REPORT OF JOINT AD HOC SUB-COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY

1. REPORT OF JOINT AD HOC SUB-COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY

2. OUR TASK To consider the report of the consultants and to submit findings to the Joint Rules Committee (JRC)

3. APPROACH • The Report of the sub-committee documents the discussions & conclusions of the sub-committee on every chapter of the consultants’ report. • PRACTICALLY ORIENTATED ELABORATION • Discussions between members • Inviting submissions • Further research LIMITATIONS • Highlight areas requiring attention particularly where consultants’ report lacked consultation and empirical data.

4. NOTE: It should be noted at this juncture that the sub-committee dealt with both Houses of Parliament simultaneously and that all of its recommendations apply equally to both Houses unless expressly stated.

5. Summary of the Sub-Committee’s Report with specific reference to its Recommendations Chapter: Accountability, Oversight & the Constitutional Imperative The Role of the National Assembly Synopsis • The Chapter of the consultants’ report deals with the constitutional provisions relating to Oversight in particular with clause 55 (2). • The concept of ministerial responsibility. • A comparative study is done on the role of the public service in countries like the UK, Canada, and Australia. • An explanation is given of the term “other organs of state”.

6. Accountability, Oversight and the Constitutional Imperative (contd) Discussions of the sub-committee • This chapter does not adequately deal with all of the constitutional provisions relating to oversight. • Necessary to develop an understanding of the entire Oversight Theme in the Constitution.

7. Accountability, Oversight & the Constitution Imperative (contd) The Constitution of the Republic of South Africa 1996Section 199 (8)“To give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament”.

8. Accountability, Oversight & the Constitution Imperative (contd) Section 238 “An executive organ of state in any sphere of government may- • delegate any function that is to be performed in term s of legislation to any other executive organ of state provided that the delegation is consistent with the legislation in terms of which the function is performed; • Perform any function for any other organ of state on an agency or delegation basis.”

9. Accountability, Oversight & the Constitutional Imperative (contd) Section 231 • “The negotiating and signing of all international agreements is the responsibility of the national executive. • An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).

10. Accountability, Oversight & the Constitutional Imperative (contd) Other important constitutional provisions • Ministerial accountability • Intervention mechanisms • “Super entrenched” clause The Interim & Final Constitutions A comparison between the Interim Constitution and the 1996 Constitution would further provide insight into the manner in which issues of oversight had been tweaked during the two phases of our constitutional evolution.

11. Accountability, Oversight & the Constitutional Imperative (contd) Conclusion • Understanding the full landscape of oversight provisions together with developing a full appreciation of the spirit & values of the Constitution, is essential. • Need to develop this understanding both within and without Parliament.

12. Accountability, Oversight & the Constitutional Imperative (contd) Recommendations • Parliament through the Rules Committee compiles a document “landscaping” the Constitutional provisions relating to the inter-relating themes of Oversight, Accountability, Transparency and Responsiveness, and outlining international trends. Such a document should also include inputs from key Constitutional negotiators either in the form of commissioned research or essays or (preferably) both. • Following the tabling of the abovementioned document debates, workshop and discussions should be programmed and organised within Parliament, first among MPs themselves, and then later on expanded to include other stakeholders. These debates and discussion should have as their objective the development of a broad understanding of the Oversight Role and Function of Parliament within our Constitutional democracy.

13. Chapter: The Oversight of the NCOP Synopsis The consultants’ approach in regard to the NCOP is captured in the following paragraph: “ we see oversight in relation to the NCOP as covering the implementation of legislation & the monitoring of inter governmental relations. The oversight role of the NCOP is however limited in that it is restricted to matters concerning local & provincial government as well as national government where this impacts on provincial & local matters _ _ _ And further: “ As a general rule the national executive and organs of state in the national sphere ought to report and account to the National Assembly and its committees only. There are exceptions to this for eg. Financial and Fiscal Commission . . . The National Assembly however remains primarily responsible for oversight of the National Executive….” (p 22 of consultants’ report)

14. The Oversight Role of the NCOP (contd) Deliberations of the sub-committee Omissions • Noted that consultants’ report lacks an assessment and evaluation of existing oversight mechanisms. • Division of Revenue • S 154(1) of the Constitution of the Republic of South Africa“The National and provincial governments by legislative and other measures must support and strengthen the capacity of municipalities to manage their own affairs to exercise their powers and to perform their functions.”

