South Africa: Policy Brief 31 - Democratising South Africa's Parliament

analysis

The role of effective and representative democratic structures, processes and institutions are vital in ensuring efficient service delivery and democracy for all. Where it should be participatory and accessible to all citizens, often this becomes a challenge in democratic institutions like Parliament to be more accountable and responsive to citizens.

Introduction

As South Africa prepares to vote in the 2019 national and provincial elections, the country's citizens appear to have started to lose faith in many of the democratic institutions that underpinned the 1994 democratic social contract.

These democratic institutions include Parliament (Veblen 1899, 1909; Wells 1970; Ostrom 1986; North 1990; Hodgson 2006). These democratic institutions are increasingly experienced by ordinary citizens as unresponsive, unaccountable or often not relevant any longer. Of course, if these institutions do not become more responsive, accountable and accessible, people will increasingly look to new ones, including populist ones, or seek answers through violence.

The legitimacy of institutions and rules cannot be "pronounced by decree" (Hodgson 2006: 12). Institutions, such as parliaments, acquire their "moral legitimacy" if they are perceived over time to be accountable, responsive and transparent (Hodgson 2006: 5).

South Africa's 1994 democratic social contract arrangements and its accompanying democratic institutions

At the end of formal apartheid in 1994, South Africa not only abolished racial segregation in politics, economics and social life, but it also created a whole new set of democratic institutions - including laws, rules and policies. At the apex of the new democratic institutions was the new democratic constitution. Old undemocratic institutions from the apartheid-era were supposed to be democratically transformed, such as parliament.

The South African constitution commits the country to both a representative and participatory democracy, on all levels-national, provincial and local. Participation of ordinary South African citizens in democratic life is critical for people to buy into the democratic social contract, institutions and rules.

The struggle of many new democracies has been to reconcile effective policy formulation with democratic norms of political participation. Indeed, the particular patterns of public decision-making that emerge within formal constitutional parameters, not only affects the sustainability of the democracy but also help define the quality of the democracy. If citizens believe that newly democratic institutions are being ignored or downgraded in the making of decisions in their lives, they may seek solutions outside of these institutions. This may, in the end, have negative consequences for political stability and economic development on the whole.

Waves of community protests against poor public services, official corruption and lack of transparency indictment on the responsiveness of SA's institutions

This week ANC chief whip in parliament, Jackson Mthembu (2018), gave the ANC parliamentary caucus 8 out of 10 for their performance as MPs, in ensuring parliament plays an effective oversight role and holding the executive accountable during 2018. However, the reality tells a different story.

The fact that former president Jacob Zuma was not held accountable for mismanagement, unconstitutional behaviour and corruption show the failure of parliament as an oversight institution. But parliament has also failed to hold to account individual executive members, such as former Water Affairs and Sanitation Minister Gugile Nkwinti (2018), responsible for the "collapse" of the department.

Neither had parliament held former Social Development Minister Bathabile Dlamini, responsible for the mismanagement of the country's social welfare grants. Dlamini failed to ensure that the South African Social Security Agency had the necessary capacity to administer the country's social grants after a contract with a controversial contractor, Cash Paymaster Services (CPS) expired (Godi 2018). The court was forced to extend the contract, to prevent social grant recipients from not receiving their grants, although it ruled that the contract was illegal (Jafta 2018). An enquiry into the social grants scandal, led by Judge Bernard Ngoepe (2018) found Dlamini negligent.

Many of South Africa's municipalities were dysfunctional, bankrupt and beset by corruption (Auditor-General 2018). The Auditor-General regularly reports poor management, irregular expenditure and corruption of municipalities to parliament, but parliament has failed to effectively hold municipalities accountable for poor performance. Most of South Africa's State-Owned Enterprises (SOEs) are bankrupt, corrupt and inefficient, having to be regularly bailed out. Parliament has been spectacularly absent in holding SOEs accountable (Gordhan 2018).

The Constitutional Court judgement on the 31 March 2016 ruled that then-president Jacob Zuma violated the constitution by not paying the money for the upgrade of his private home as recommended by then Public Protector Thuli Madonsela, was a seminal judgement which damned parliament for the institution's failure to hold the executive accountable (Moegoeng 2016).

Madonsela investigated the scandal releasing a report "Secure in Comfort" in March 2014, in which Zuma was accused of abusing public funding worth R246 million rand in upgrades at his private Nkandla home. Madonsela asked Zuma to pay part of the money for the project, a demand rejected by Zuma then, saying he did not ask for it. Importantly, parliament also dismissed Madonsela's recommendations that Zuma repay a portion of the money spent on Nkandla.

