These well-reported trends – whether real or perceived – include:
- An apparent growing tendency by the Speaker and other presiding officers to act in a way that seriously questions their ability to preside over the House and its committees in an objective manner;
- A failure by the National Assembly and its Committees to effectively scrutinise executive conduct and to call the Executive to account on various matters ranging from misappropriation as reported on by the Auditor-General, maladministration as reported on by the Public Protector, and human rights violations as reported on by the South African Human Rights Commission (SAHRC);
- A general failure by the National Assembly to debate matters of constitutional importance and public concern;
- A growing failure by the Executive – including the President – to be subjected to and to respect Parliament’s oversight function, including the duty to appear in the House and before Committees to answer questions and explain their conduct and decisions; and
- An alarming development that involves the Executive intervening in matters relating to Parliament and the functioning of the National Assembly – in clear violation of the Constitution and the principle of the separation of powers.
Parliament – and its National Assembly in particular – is a cornerstone of our multi-party system of democratic government. As such, the National Assembly, in terms of section 42(3) of the Constitution, is elected to represent the people and to ensure accountable, responsive and open government by the people under the Constitution. It does so, amongst other actions, by providing “a national forum for public consideration of issues” and by “scrutinising and overseeing executive action”. Accordingly, the National Assembly must, in principle – and at the very least – debate matters of national concern and must ensure that the Executive remains accountable to it. In turn, the Executive must respect Parliament and subject itself to Parliament’s oversight powers.
In order for the National Assembly to be a forum for debate and for it to exercise its oversight powers as required by the Constitution, Cabinet members, Deputy Ministers and members of the National Assembly have, in terms of section 58, freedom of speech in the Assembly and in its Committees (subject to its rules and orders). As such, they are, in principle, “not liable to civil or criminal proceedings, arrest, imprisonment or damages for… anything that they have said in, produced before or submitted to the Assembly or any of its committees; or anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.”
However, a recent intervention by the Public Order Policing Unit of the South African Police Service (the SAPS) saw members of that Unit entering the House and removing a member of the Economic Freedom Fighters (the EFF) and manhandling members of the formal opposition, the Democratic Alliance (the DA). This action was taken, apparently either at the request of the Speaker, or at the very least, with her consent. This latest occurrence comes in the wake of a media conference held earlier this year by security cluster ministers, during which Minister of Defence, Nosiviwe Mapisa-Nqakula, said in relation to the National Assembly, that “certain measures by the security cluster have been put in place with immediate effect to ensure that …the state shall not be undermined, neither will the authority of Parliament be undermined”.
Also, Parliament must, in principle, do its work and hold its sittings and those of its Committees in an open manner. As such, the National Assembly may not exclude the public, including the media, from its sittings, or from Committee meetings unless it is reasonable and justifiable to do so in an open and democratic society. Nonetheless, for a second time in as many months, a live feed to the parliamentary television channel was cut apparently because the Speaker’s rulings were being challenged by opposition parties.
The selective manner in which the Speaker and the Executive are using the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act and the rules and customs of the National Assembly, apparently in order to stifle proper debate and effective oversight, is highly concerning. Moreover, the majoritarian mentality being exhibited by the governing party in the National Assembly, and the manner in which procedures of Parliament are apparently being manipulated in order to protect the Executive, are tremendously damaging to the credibility of Parliament, our multi-party system of democratic government and the notion of constitutional democracy.
By Adv Johan Kruger, Director: Centre for Constitutional Rights