The problem with Parliament

By Trevor Manuel

In the week Parliament fell into a chaos of #paybackthemoney, it’s a good idea to read this former minister’s ideas on how to fix it (note: it’s not about heckling, eviction or chanting)

While we have myriad democratic institutions that all play a role in supporting good governance. The role of Parliament (the legislators), and the relationships between Parliament and citizens, and Parliament and the executive, are fundamental to achieving the human rights objectives in our Constitution.

The relevant debate today involves the quality of our democratic project. There is no doubt the Constitution provides a strong basis for democracy. It articulates the rights, expectations and duties of both citizens and the state, and makes provision for a range of

checks and balances. Too often, we attempt to abstract rights and liberties, and the checks – such as the chapter 9 institutions – only to ignore the entire mechanics of what produces a democratic impact in the lives of ordinary citizens.

So when the people have chosen, as we have recently done in the general elections, and we have a Constitution as strong and articulate as ours, what happens then?

The International Institute for Democracy and Electoral Assistance (Idea) recently published a paper titled Assessing the Quality of Democracy, in which it presents five key principles to be considered when assessing democracy:

. Democratisation is a process that requires time and patience;

. Democracy is not achieved through elections alone;

. Democratic practices can be compared, but not prescribed;

. Democracy is built from within societies; and

. Democracy cannot be imported or exported, but can be supported.

Our focus must be on the development of an indigenous South African democracy, born of our circumstances and built continually by all of us to achieve what we define as “human rights” in our Constitution.

The paper describes the principles that guide the assessment of democracy as being “popular control over decision makers and political equality of those who exercise that control”. Within the model that we have chosen, there are peculiar South African challenges.

The first of these, important in the context of “popular control over decision makers”, is our electoral system. In his last address to Parliament in 1999, President Nelson Mandela alluded to this issue when he said: “Because the people of South Africa … chose a profoundly legal path to their revolution, those who frame and enact the Constitution and laws are in the vanguard of the fight for change.

“It is in the legislatures that the instruments have been fashioned to create a better life for all. It is here that oversight of government has been exercised. It is here that our society, in all its formations, has had an opportunity to influence policy and its implementation.”

Then he raised the all-critical question of that popular control when he said: “We do need to ask whether we need to re-examine our electoral system, so as to improve on the nature of our relationship as public representatives with the voters.”

Mandela’s speech raises two specific relationships as regards our legislators. The first is to the people of South Africa and the second is to the executive, which they are required to have oversight over. In “fashioning the instruments”, legislators also pass the laws that give effect to our Constitution that put in train the means of implementation. In this process of passing laws, non-legislators play a crucial role. Does our current electoral system enable the fulfilment of these multiple relationships and roles?

It is in the maturing of our Constitution that we understand very clearly that, as Christopher Caldwell argues, “democracy is not a synonym for good government”.

The key responsibility is to evaluate how all aspects of government interact. We frequently tend to overlook the important role of the executive in shaping policy and overseeing its implementation.

Against the Bill of Rights, the Constitution also requires that the state establishes security services and articulates their responsibilities in the context of sovereignty.

It is important to recognise that as and when policies are adopted, there are no absolutes. All of the mandates drawn from the Constitution need to coexist to ensure the overall quality of democracy is implemented. As it happens, this quarter of the parliamentary calendar is devoted precisely to that task.

In respect of all functions, the question is whether the provisions are adequate, “within available resources”, and within each line function whether the selection of programmes and the metrics for implementation are adequate. This is what the departmental budget debates ought to be about. Perhaps we have allowed this important annual period of accountability to be debased.

Parliament has become a sausage machine, operating with a single objective – that every vote has been debated, however superficially, so that Parliament can vote on the entire budget as quickly as possible.

It is literally impossible to follow the debates, by department, or to enquire whether there is an overall commitment to produce measurable outputs from the application of available resources, as distinct from promises of new initiatives. Similarly, it is not possible to place all of these commitments side by side and answer whether, on the basis of these decisions, the democratic project is on track.

I should point out that this is not a problem of the fifth Parliament. The slide has been steady and continuous. But this year, it appears exponential because of the time pressures created by the elections.

