7 June 2001
Madam Deputy Speaker, approximately forty six years ago our people gathered at the Congress of the People, in Kliptown and pledged:
"We, the People of South Africa, declare for all our country and the world to know:
….that our people have been robbed of their birthright to land, liberty and peace by a form of government based on injustice and inequality;…..
And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won….
The people shall govern!
Every man and women shall have the right to vote for and to stand as a candidate for all bodies which make laws;..."
This is appropriate to serve as a reminder that the majority of members in this house are elected representatives committed to the Freedom Charter and a constitutional democracy.
The Speaker, when elected to this democratic institution for the first time in 1994, captured the spirit of the Congress of the People in her acceptance speech when she reflected on the importance of Parliament as an institution. For her, like many others in this House, this came with a lifetime of political struggle and experience. She stated the following….
"The character of this Assembly must become the voice of the people of South Africa articulated through their elected representatives. This house is both a fulfilment and the repository of the values and principles that, at great cost, have driven the changes through which our country and people are passing.
All eyes will be on this parliament as it meets to address the needs and expectations of all South Africans. May our proceedings here, whatever our political differences, be marked by a spirit of mutual respect for one another and for the institution of a constitutional democracy."
We are, however deeply conscious today that we have elected members in this House who reflect their lack of commitment to this democracy and this institution through irresponsible allegations and actions. They appear not to be concerned about the interest of this institution, nor parliament and above all not in the interest of our constitution - ours being a constitutional democracy. We see this through the interpretations by Honorable Douglas Gibson continued allegations.
Madame Deputy Speaker, allow me to refer in some detail to some of the Constitutional dimensions of the debate that we are engaged in.
The liberal media, intellectual community and the opposition parties that assume the liberal mantle, is couching this debate as one about "the separation of powers" in a democracy. The usage is in line with the Constitutional Preamble that determines:
"There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness".
Let me venture into explaining the separation of powers principle being a member of the executive… and the executive operating consciously within a framework related to this principle. The liberals in our midst persist in interpreting the separation of powers as an absolute divide. In the process they ignore judgement on this matter as was already handed down in 1996 by the Constitutional Court when it concluded:
"No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation." Quoting American case law, the Court concludes "the areas are partly interacting, not wholly disjointed".
I will come back to this very important judgement.
Now maybe seeing things in the absolute is the luxury of those who continually sit on the side as spectators, never actually having had to enter the fray of reality, and having to cope with the tensions and the trade-offs that real life decision-making entails. Well, the Speaker and the Government do not have that luxury - we have to make decisions, and make decisions fast, but always trying to stay true to the bigger aim and direction - in our instance that of achieving, and strengthening democracy with an aim of eradicating the injustices of the Apartheid past.
The second general observation centres on a trend that we are noticing. That is the systematic undermining of the institutions and offices that underpins our democracy. To sow dispersion at the slightest occasion and trying to create the impression that our constitutional democracy is under threat is very irresponsible politicking. To attempt to force down Constitutional crisis where it does not exist is tantamount to treasonous behaviour. In today's global context such attempts are being witnessed and has effects in terms of our economy. Those who have raised these issues may think that it is an internal parliamentary - and maybe a domestic electioneering issue. However, it is not. Let us be careful, we are operating in a fishbowl.
The institutions of our democracy are still being developed. It has all the potential, the pent up energy and the desire to grow and flourish, we must and will nurture, protect and defend the growth of these democratic institutions. When we engage with matters of our constitution it requires much more than a tentative touch in our endeavours to clarify some of the areas that have been left vague in the wording or situations that were not necessarily foreseen when it was drafted. However, the process of fleshing out the nitty-gritty requires a high level of responsibility for all of us in this House. It is not an issue where either the ANC or the opposition and the minority parties carry the responsibility. It is a matter of how we collectively as the representatives of the people discharge with our responsibility as leaders, and show decorum and restraint where it is called for.
Relationship between Executive and Parliament
There is no single manner in which different countries have been organising the relationship between the legislature and the executive. Although the broad pattern of instituting some separation is apparent in all democracies, the degree of it differs. Unfortunately, given the overpowering influence of material in international languages which we can generally access - that is English and a spattering of Dutch, we tend to think that the models adopted by Britain, the US and the Netherlands are the only constitutional models which we could conceivable draw from. Yes it is true that in these countries members of the executive do not have shared claim to being members of the legislature. They either resign from those positions, or they never belonged to the legislature in the first place. However, for example in the German system, this is not the case. Dual roles of belonging to the Executive and the Legislature are common and it is equally feasible to draw from such examples.
The paranoia with the complete separation comes when we attempt to see our constitutional democratic system, as made up of separate parts, instead of seeing the very dynamic relationship between the parts - looking beyond the structures, and concentrating on various relationships of checks and balances. As the Constitutional Court in 1996 said when it Certified the Constitution:
"… the separation of powers doctrine is not a fixed or rigid constitutional doctrine, it is given expression in many different forms and made subject to checks and balances of many kinds. It can thus not be said that a failure … to separate completely the functionaries of the executive and legislature is destructive of the doctrine. Indeed, the overlap provides a singularly important check and balance on the exercise of executive power. It makes the executive more directly answerable to the elected legislature… Cabinet members are compelled to provide Parliament with full and regular reports concerning matters under their control. And finally, the legislature has the power to remove the President and indirectly the Cabinet."
