Chief justice Raymond Zondo has made wide ranging recommendations on improving accountability in parliament after concluding that parliament’s failure to hold the executive to account contributed to the state capture project.
Zondo interrogated the work of several committees including the portfolio committees on public enterprises, home affairs and mineral resources and their inability to ask the required questions and propensity to even actively seek to protect some ministers who appeared before them.
He particularly pointed a finger at the ANC which, he says, through its statements and conference resolutions encouraged vigorous parliamentary oversight, but their conduct in practice was completely different.
Zondo said widely publicised allegations of state capture came to a head in early 2016, but the ANC was unwilling to support requests by opposition parties for a portfolio committee or an ad hoc committee to inquire into these allegations.
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Some of the practices that undermined oversight included that ministers frequently attended ANC study group meetings which precede portfolio committee meetings.
There is evidence that a minister colluded in such a meeting to frustrate proper oversight by a portfolio committee.
Even where the will to oversee the executive existed, parliamentary oversight has too often proved to be ineffective.
He concluded, for example, that the joint standing committee on intelligence appears prima facie to have failed to ensure that adequate and timeous steps were taken to address apparently criminal conduct within the intelligence services which had been drawn to its attention.
Zondo said it was unacceptable for a minister or fellow party members to castigate a member of parliament for attempting to hold a minister to account, or for asking difficult questions of persons regarded as comrades or deployees of the same party.
In comments that particularly relate to the ANC, he said it was inappropriate for a party caucus to resolve not to permit, or to discourage, conduct amounting to legitimate parliamentary oversight over the executive.
Zondo recommended that to facilitate proper oversight over the executive, leaders of political parties should provide the political space for individual MPs to ask difficult questions without prejudice to themselves, with the assurance that their concerns will be taken seriously and properly answered.
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In a recommendation that touches on the current electoral reform process, Zondo said parliament should consider whether introducing a constituency-based (but still proportionally representative) electoral system would enhance the capacity of members of parliament to hold the executive accountable.
“If parliament considers that introducing a constituency-based system would have this advantage, it is recommended that it should consider whether, when weighed against any possible disadvantages, this advantage justifies amending the existing electoral system.”
To encourage free oversight, Zondo also recommended that parliament should consider whether it would be desirable to enact legislation which protects members of parliament from losing their party membership (and therefore their seats in parliament) merely for exercising their oversight duties reasonably and in good faith.
“The commission is of the view that consideration should be given by parliament to amendments to its own rules, with a view to addressing the problem of ministers who fail to report back to parliament on what, if anything, has been done in respect of remedial measures proposed by parliament or on alternative methods preferred by them to address defective performance highlighted by parliament.”
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One of the primary practical problems to which various witnesses drew attention, was the absence of any parliamentary system to “track and monitor” implementation or non-implementation by the executive of corrective action proposed in reports adopted by parliament.
Zondo therefore recommended that parliament implement a system to “track and monitor” implementation (or non-implementation) by the executive of corrective action proposed in reports adopted by parliament.
“It is recommended that parliament needs to make clear that non-attendance by ministers and others scheduled to attend portfolio committee meetings will not be tolerated and to ensure that consequences are visited on those who offend without adequate cause. (parliament should consider whether there is a need to legislate on this issue).”
He further proposed that parliament should consider whether more representatives of opposition parties should be appointed as chairs of portfolio committees.
In order to keep a close watch on the presidency, he recommended that parliament should consider whether it would be desirable for it to establish a committee whose function is, or includes, oversight over acts or omissions by the president and presidency, which are not overseen by existing portfolio committees.