitutional right to the petition. A Petitions Committee (a kind of parliamentary Ombud) has been established, which provides citizens with a cheap form of administrative justice (to challenge termination of a grant for instance) and with a surrogate form of constituency representation (since constituents are able, whether or not their deployed representative is working, to raise matters directly with the Legislature). Both the rules and the petitions law that has been adopted, place a positive obligation on the Legislature to assist those who may be unable to petition (for reasons of illiteracy, for instance).
The content of the petitions indicates that some marginalised and unresourced constituencies are aware of the procedure and are using it. The petitions office has received petitions relating to a wide variety of matters including, applications for disability grants, pensions, dependants of prisoners, complaints of inaction by a Town Treasurer, inaction by the legal aid board, inaction by the Soweto City Council, provision of housing in an informal settlement in Centurion, evictions in Lanseria, a proposed road in Thokoza, the Land Restitution process, complaints by inner city tenants, forced removal of tenants from an informal settlement, corruption by Town Council officials and evictions in Chiawelo.
The ANC should perhaps think about establishing a petitions committee in the National Parliament.
B. Oversight
One of the more important roles of Parliament/ Legislatures is as bodies which exercise scrutiny and oversight over the Executive. The dominant, 'traditional' model of parliamentary oversight emphasises the "separation of powers" and "checks and balances". While not entirely displacing this paradigm, oversight could also be thought of as a way of promoting cooperation between the Executive and Parliament/legislature(s) and in this way contributing to accelerated service delivery. In the words of the report on oversight commissioned by national parliament (Corder et al): "The oversight role is often seen as that of opposition parties alone, designed to police and expose maladministration and corruption. Such a view is limited and deficient.
Oversight and accountability helps to ensure the Executive implements laws in a way required by the Legislature and the dictates of the Constitution. The legislature is in this way able to keep control over the laws that it passes and to promote the constitutional values of accountability and good governance. Thus oversight must be seen as one of the central tenets of our democracy because through it the legislature can ensure that the Executive is carrying out its mandates, monitor the implementation of its legislative policy and draw on these experiences for future law-making. Through it we can ensure effective government.
Seen in this light the oversight function of the legislature compliments rather than hampers the effective delivery of services with which the Executive is entrusted". The ANC and the government should therefore be committed to reinforcing the scrutiny functions of the representative branch of government.
It is important here to be a little more specific. The question is how, through their oversight function, can committees contribute to enhancing service delivery? The traditional oversight/accountability model is a form of compliance auditing. Its raison d'etre is the discovery of error. But a delivery enhancing concept of oversight should primarily be aimed at identifying the systemic causes of policy failure by monitoring the implementation of policy and programmes. Committees have to have the requisite resources, information and expertise to assume the role of monitoring in the policy cycle.
The relevant Standing Committees could also consider developing a set of performance monitoring criteria (e.g. socio-economic indicators like infant mortality rates, access to potable water, nutritional status) to monitor whether the government's poverty alleviation programmes are working with a view to improving their implementation. The Gauteng Legislature is currently examining ways of enhancing the capacity of Standing Committees to monitor expenditure and programme results.
It is off course arguable that monitoring could just as easily be the responsibility of departments. Perhaps it should be a 'shared' responsibility. But civil servants are hardly always the best judges of the efficacy of their own ideas. A role for parliament in the monitoring of the implementation of policy may in fact enhance overall performance of government.
C. The Executive, Parliament and Ministerial Accountability
In Parliamentary systems, the constitutional lodestar of accountability is the doctrine of Ministerial accountability. The South African Constitution creates a Parliamentary Executive which is accountable to Parliament.
Section 92(2) provides that "members of the Cabinet are accountable individually and collectively to Parliament". Section 92(3)(b), requires Ministers to provide Parliament "with full and regular reports concerning matters under their control". Section 102 subjects the continuation of government to the will of Parliament.
But the application of this doctrine of Ministerial responsibility in different situations is not always clear. These are matters which require debate within the ANC.
The traditional approach to Executive accountability to the Legislature assumes, at least in theory, that Ministers alone exercise the powers of executive government and can be called to account both for their own acts and for those done on their behalf. Civil servants on the other hand, have no direct responsibility to Parliament.