We have no choice but to place this key interface between the executive and the legislature on the table for thorough re-examination and urgent action. Optimally, the budget vote debates should inform the public on whether we are any closer to realising the commitments framed in our Constitution.

Let’s refer to section 27. How many South Africans used the health system in the past year? For what purpose? Are we any closer to bridging the quality gap between private and public healthcare provision? Have we defined what “sufficient food and water” means? Are we any closer to ensuring such sufficiency than we were last year? And what are the plans to accelerate provision over the next three years, and the next 12 months in particular? To put it more generally, are we progressively realising all the rights enshrined in the Constitution?

Parliament is the final arbiter. There is no “democracy inspector” sitting outside Parliament assessing whether it discharges its mandate in the letter and spirit of the Constitution. So how do we know whether the “bucket-loads of information” contain the detail and the metrics that will be found useful? Who evaluates? Who cares?

Within the mechanics of our constitutional order, Parliament also has a role as the legislature. In the past, too many pieces of legislation have been returned from the Constitutional Court as being noncompliant.

There are also instances where the opinion of the Constitutional Court is canvassed before the president assents to a piece of legislation. Furthermore, there is a great unevenness in the quality of legislative crafting.

The Public Protector Act has a curious crafting at clause 9, which was amended in 2003 to read: “No person shall insult the Public Protector or the Deputy Public Protector.” No such provision exists for the president, the Speaker of the National Assembly or the chief justice.

We must also discharge views on the second aspect in the Idea paper: “Political equality of those who exercise control” over decision makers. We have an obligation to ensure that discussions about law, rights, the strength of our democracy and the quality of life of our people neither become nor remain the preserve of a small elite.

In South Africa, the impact of inequality is far more profound. The real challenge here is that there is a perception that income taxes are borne disproportionately by wealthier people. Yet they opt out of public services such as education, healthcare and even policing. So the sense that there is no value for money for taxes paid is an additional catalyst for tax avoidance.

Yet these are the classes that chatter. People who believe that their rights are undermined by the extension of services to the majority happen to be those with voice. We need to factor this in to our own appreciation of that important principle articulated in the Idea paper that speaks of “political equality of those who exercise control” over decision makers. These issues are important in understanding Caldwell’s statement.

It bears repeating that the preamble to our Constitution sets the goals for good governance. In particular, the subclause that speaks of the need to “improve the quality of life of all citizens and free the potential of each person”. The challenge to develop policies appropriate to this mandate, the need to allocate appropriate resources to provide the services that improve the quality of life and the oversight to ensure measurements are in place to ensure progress is traceable, together describe good governance.

The overemphasis on chapter 9 institutions is most unfortunate. The Holy Grail of governance will be attained when these institutions are to the national body politic what the immune system is to the human body – generally out of sight, but working hard and screaming loudly only when a person is ill or disease-ridden. But that should not detract from the imperative of good governance.

There are a series of questions we must grapple with to better understand the challenge of good governance. Do we know what our common purpose is? How do we define common purpose in a society as grotesquely unequal as ours? Is good governance possible in the absence of the essential threads that bind societies – the intangibles such as trust and hope?

And what of power? Should this be an impolite topic whispered about in dark corners, or do we need to recognise that it will remain at the epicentre of politics? It needs to be understood, permitted and checked. Appreciating this is also an essential dimension of good governance.

Obviously we cannot outsource the responsibility for the re-establishment of the sense of good governance to either outside agencies or elected representatives. The challenge is that all of us need to be involved in the process of continual building, and of asking the tough questions. Yet we must continue to ensure our public representatives are competent.

Author Tony Judt raises the following as a general observation on the building of good societies: “The moral impulse is unimpeachable. But republics and democracies exist only by virtue of the engagement of their citizens in the management of public affairs. If active or concerned citizens forfeit politics, they abandon their society to its most mediocre and venal public servants.”

Ours is a young republic, and ought to be the most aspirational. The key issue is why good men and women appear to disengage. In our parlance, the message is clear: “Unzima lomtwhalo; sifuna simanyane.” (The load is heavy; we must unite.)

This is an edited version of Manuel’s lecture at the annual Kader Asmal Human Rights Awards in Cape Town.

This article was featured in City Press - 24 August 2014.