15. Oversight Role of the NCOP (contd) Premise of the consultants that there be no overlap of oversight function between the Houses and that the NCOP oversight role is limited, = too starkInstead: • Oversight responsibility rests with Parliament. • Each House has specific orientation and specific oversight objectives. • Areas of convergence arise in matters of concurrent powers. • Areas of specific focus defy strict categorization. • Duplication of oversight work does not necessarily translate intoduplication of corrective action.

16. Oversight Role of the NCOP (contd) • Parliament itself requires some co-operative ethic whereby there is not any duplication but in fact a complimentary role, played by each House in regard to the other. The sub-committee was of the view that there be a more formal relationship creative between committees in the two Houses so that any oversight work in formally co-ordinated to achieve a complimentary result. • The lack of a formal communication structure between committees of the two Houses was noted.

17. Oversight Role of the NCOP (contd) Recommendations The sub-committee recommends that: 2.1 The JRC initiate a process aimed at drafting guidelines for portfolio and select committees to allow for joint planning of oversight work. 2.2 A process should be initiated to establish protocols to ensure structured communication between committees through streamlining of the committee section, which would allow for more effective and formal communication between committees of both Houses that embark on mutual interest oversight work and briefing sessions.

18. Building Parliament’s Institutional Oversight Capacity General Building the Institutional oversight capabilities of Parliament is a process that will extend well into the next few Parliamentary terms. Recommendation 1.1 The JRC begins a process aimed at producing a long term institutional Vision and Mission Statement aimed at building Parliament’s oversight capabilities through adequate resourcing and capacity building in committees, Constituency Offices and within Parliament’s administrative support structures – in particular the Committee section where a record-keeping system, and tracking mechanisms are required to be established. 1.2 Parliament adopts a policy requiring each new Parliament to assess and review its oversight capabilities at least once during its five-year lifespan.

19. Building Parliament’s Institutional Oversight Capacity (contd) Capacity and Resources for Committees The following proposals were made in the consultants’ report toward developing committees of Parliament: “Beefing up the existing parliamentary research capacity to undertake management and programme audits; Establishing a specialised agency for this purpose. For instance in the UK the Auditor-General scrutinizes accounts to see whether moneys have been spent as allocated; and Increasing the duties of the Auditor-General’s Office. (page 47)

20. Building Parliament’s Institutional Oversight Capacity (contd) Sub Committee Deliberations • Capacity and Resources – vital • Acquisition of Independently gathered information is essential to enable effective oversight. • Long term planning required. (long term vision & mission) • Parliament to begin by devising effective links with bodies engaged in oversight work of their own. eg Public Service Commission submission.

21. Building Parliament’s Institutional Oversight Capacity (contd) Institutions supporting Democracy Establishing a Standing Committee dedicated to the work of ISD The consultants propose the establishment of a Standing Committee on Constitutional Institutions in Parliament, as well as a revised budgetary allocation process for Chapter 9 bodies. Deliberation of Sub-Committees • Practical problems • Consultants’ recommendation not supported.

22. Building Parliament’s Institutional Oversight Capacity (contd) Recommendation: The matters of independence of the ISD, the more co-ordinated interaction between Parliament and the ISD, the effectiveness of the oversight roles of the ISD, their budgetary procedures and their accountability to Parliament, be the subject of a more extensive consultation process that should involve all role-players. This kind of process we believe should be initiated by Parliament and that it would be for Parliament to decide how best to engage in this process.

23. Building Parliament’s Institutional Oversight Capacity (contd) Developing an Institutional Memory • Expertise acquired during the first two terms to be harnessed Sub-Committee recommends that: Parliament, urgently takes measures to develop a Best Practice Guide to capture inter-alia the best oversightpractices of committees and the experiencesof chairpersons of various Select and Portfolio committees.