It is arguable that the traditional doctrine's refusal to allow a distinction between political and managerial responsibility, does not accord with the realities of modern government, discourages frankness and candour on the part of Ministers, and is inconsistent with public sector reforms. The Public Finance Management Act for instance, draws a clear distinction between the accountability of "executive authorities" (Ministers) and "Accounting Officers" (Heads of Departments).
Opposition parties tend to rely on the traditional conception of Ministerial accountability. Ministers are routinely called upon to resign whenever things go wrong. I think the ANC should emphasise more modern notions of accountability, which do not jettison the element of resignation for malfeasance, but shifts the emphasis from the apportionment of blame to the obligation to provide accurate information to the House and the correction of error.
Strategically, such a paradigm shift would locate the ANC clearly in the new thinking on accountability, defuse unproductive political pressures on individual ministers and enhance both the accountability of the Executive to Parliament/legislature(s) and the effectiveness of these bodies. In addition, the traditional conception of accountability assumes that Ministers but not civil servants are directly accountable to Parliament/legislature(s). It is arguable that the "new accountability" should require direct accountability of civil servants to Parliament/Legislatures. Again, this could have the effect of improving overall performance. Fears that this approach could lead to tensions between ministers and their officials have generally not proved to be well founded. Consideration should be given to taking the political initiative on these issues at the appropriate time. A code of conduct for ministers and civil servants setting out their responsibilities to Parliament/legislature(s) could be considered as part of this ANC led initiative.
D. Strengthening the Governing Party in Parliament/Legislatures
The debate about the role of Caucuses has correctly concluded that these structures are subordinate to the constitutional structures of the ANC. But the role that caucuses play in governance has been neglected. I put forward the following hypothesis: strong caucuses produce strong Parliament/Legislatures and consequently contribute to effective governance: conversely, weak caucuses produce weak Parliament/ Legislatures. Within Parliament/Legislatures, caucuses play a critically important role in ensuring party cohesion, discipline and unity, which are essential preconditions for effective leadership by the governing party within Parliament/Legislatures.
Matters of Parliamentary strategy and tactics should be subject to full and adequate discussion within caucus. Caucuses also play an important role in monitoring the Executive. Caucuses should therefore be thought of as collectives with decision-making responsibilities on political issues, as opposed to merely administrative matters.
While caucuses have important responsibilities within Parliament/Legislatures, these should not be carried out in a way which subordinates the investigative responsibilities of Parliament/Legislatures.
E. Strengthening the Legislative Sector
The transition to democracy in South Africa produced a bicameral national Parliament and nine Provincial Legislatures. Some of the Legislatures had to be established from scratch. Others inherited parts of administrations established under the previous order.
From their inception, newly established provincial Legislatures in particular, faced many challenges. They had to draw their staff from a very limited pool of skills, develop systems to manage their human resources and budgets, establish committees with inexperienced members, adopt new Rules, etc.
It is not surprising therefore, that they show elements of "weakness"- sit infrequently, pass little legislation, are dependent on the Executive for information and their budget allocations, etc.
This "weakness" undermines the capacity of the ANC to consolidate democracy, promote accountability, improve governance and accelerate delivery. Development and transformation of the legislative sector must therefore be one of the central strategic priorities of the ANC. The ANC has to develop a vision, and take a long-term view of the development of legislatures as institutions with an important if not a central role in our democracy.
F. The Politics of Parliamentary Strengthening
The "strong" Parliament model does pose some risk for the governing party in an adversarial and politically contentious environment. Nevertheless, I think that the emphasis on the constructive role of Parliament/Legislatures will resonate with our own constituency, promote good governance, strengthen the performance of the governing party in Parliament/Legislatures and enhance service delivery. The government therefore has an interest in Parliamentary strengthening and should support efforts aimed in this direction. Parliamentary strengthening also requires a willingness to cooperate across party lines on basic issues of institutional design.
This paper has argued that the ANC should explicitly seek to promote a 'strong' Parliament/legislature(s) within the framework and limits of a parliamentary system. This will help consolidate democracy, improve governance, accelerate delivery, and position the ANC favourably in the global context.
Developing a 'strong' Parliament/legislature(s) involves articulating an alternative conception of parliamentary politics, which fundamentally unsettles the trivialising logic of "oppositionism". Moreover and most important, the idea of strong Parliament/ Legislatures is entirely consistent with and arguably required by our transformative political project.