The Constitutional Court stated that parliament violated the constitution by absolving Zuma on the Nkandla issue. "The resolution by the National Assembly absolving the president from compliance with the Public Protector's remedial action is inconsistent with the constitution, is invalid, and set aside," the Constitutional Court pronounced. The perceived lack of action by parliament has undermined its public credibility, authority and trust in the institution.

In 2007, Kader Asmal, heading a parliamentary review committee, on the effectiveness of South Africa's Chapter 9 institutions, criticised parliament "to whom these institutions are accountable" for "not sufficiently (interrogating) the reports that these institutions submit and (for not working) closely with them to enhance (their) oversight role over the executive (Presidency and Cabinet)" (Parliament 2007).

The violent community protests sweeping across the country are a sure sign that ordinary people are losing faith in the new democratic institutions and social contract arrangements that underpinned South Africa's 1994 miracle transition from apartheid to democracy (Lancaster and Mtshali 2014). In most of the protests against poor public services, protesters rarely seek refuge in democratic institutions such as parliament, which shows that these democratic institutions are starting to lose their legitimacy as organs of democratic protection.

Clearly, for people to take to the streets, often violently, indicates that they have long given up on approaching democratic institutions such as parliament, viewing these institutions as mostly lame-duck, ineffective and subservient (Lancaster and Mtshali 2014).

How the organisational culture of the governing ANC has eroded the oversight capacity of parliament

The organisational culture of the ANC is becoming disfigured to such an extent that it threatens the deepening of South Africa's democracy. Because the ANC is the dominant party in parliament, its organisational culture will dominate the legislature.

Organisational culture is the behaviours, values and ways of doing things that are deeply ingrained in the organisation (Tayeb 1998; Gumede 2009, 2015). They are seen as normal behaviour by members and supporters of an organisation - which will if one follows them, be tolerated, valued and rewarded.

The ANC's seminal March 2007 discussion document on organisational renewal says there is a tension between the "imperatives of the ANC as a national liberation movement with a distinct culture and revolutionary traditions", and the "demands and obligations" of the government overseeing a democracy (ANC 2007). To start with, there appears to be a seemingly growing belief within the ANC that democratic institutions such as the parliament are extensions of the ANC (ANC 2007).

For another, many ANC leaders and members reckon that the ANC and its leadership are that of democratic institutions, such as parliament; and that the rules have preference over the constitution, democratic laws or democratic institutions such as parliament. An ANC leader or member of parliament may do something illegal - but it becomes illegal if the party says so.

There is a belief among some ANC members that because the ANC was the leading movement in the fight for liberation, not only it is to the spoils of government, but should be appointed to key positions in democratic oversight institutions such as parliament, Chapter 9 institutions and government. For another, under the Zuma administration, loyalty to one faction of the ANC, or leader of the party, had become the single most important criteria for nomination as a member of parliament or to positions in government, rather than individual talent, competence, or commitment to serve the broader interests of the country.

Since it took power in 1994, the more secretive, intolerant and centralised decision-making aspects of its exile, underground military wings, appears to have come to dominate the party's culture. Democratic centralism, which roughly means that a few leaders make decisions, send out commands, and members and supporters must unquestioningly obey, appears now to have become entrenched within the organisational culture of the ANC.

During the vote on the motion of no confidence in former president Jacob Zuma, in August 2017 over his mismanagement of the country, ANC MPs were compelled by their leaders to vote against the motion to preserve party unity. ANC parliamentary chief whip Jackson Mthembu said that although MPs have raised concerns over state capture, corruption and mismanagement under president Jacob Zuma, they would not support a motion of no confidence against the president which was sponsored by the opposition.

The main opposition party, the Democratic Alliance, sponsored the motion of no confidence vote in parliament to get the president to resign. In fact, in a substantial democracy, parliament, legislatures and local councils are other crucial sites, in addition to elections, to hold representatives accountable, eradicate corrupt leaders and governments.

It does appear that many ANC leaders believe that the ANC and the president are above the constitution, and above the scrutiny of parliament, the opposition and democratic oversight institutions. Former president Nelson Mandela would regularly meet with opposition leaders to discuss policy decisions and actively solicit their views. Zuma as president was reluctant to respond to questions from the opposition.

In terms of the rules of the National Assembly, and to give effect to executive oversight, the president must attend a parliamentary session at least once a term to answer questions from opposition parties. Opposition parties in March 2014, even had to ask deputy president Kgalema Motlanthe to ask Zuma to set time to respond to questions from the opposition (Hartley 2014).

