After the dizzying and all-consuming election cycle, MPs head back to Parliament next week for the third term. This session runs for 8 weeks and will be packed with activities. Some of the highlights include committee, oversight and legislative work.
In this preview we unpack some of the issues that will occupy the legislature with one proviso: all of what follows can be overshadowed and overtaken by unscheduled debates, statements and events.
Important Appointments to note
The race to replace Thuli Madonsela, current Public Protector, will be one of the major stories of the new term. This week, an ad hoc multi-party committee, interviewed 14 candidates for the post. The process has been unprecedented in many ways: the huge public interest (resulting in the live screening of all interviews), the CVs of the candidates were published, the public could raise objections and the interviews lasted an uninterrupted 20 hours. The eventual nominee of the committee must be approved by 60% of MPs in the National Assembly. The ANC, as the majority party, should have little trouble pushing its candidate through as it holds 62% of the votes in the National Assembly. Notwithstanding this, an unpopular appointment will create uproar and might spark legal challenges.
Parliament was unable to push through several appointments in the previous term for a variety of reasons and these will be revisited in the new term. First, the opposition presented a united front and engineered a defeat for the governing party by blocking its candidate for Inspector-General of Intelligence. This is a crucial watchdog role to ensure that the rule of law is upheld and that the rights of South Africans are protected against abuse of power by the intelligence services. The position has been vacant for more than a year. It will be interesting to see if the new Intelligence committee chairperson tasked to fill the post, former Cabinet Minister and diplomat Charles Nqakula, will do better than his predecessor.
Second, Parliament was unable to appoint the chosen 5 candidates to fill the positions of the newly-formed Information Regulator, which includes Pansy Tlakula as chair. During a vote in the National Assembly, only 198 MPs voted in favour of appointing Tlakula and the board, while 59 voted against it. 201 Members had to vote in favour for the appointments to be approved by the National Assembly and sent to the President. A new vote is expected to take place early in the new term and the recommended candidates are likely to be approved.
Third, the process to appoint the new National Youth Development Agency (NYDA) board has been riddled with problems and procedural delays. The three-year term of the outgoing NYDA board ended in March 2016 and pressure is mounting on Parliament to make the appointments for the new board.
The Portfolio Committee on Justice and Correctional Services has invited nominations from individuals, organisations, institutions and civil society for five suitable persons to be appointed as Commissioners to the SAHRC. Interestingly, the Public Protector Process has set a new precedent for public involvement, and has not limited it to mere nomination. Parliament has stated it will publish a list of applications/nominations and CVs received may be published in order to allow members of the public to comment on the suitability of candidates.
MPs are expected to do some heavy legislative lifting this term as there are 33 bills currently before the legislature.
Some bills interrupted by the constituency break will resume their path to becoming law. The major ones include the Higher Education Amendment Bill, Films and Publication Amendment Bill, Mineral and Petroleum Resources Development Amendment Bill, and the Financial Sector Regulation Bill (also known as the Twin Peaks Bill).
Other leftover bills, cover an array of issues, including whistle blowing, plants and forests, border management, unemployment insurance, public service, immigration, land tenure, foreign service and liquor products.
ACDP MP Cheryllyn Dudley’s private member’s bill - the Labour Laws Amendment Bill, which aims to provide parental, adoption and commissioning parental leave for employees – is due for a round of public hearings. Unusually for a private member’s bill, the Committee agreed that it was desirable to proceed with and agreed to consult wider and assess the impact of the Bill. So far there appears to be general support but its fate is unclear.
President Jacob Zuma has asked Parliament to advise him on the process it followed in passing the Expropriation Bill. According to the Presidency, it had received petitions that raised a number of procedural issues which included: (i) the procedures followed by the National Council of Provinces (NCOP) and some provincial legislatures in passing the Bill were inconsistent with the Constitution; (ii) the NCOP failed to facilitate sufficient consultation with the public prior to the adoption of the Bill and (iii) the Bill was not referred to the National House of Traditional Leaders as required in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act.