24. Building Parliament’s Institutional Oversight Capacity (contd) Fine tuning and developing Oversight mechanisms Section 55(2) of the Constitution of the Republic of South Africa “The National Assembly must provide for mechanisms- • to ensure that all executive organs of state in the national sphere of government are accountable to it; and • to maintain oversight of- i. the exercise of national executive authority, including the implementation of legislation; and ii. any organ of state.”

25. Fine tuning and development Oversight mechanisms Section 239 of the Constitution of the Republic of South Africa “In the Constitution, unless the context indicates otherwise, “organs of state: means-a) any department of state or administration in the national, provincial or local sphere of government; and b) any other functionary or institution-i. Exercising a power or performing a function in terms of the Constitution or a provincial constitution; orii) Exercising a public power or performing a public function in terms of any legislation.”

26. Fine tuning and development Oversight mechanisms (contd) Sub-Committees’ Deliberations • Parliament must adopt a policy to oversee organs of state • Two broad approaches may be followed⃟ Tracking the path of huge allocations of public money ⃟ Focusing on issues of National Interest.

27. 1. Parliament commissions an audit of the various bodies exercising public powers or performing public functions and which should in addition clearly delineate which line function departments are responsible for the various organs of state. Portfolio and Select committees within Parliament will consequently assume the necessary oversight responsibility. 2. Parliament through the JRC develops a policy aimed at meeting its constitutional obligations set out in S 55 (2)(b)(ii) 3. Such policy should consider the necessity for basic legislation giving effect to S 55 (2) on issues of oversight and accountability and dealing especially with organs of state directly accountable to Parliament.

28. Fine tuning and development Oversight mechanisms (contd) Oversight Reports of Committees • Time available to committees to conduct oversight work is limited • It is an exception rather than a rule for committees to report to the House on their oversight work. Recommendation The JRC develops a policy allowing for more debates on committee oversight reports to be programmed. These debates should take the form of MPs raising issues of concern based on the reports tabled and Ministers responding to those issues.

29. Introducing Oversight mechanisms The sub-committee presents two options for consideration: OPTION ONE Recommendation 7 Parliament should begin a formal process of evaluating its oversight activities as distinct from its legislative role and developing a manual on Accountability and Oversight for MPs and Committees, with the intention of constantly developing and refining a manual. This option proposes that Parliament first develop its oversight processes and conventions in a manner that is captured in a manual to be updated from time to time. Parliament will at a future time be able to assess whether it is required for such procedures and practices to be captured in legislation.

30. Introducing Oversight mechanisms (contd) OPTION TWO Recommendation 7.1 Parliament should adopt the recommendation as proposed by the consultants that an Accountability Standards Act be enacted. The option proposes that a twin Act complementing the PFMA would spell out what is expected of the Executive and administrations and secondly give Parliament clarity on the standards against which policy and outcomes must be monitored

31. Bringing Parliament’s Oversight Role to Bear on the Budget Process The sub-committee noting that: Parliament’s constitutional responsibilities are: Passing legislation (sec 43(a) of the Constitution Act 108 of 1996) Conducting oversight (inter-alia sec 92(2), 55(2) and the PFMA) Budgeting (sec 77) Amending the budget, (S 77(2))

32. Bringing Parliament’s Oversight Role to Bear on the Budget Process (contd) And that: There is an inextricable link between all of these responsibilities • The compilation of the budget is essentially an executive function and Parliament should maintain its integrity and ensure that it does not purport in any way to assume any functions of the executive. • Like all stakeholders Parliament should develop an influencing role for itself during the compilation of the budget. • Parliament should draw on its oversight experience to inform and influence the budget. • The greater part of Parliament’s influence should be focused on the compilation stage of the budget and amendments to the budget should be affected only in extreme and extraordinary contingencies. Examples of these could be significant incongruence between spending and delivery – where policy and spending priorities do not match or in the event of extreme departmental waste or inefficiencies

33. Bringing Parliament’s Oversight Role to Bear on the Budget Process (contd) Recommendation 8 The sub-committee noting the inextricable link between effective Parliamentary oversight and Parliament’s role in the budget process recommends that: Parliament develops a formal process to enact legislation in terms of Section 77(2) of the Constitution.