South Africa's electoral system will have to be made more accountable and responsive to the needs of ordinary voters

South Africa's current electoral system, the closed-list proportional representative (PR) electoral system, adds to the disenfranchisement of ordinary voters and citizens. In a closed-party list system (like SA), the party decides the order of the names on its candidates' list - and voters vote for the party (which eliminates independent candidates), and therefore, the party's preferred list of candidates. People at the top end of each party's candidates' list enter parliament or the provincial legislature based the number of votes their party gets. Members of provincial legislatures elect premiers.

Once parliament is elected, the members of parliament elect the President - not citizens, who have to accept the choice of the party leaders. Parliamentary representatives are accountable to political parties (leaders), not necessarily voters. The allocation (by parties or party leaders) under the present system of a geographical area of responsibility, to each MP an election, further undermines the accountability relationship between elected representatives and constituencies.

In the electoral system, the party leadership decides on the candidates rather than ordinary members or communities. Voters vote for the party (which eliminates independent candidates) and not the leader. Party candidates are accountable to political leaders, not necessarily voters. The final list of candidates is generally selected by the party leadership. For example, the way the ANC is organised now means that those who are nominated to be MPs are often handpicked by the party leadership, or they are voted in on slates linked to one or the other factional leader.

Members of Parties (MPs) are appointed to the constituency they should serve by the party leadership. MPs are not directly elected by their constituencies. Members are often assigned to a constituency, which almost never corresponds to where they come from, and without consulting the constituency to whom such as a person is often a stranger. The appointee has no obligation to be accountable to their constituency - because they cannot have him or replaced her - if he or she does not perform.

There is little pressure on the deployed MEC or MP to listen to their "constituency"; all they need to do is to please the ANC leadership who appointed them. An independent assessment of the role of parliament concluded: "The fact that Members of Parliament are deployed to constituencies without being directly elected in that area, leads many to argue that members of Parliament are more accountable to their parties than they are to the public." (Govender et al 2006: 59). For another, the party list system, in which party candidates are selected on a list, for positions in the legislature.

In the current system to advance, MPs serve the party leadership, uncritically doing the bidding of the leadership who has the power to reappoint one, rather than prioritising the needs of communities. For example, if an elected representative dies, is expelled or resigns from his or her party, the representative loses the parliamentary seat and the party leadership chooses his or her replacement for that seat. The constitution prescribes that when a party expels an MP, that MP also loses their position. Many MPs fear criticising their party leaders, policies or decisions, because they may be expelled and lose their seats and income.

Public representatives have no incentives to be attentive or responsive to the voters in their given constituency. Communities in the "constituency" of the hapless councillor, MEC or MP, can appeal as much as they want, for better performance. In the end, communities' take the law into their hands and protest, some burning councillors' homes in frustration. Although in many areas councillors or MPs do not live in their constituencies - hence being even more inaccessible to communities.

In most cases, the list is compiled by the party leadership, or through slate voting in which ANC members vote for a slate of candidates attached to a leader. This was the way Zuma was elected ANC president at the party's national conference in Polokwane in 2007. Once in parliament, members are rarely critical of executive or cabinet ministers, who have to report to parliament, fearing criticising these very people, who will decide whether they will be on the candidate's list for the next elections will be deadly to their careers (Govender et al 2006: 59).

Another weakness of the system is that MPs vote in the president - not ordinary voters, who vote for the party. The whole system breeds a culture where the leadership of the party - and not ordinary voters or members are in control.

South Africa desperately needs an electoral system that is able to give more power to ordinary citizens over elected representatives. The current electoral system undermines elected officials' accountability to the citizens, as they are accountable to the party and leadership only. It causes alienation among the voters in elected representatives, parliament and the democratic system itself. The current system also prevents individuals from standing as independents in parliament.

The closed-list PR-system also fits in with the political culture of the ANC, and the other large SA political parties, including the now-defunct National Party, and the Democratic Alliance, who all have strongly centrally controlled internal candidate election systems - where party leaders have a very large say in the selection of candidates.

Conclusion

Because of the failure of parliament, the judiciary has increasingly been compelled to hold the executive accountable, defend citizens against callousness by public and elected representatives, and to ensure public and elected representatives make policies and decisions in the public interest, rather than for selfish gain.