When we drafted the South African Constitution we opted consciously for a model that would take cognisance of our historical circumstances. We opted for a system that would allow the Executive to actively lead - yet keep them answerable and accountable. We have designed a legislative process in which the Executive often provides the impetus for new policy and legislation. But through the deliberative process in Parliament, and particularly the Committee system, the legislature shapes and moulds the content thereof, and in the end it is only they who can pass legislation and formally adopt policy. Obviously the legislature can also initiate its own legislation, separately from the Executive, and this constitutional right remains.
However, nowhere does the Constitution - which is supreme in this country dare I remind you - allow the legislature to give instructions to the Executive through any other avenue than by passing an Act. In all other circumstances they can only recommend. And the Executive still has the choice - and the responsibility - after having weighed up all the information at its disposal, and having taken into consideration a very broad range of dynamics, to make the decisions. Any attempts to have it differently is unconstitutional and the Speaker justifiable and rightfully so, rules on such matters accordingly. This is exactly how the Parliamentary Law Advisor has advised the Speaker on these matters. To quote to you from this advice:
And this is how it happened in the case of putting together the investigative team that is to be involved in the Arms Deal enquiry. The Speaker acted entirely in line with the advice that she was given in line with the advice she was given and the rules and constitution on the relationship between Parliament and the Executive. As stated by Honorable Pallo Jordan, Any Speaker that was worth their salt would have made exactly the same ruling. Even IDASA in its review on Democracy and the Arms deal states, and I quote:
"As the Speaker rightly pointed out on 27th December, (for parliament to instruct the executive to grant the SIU a proclamation) this would be of a 'dubious legal and constitutional validity.'
To complain of the speaker paying attention to "fine points of legality", such as Member Holomisa is doing - or being unnecessarily legalistic as the Hon. Member Gibson suggests - where the law is quite clear, is opportunistic to say the least. Most probably it is because Genl. Holomisa ruled through military force in the short time of his leadership in his Bantustan, that he could so easily disregard parliamentary conventions and legality.
Let me pay some specific attention to the oversight role of the legislature. The parliamentary system that we have put in place provides for an abundance of mechanisms to fulfil this role and strengthen it. The committee system where a commensurate Parliamentary Portfolio Committee accompanies every Cabinet Portfolio is a very powerful mechanism. In addition, we have reformed the Question and Answer sessions in parliament to allow more access for the smaller parties who cannot spread themselves adequately across the various portfolio committees, to exercise some democratic oversight.
The Constitution also provides for another category of checks and balances, these being the Chapter 9 institutions. In addition we have created a variety of Executive Agencies, some of whom have investigative functions. However, the relationship between the legislature and these two categories of institutions are very different, and this must be understood and borne in mind in this debate. The House can refer matters to the Public Protector and the Auditor General who may or may not take these matters up, although provision is being made for a reporting relationship to relevant legislatures. In the case of the Public Protector a report is expected only once a year!)
Relationship between Speaker and Parliament
The independence of the Speaker from party political affiliations and activity seems to pre-occupy the thoughts of many at the moment. Similar to the points I have made in terms of the Executive - Legislature relationship, there is not a single model in terms of the situation of the Speaker, although our liberal colleagues, who only immerse them in the old colonial Anglophone systems, would want us to believe differently.
Journalists such as Barry Streek, with overwhelming enthusiasm quotes the British example, where the speaker resigns from his or her party on election and on completion of their term in the Chair are elevated to the House of Lords. He relies on a statement of two quite questionable "authorities" to give credence to his suggestion that if we do not follow suite, the system that this House has opted for is of a "lesser" quality and will automatically give rise to problems. These authorities are an expatriate South African who is a member of the British Parliament, and none other than Louis le Grange, the old Minister of Police who many of us would rather like to forget, rather than be reminded of him as a role model.
The correct answer to ask in terms of the Speaker - Parliament relation is of course not whether or not the incumbent to the role belongs to any of the parties represented in the House, but rather than in the execution of the duties of Speaker/ or chairperson, whether or not she is diligent, skilful and knowledgeable. Impartiality, albeit important, is but one of the considerations. And this we tend to forget if the debate gets shaped in a certain way through the line of accusations levied at her in this "open letter". The Speaker is not on trial!
But let us ensure that if there is anyone who wishes to raise an issue on the Speaker in terms of the manner in which she has carried out her responsibility as Speaker - and if they want to (ab)use their rights as Members of Parliament to do so - it should be done in terms of the entire spectrum of the Speaker's decisions and actions and through a substantive motion. We cannot allow to be drawn in as silent participants in a process shaped by the flawed interpretation of a specific incident by the leader of the UDM. In the history of this Parliament such behaviour will be interpreted as tacit condoning of a hatched job by a man with an over-inflated ego of himself and his role in history.
It is the lesser ones in our midst who through innuendo, suggestion and half-baked presentation of arguments that have more recently been trying to cast dispersions on a great woman, with character, integrity and who has brought dignity and decorum to the institution of Speaker.
For this, and a lifetime of achievements she has been recognised in international fora that the likes of Holomisa, Leon and Gibson have only heard about. She is currently Co-Chairperson: Global Coalition for Africa, Commissioner: UN Commission on Human Security and member of the UN Secretary-General's Advisory Panel of High-level Personalities on African Development. Previously she was also board member of International IDEA as well as Chair of the SADC Parliamentary Forum.
I want to end my comments in terms of the relationship between the Speaker and Parliament by cautioning that we must always be very clear when we attack the Speaker, whether we are able to contain the damage inflicted to the person, or whether we are not systematically (albeit sometimes unintentionally) undermining the institution itself. Worse of course is when we walk mercilessly over an individual, pretending that he/she is the problem, but full-well knowing that it is the institution that is the actual target and that needs to be undermined in order to achieve life long petty personal ambitions that are being frustrated for some through the democratic process.