Parliamentary Watch

Dysfunctional parliament causes threat to judiciary

Parliament became dysfunctional
Disrupted parliament.jpg

The fact that the South African parliament has become dysfunctional in a number of respects is probably the main cause for the growing onslaught by government and the ANC-led political alliance on the judiciary.

In a recent statement after a roundtable discussion on parliament the Council for the Advancement of the South African Constitution (CASAC) warns that “the effect that a dysfunctional parliament will have on various other institutions and democratic processes generally should not be underestimated”.

Discussions at the occasion, among others, focused on the “courts being drawn into the quagmire of dysfunctional politics, the ‘judicialisation’ of political discourse, and the failure of parliament to resolve its internal issues. Litigation is sometimes employed as an alternative to seeking viable political solutions.

“This has the effect of not only rendering parliament irrelevant, but weakens the courts by involving them in matters perceived to be outside their jurisdiction,” it was stated.

CASAC ascribes the core problem to a “trust-deficit” between the political parties represented in parliament that led to them being overzealous and combative in their dealings with one another. Rigorous debate on substantive issues is often eschewed for political skirmishes over procedural and ‘rule-based’ issues.

It diagnosed the current crisis confronting parliament as primarily a political problem with constitutional undertones, rather than a legal one. However, the constitutional framework, particularly in relation to the separation of powers, is important to contextualising and understanding the political impasse.

It also points out that practices, conventions and implicit agreements among parties have not yet matured in the South African parliament to enable parties to use them to overcome obstacles.

Under the country’s constitutional dispensation and its accompanying voting system, the majority party rules both the executive and the legislature, and “means need to be found to manage the power of the majority whilst respecting the rights of smaller parties,” it is stated.

It also warns that parties need to consider that conflict in parliament may have unintended consequences in terms of social conflict, especially during election times and pursue a strategy of political risk mitigation by modifying their behaviour.

Concern was also expressed about the diminished stature of parliament, especially in relation to the executive with its repeated encroachments in parliamentary processes in recent times.

This diminished the stature of parliament, as illustrated by events surrounding the speaker, while parliament needs to demonstrate its authority as “an equal, distinct and independent arm of the state alongside the executive and the judiciary”.

One of the outcomes of parliament not succeeding in facilitating robust debate is that the courts are being used as a surrogate political platform. This is in the face of the majority party’s effective merger of parliament and the executive into a single seamless arm of government, making a mockery of the principle of the separation of powers.

Constituency offices

CASAC also called for a review of the about 350 so-called “constituency offices” around the country, funded to the tune of R250 million per annum by parliament. At present these facilities are used as party offices rather than parliamentary offices through which citizens can meaningfully engage with the institution.

An Afrobarometer study found that only 3% of South Africans could name their local MP and just 1% of about 3 000 respondents to a News24 survey knew who their local MP was.

In August last year The Citizen reported that three months after the elections, the ANC was still allocating constituencies and some MPs spent a week that was meant to be used for constituency work at by-elections instead.

There’s no requirement under parliament’s current policy for political parties to ensure that every part of the country has access to an office where citizens can ask for help on legislation or problems they have with government. The location of these offices is left entirely up to political parties.

The Parliamentary Monitoring Group’s new website, called The People’s Assembly, contains information about each MP’s constituency office as well as a feedback form for citizens. Yet its executive director, Gaile Fullard, said it was “terribly difficult” to get parties’ constituency information, “which is crazy as this should be openly available to the electorate,” it was reported.

In a Let’s Think column in January this year we reported about the virtual impossibility of tracking down an elected representative to take ownership of a problem a voter had with the provincial department of education.

Voting system

In that same column we blamed the situation on the purely proportional elective system that uses a closed party candidates list, and pleaded that the 2003 report by the Electoral Task Team under chairmanship of the late Dr Frederik van Zyl Slabbert “should be dusted off again”.

The reforms essentially suggested a system of a majority of multi-member constituencies, supplemented by 25% of the members from a proportional party-based list. It is a system akin to the one operating in Germany.

Reacting to the CASAC statement in an article last week, the executive director of the FW de Klerk Foundation, Dave Steward, wrote that the foundation shared CASAC’s concerns on the functioning of parliament.

He argued that the core problem with parliament was that “… because of our proportional representation system (our emphasis) they (members of parliament) are actually accountable to their party’s political bosses, rather than to the electorate”.

This, combined with the fact that members of the National Assembly lose that membership if they cease to be members of the party on whose list they were elected, gives political bosses “enormous control” over their ability to hold the Executive to account.

“Any member of the National Assembly who fearlessly tries to scrutinise or oversee the actions of the Executive would, in all likelihood, soon find him- or herself without a job,” he writes and also punts for the introduction of the reforms suggested by the Van Zyl Slabbert report.

While some constitutional reforms are clearly needed in a spirit of treating the 1996 constitution as a living document, they should be treated carefully and in context of how the country arrived at the present system.

Some history

South Africa’s first democratic election of 1994 was in the first instance for a Constitutional Assembly to negotiate a final constitution which would also act as an interim or transitional parliament. It was just not practical or necessary to at that stage attempt to first delimit constituencies.

It would be fair to say, also from personal experience, that the size of the ANC alliance’s majority (62.5%) in that election spooked the minority parties and made them afraid that a constituency-based system would wipe them out. After that, talk of a combined system, as we reported before, became a taboo inside the then National Party (NP) for one.

It is also true that the so-called “floor-crossing” clause in the constitution was originally introduced in 2002 to accommodate the merger of the then Democratic Party and NP into the new Democratic Alliance. After much controversy it was again scrapped in 2009.

That the possibility of floor crossing in practice works in favour of bigger parties, and especially the majority party, which is in the position to reward MPs with higher-level positions, is illustrated by the statistics of such crossings between 2003 and 2007.

The ANC made the biggest gain with 27 members crossing to it, the DA made a net gain of five members and the Inkatha Freedom party became the biggest loser with eight members departing.

With increasing strains inside the ANC alliance, new political forces coming to the fore and the proportional voting system facilitative to it, the possibility of coalition politics in the not too distant future is improving. That might also deliver a political environment more conducive to constitutional reform.

by Piet Coetzer

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