Towards the end of Zuma's presidency, when the mismanagement, corruption and callousness, could no longer be hidden from public view, many ANC parliamentarians showed an appreciably greater robustness to hold the executive accountable. The ANC is now almost split into two parties: a Zuma ANC and a Cyril Ramaphosa ANC. Suddenly, the different competing ANC factions within and in parliament are holding each other accountable, even if for self-interests.

The way parliament is currently structured may have to be relooked at to increase the institution's accountability. For example, there will have to be a review, whether the speaker of parliament, supposedly a neutral, fair and non-partisan office, should come from the majority party.

The idea of having an MP, from the opposition, to chair the public accounts committee, and other crucial parliamentary structures and appointing the speaker, should be seriously considered. The crucial parliamentary public accounts committee for long periods during the Zuma presidential era has been chaired by someone outside the majority party. This appeared to have made the committee more robust in holding the executive accountable.

Over the past year, there has been more collaboration over policy and decision-making and joint voting on issues, among opposition parties within parliament. Opposition parties have frequently jointly taken the executive to court over policies which had been forced through by the ANC using its legislative majority. Such cross-party collaboration must continue. However, there needs to be a greater parliamentary collaboration between opposition MPs and ANC MPs in defence of constitutionally enshrined democratic principles, policies and issues, such as gender equality, social justice and fighting racism and corruption.

Individual MPs of parliament must start to vote, make decisions and policies, based on the public interest, and not that of their party, faction or leader. South Africa's parliament must become more responsive, accountable and relevant if it wants to claw back its waning public authority.

Selected Bibliography

ANC (2007) "Policy conference document on organizational renewal", Johannesburg, March

Auditor-General of South Africa (2018) "Audit Findings for 2016/2017", Auditor-General, Pretoria, May

North, Douglass C. (1990) . Cambridge, Cambridge University Press

Pravin Gordhan (2018) "Public Enterprises Minister Pravin Gordhan Comments to the Department of Public Enterprises and National Treasury Meeting with CEO's of South Africa's Banks", DPE, National Treasury, Banking Association of South Africa, Association of for Savings and Investment South Africa, Johannesburg, June 25

Govender, Pregs, et al (2006) "Report of the Independent Panel Assessment of Parliament". Parliament of South Africa, Government Printers, Cape Town

Gumede, William (2015) "The Administrative Culture of the South African Public Service", , 50 (3), 589-699

Gumede, William (2009) "Modernising the ANC", In Peter Kagwana and Kwandile Kondlo (eds.) . Human Sciences Research Council (pp. 35-57).

Hartley, Wyndham (2014) "MPs enlist Motlanthe in bid to bring Zuma to Parliament. Business Day, March 6

Hodgson, Geoffrey (2006) "What are Institutions". Vol XL, No. 1: 1-25

Judge Chris Jafta (2018) "Constitutional Court Ruling on the South African Social Security Agency", Constitutional Court of South Africa, Johannesburg, August 31

Judge Moegoeng Moegoeng (2016) "Constitutional Court Judgement on President Jacob Zuma's Refurbishment of Nkandla", Constitutional Court of South Africa, Johannesburg, March 31

Judge Bernard Ngoepe (2018) "Findings of the report of inquiry into Social Development Minister Bathebile Dlamini", Constitutional Court, May 7

Lancaster, Lizette and Mtshali, Mpho (2014) "Getting to the bottom of what really drives public protests in South Africa". ISS Today, February 7, Pretoria

Jackson Mthembu (2018) "Comments by the ANC Chief Whip Jackson Mthembu following the ANC parliamentary caucus meeting", National Assembly, Cape Town, 7 DecemberGugile Nkwinti (2018) "Water Affairs and Sanitation Minister Gugile Nkwinti presentation to Parliament's Portfolio Committee and Water and Sanitation", National Assembly, Cape Town, 2 May

Ostrom, Elinor (1986) "An Agenda for the Study of Institutions." 48: 3-25;

Themba Godi (2018) "Comments by the chairperson of Parliament's Standing Committee on Public Accounts", National Assembly, Cape Town, February 27

Parliament of South Africa (2007) "Report of the ad hoc committee on the Review of Chapter 9 and Associate Institutions". A report to the National Assembly of the Parliament of South Africa (2007), Cape Town

South African Water Caucus (2017) "Report on the state of the Department of Water and Sanitation", Portfolio Committee on Water and Sanitation, Cape Town, November 27

Tayeb, Monir (1998) . London, Sage Publications

Wells, Alan (1970) . London, Heinemann

Veblen, Thorstein B (1909) "The Limitations of Marginal Utility". , no. 9 (November): 620-36

Veblen, Thorstein B (1899) New York, Macmillan

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