Worryingly, the President has also referred the Performing Animals Protection Bill back to Parliament for reconsideration. In his view, the NCOP failed to follow the procedure outlined in section 75(2) of the Constitution and Rule 61 of the NCOP’s Rules during the voting on the Bill which suggests there was not the required quorum of one third of NCOP members. The Constitutional Court declared the Land Restitution Amendment Act invalid because the national legislature failed to follow proper consultation. All of this paints a worrying broader picture and raises questions about whether Parliament is appropriately considering and processing legislation. It also raises questions of capacitating the body well to ensure it has the technical support to meet its mandate.
In addition to that, a multi-party ad hoc committee is expected to begin its work in reviewing the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act to take account of the Constitutional Court judgment on the use of security services in the house.
In anticipation of the budget review process, lawmakers will undertake a review of the Money Bills Amendment Procedure and Related Matters Act, which gives Parliament the power to amend the budget and other money bills presented to it. The committee will look into the time frames and sequencing associated with the different financial instruments and bills, and the parliamentary procedures related to them.
The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change is starting its series of public hearings on laws passed since our first non-racial democratic election in 1994. The Northern Cape will get its opportunity on 20 and 21 September 2016. The remaining provinces will be covered in the final term and next year.
There are also some internal matters to be resolved, among them the replacement of the long-serving Registrar of Members Interests who retired during the recess break. The industrial action over performance bonuses is also likely to feature heavily this term. It began late last year when workers went on strike and accused Parliament of reneging on a past agreement for performance bonuses to be paid based on the annual package of employees. Since then, there has been accusations and counter accusations, suspensions, disciplinary hearings and threats of legal action. All of this has created a tense atmosphere and raises the spectre of further industrial action. This would be hugely detrimental to Parliament if this were to happen as it has already lost so much time due to an unusually long break for local government elections.
Disruptions, adjournments and delays to proceedings have become a common feature of the Fifth Parliament. Politicking usually trumps everything else on the floor of the House. After a strong showing in the local elections, there is every possibility that the opposition will be emboldened resulting in more disruptions. The revised rules of the National Assembly were finally adopted at the end of the last term after a four-year process. Some of the new provisions will help to improve oversight, for example, the introduction of mini-plenaries to create more platforms for debate, oral questions to the Executive lasting three hours instead of two. That being said, the EFF, in particular, has been successful at identifying gaps in the rules, pointing out inconsistencies in their application and does not support all the changes. It will be an interesting test of nerve for the presiding officers and other role players if the EFF (or any other party) decides to test the new rules. In another Court ruling against Parliament, it was found that the Joint Standing Committee on Ethics and Members' Interest had “flagrantly disregarded the Constitution, fundamental rules of procedural justice and the code of ethics of MPs” in a matter involving the DA. Some introspection is needed.
Committees are arguably the most important feature of the parliamentary architecture. They provide lawmakers a unique opportunity to hear directly from experts, organisations and individuals who may be interested in or affected by a particular issue. In the upcoming term, committees will deal with some serious and pressing issues, including the national minimum wage, SABC, performance of other SOEs, the economy, women’s rights, higher education fees, national gambling policy, white paper on policing, decriminalisation of sex work and nuclear build programme to name a few.
Based on previous years, the Joint Standing Committee on Ethics and Members' Interest is likely to meet and set a date for MPs to declare their 2016 financial disclosures. This information is then published approximately 2 months afterwards. The Joint Constitutional Review is likely to schedule hearings to hear submissions from the public on specific sections of the Constitution that they feel need to be reviewed. In terms of Section 45(1)(c) of the Constitution, the Committee must review the Constitution annually. Equal Education and the Equal Education Law Centre has recommended amendments to Section 100 of the Constitution. The aim of the proposed amendments is to remedy gaps which may contribute to failures in the implementation and monitoring of a Section 100 intervention.
It's going to be an intense and consuming term. We will continue to keep you informed about what is happening.
Due to the amount of time lost, there is no easing in and a number of meetings have been scheduled in the committee corridor.
Check this link to find out what is in store for Week One.