34. Subcommittee’s recommendations Accountability, Oversight and the Constitutional Imperative1. Parliament through the Rules Committee compiles a document “landscaping” the Constitutional provisions relating to the inter-relating themes of Oversight, Accountability, Transparency and Responsiveness, and outlining International trends. Such a document should also include input from Constitutional negotiators either in the form of commissioned research or essays or (preferably) both.2. Following the tabling of the abovementioned document debates, workshops and discussions should be programmed and organised within Parliament, first among MP’s themselves, and then later on expanded to include other stakeholders. These debates and discussion should have as their objective the development of a broad understanding of the Oversight Role and Function of Parliament within our Constitutional democracy.

35. Oversight Role of the NCOP • The JRC initiate a process aimed at drafting guidelines for Portfolio and Select committees to allow for joint planning of oversight work • A process should be initiated to establish protocols to ensure structured communication between committees through streamlining of the Committee Section, which would allow for more effective and formal communication between committees of both Houses that embark on mutual interest oversight work and briefing sessions.

36. Building Parliament’s Institutional Oversight Capacity • The JRC begins a process aimed at producing a long term institutional Vision and Mission Statement aimed at building Parliament’s oversight capabilities through adequate resourcing and capacity building in committees, Constituency Offices and within Parliament’s administrative support structures – in particular the Committee Section where a record-keeping system, and tracking mechanisms are required to be established. • Parliament adopts a policy requiring each new Parliament to assess and review its Oversight capabilities at least once during its five-year lifespan. • The matters of independence of the Institutions supporting democracy (ISD), the more co-ordinated interaction between Parliament and the ISD, the effectiveness of the oversight roles of the ISD, their budgetary procedures and their accountability to Parliament, be the subject of a more extensive consultation process that should involve all role-players. This kind of process we believe should be initiated by Parliament and that it would be for Parliament to decide how best to engage in this process.

37. Developing an Institutional Memory 4. Parliament, urgently takes measure to develop a Best Practice Guide to capture inter-alia the best oversight practices of committees and the experiences of chairperson of various Select and Portfolio committees.

38. Fine tuning and development Oversight mechanisms 1. Parliament commissions an audit of the various bodies exercising public powers or performing public functions and which should in addition clearly delineate which line function departments are responsible for the various organs of state. Portfolio and Select committees within Parliament will consequently assume the necessary oversight responsibility. 2. Parliament through the JRC develops a policy aimed at meeting its constitutional obligations set out in S 55 (2)(b)(ii) 3. Such policy should consider the necessity for basic legislation giving effect to S 55 (2) on issues of oversight and accountability and dealing especially with organs of state directly accountable to Parliament. 4. The JRC develops a policy allowing for more debates on committee oversight reports to be programmed. These debates should take the form of MP’s raising issues of concern based on the report tabled and Ministers responding to those issues.

39. Introducing Oversight mechanisms Option 1 Parliament should begin a formal process of evaluating its oversight activities as distinct from its legislative role and developing a manual on Accountability and Oversight for MPs and Committees, with the intention of constantly developing and refining a manual.This option proposes that Parliament first develop its oversight processes and conventions in a manner that is captured in a manual to be updated from time to time. Parliament will at a future time be able to assess whether it is required for such procedures and practices to be captured in legislation. Option 2 Parliament should adopt the recommendation as proposed by the consultants that an Accountability Standards Act be enacted. This option proposes that a twin Act complementing the PFMA would spell out what is expected of the Executive and administrations and secondly give Parliament clarity on the standards against which policy and outcomes must be monitored.

40. Bringing Parliament’s Oversight Role to Bear on the Budget Process 1. The sub-committee noting the inextricable link between effective Parliamentary oversight and Parliament’s Role in the budget process recommends that:Parliament develops a formal process to enact legislation in terms of S 77(2) of the Constitution.

41. Conclusion • First time Parliament is able to assess some issues pertinent to its Constitutional obligations • Our work adds value to the ongoing work of developing Parliament worthy of our country and our People