Presidential question time as prescribed by the Rules of the National Assembly (the Rules) has, in principle, been inadequate (as was previously pointed out by the Centre for Constitutional Rights in a submission to Parliament). However, following a recent spirited engagement by the Economic Freedom Fighters (the EFF) during which they disrupted parliamentary proceedings by chanting “pay back the money” at President Zuma over the Nkandla upgrades during question time, all that remains of question time is rhetoric and rumour. According to reports, the Deputy President even allegedly advanced an argument suggesting that the relationship between the President and the National Assembly was no longer good enough for him to answer any oral questions.

Be that as it may, in terms of Rule 111(1)(a) of the Rules, question days for the President have to be scheduled only once per parliamentary term. As Pierre de Vos, however, pointed out, the word “term” should not be interpreted as having the same meaning as in section 49(1) of the Constitution – which provides that the National Assembly is elected for a term of five years. That would “render many of the rules incomprehensible and absurd” and would also mean that the President would have to answer oral questions in the National Assembly only once every five years. This, De Vos accurately asserted, “would clearly be in conflict with section 55(2) of the Constitution“. Such an interpretation will also be in conflict with the foundational values of accountable, responsive and open government, as well as the President’s and his Cabinet’s duty to provide Parliament with full and regular reports.

Even when the word “term” is understood as to mean an annual parliamentary session (as has been the interpretation by Parliament), question days for the President have to be scheduled only four times per year. Questions are, in terms of Rule 111(1)(b), limited to matters of “national and international importance” (all other questions must, in terms of Rule 111(2), be directed to the Deputy President or the Minister in the Presidency) and must, according to Rule 111(3), be submitted at least 16 days before the question day.

However, even this is unsatisfactory:

From all this it can safely be contended that the rules providing for oral questions to the President are wholly insufficient if measured against constitutional requirements.

Section 1 of the Constitution enshrines a multi-party system of democratic government that must result in “accountability, responsiveness and openness“. This, in principle, means that the Government, its officials and its institutions must be able to explain and justify their decisions, actions and laws to the people; respond to and be accessible to the people; and conduct their business of governance in an open and transparent manner.

In addition, section 42(3), determines that the National Assembly must scrutinise and oversee the executive and must, in terms of Section 55(2)(a), “provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it.” The National Assembly must also, in terms of section 55(2)(b), “maintain oversight of the exercise of national executive authority, the implementation of legislation and any organ of state“.

Moreover, sections 92(2) and (3), determine that members of the Cabinet (comprising the President as head of the Cabinet, a Deputy President and Ministers), are “accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions“. As such, “members of the Cabinet must… provide Parliament with full and regular reports concerning matters under their control“.

Section 57 of the Constitution empowers the National Assembly to determine its own internal arrangements, proceedings, procedures, rules and orders concerning its business. However, the Constitutional Court in Oriani-Ambrosini v Sisulu, held that section 57 must be interpreted to mean that the National Assembly was not at liberty to impose substantive or content-based limitations on the constitutional duties or powers of its members, but at best, to adopt rules that were procedural in nature. This means that the Rules must, with due regard to constitutional values, powers and responsibilities, provide for an effective oversight mechanism to ensure that the President fully and regularly reports to Parliament on matters under his control.

Parliament on its website rightfully proclaims that the true test of democracy is “the extent to which Parliament can ensure that government remains answerable to the people“. Accordingly, it describes its duties as to “detect and prevent abuse of power and illegal or unconstitutional conduct by the National Executive; protect the rights and liberties of citizens and hold the Government answerable for how tax money is spent; and make government operations more transparent in order to increase public trust in the Government“. On Nkandla and the scrutiny of irregular expenditure involving the President’s private residence alone, Parliament is arguably failing to live up to every one of their stated objectives.

The Rules in their current design, instead of allowing for a platform for effective oversight of the National Executive, restrict the National Assembly – and especially opposition parties – from effectively fulfilling their oversight function. Unlike the governing party may want to believe, the Constitutional Court in the Oriani-Ambrosini case fittingly observed that this oversight responsibility is “a collective responsibility of both the majority and minority parties and their individual members to deliberate critically and seriously on legislative proposals and other matters of national importance“.

Accordingly, the Rules must, in giving effect to the letter and spirit of the Constitution, provide for a proper Questions to the President session on at least a monthly basis, if not twice a month. The Rules should also provide for a set number of questions regarding any subject from Members of the National Assembly, addressed to the President in the House without prior notice. The Rules should also allow for proper interpellation and supplementary questions.

Meanwhile, for questioning the President too loudly, too persistently and perhaps too abrasively, members representing the EFF in the National Assembly will be opposing their suspension from the House in the High Court. At the same time, the President must still provide satisfactory answers to a growing number of questions that the representatives of the electorate would like put to him in Parliament – as they have an unquestionable right to do in terms of our Constitution.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

For comment on statement:
Adv Johan Kruger: Director, Centre for Constitutional Rights
Phone: 27 21 (0) 930 3622

Megan Dick: Communications Officer, FW de Klerk Foundation
Phone: 27 21 (0) 930 3622

 Photo credit: GovernmentZA / Foter / CC BY-ND