INTRODUCTION

South Africa’s new democracy, since its inception in 1994, has been guided by the ideals of accountability, transparency and accessibility. Each of these principles is now served to a greater degree than has ever been the case in South Africa’s modern political history. However, these ideals operate mainly at the level of constitutional principles, and the adherence to them by political and public office bearers notwithstanding, they still have to be provided with a more tangible institutional manifestation. This article attempts to address this requirement in the particular context of the function and inherent political dynamics of standing committees in provincial legislative assemblies.¹

By late 1997, a debate had begun to simmer in party and government circles on the role of standing committees in provincial legislatures throughout the country. The broad thrust of the debate seems to be that, in the absence of an extensive primary policy and legislative role like that of their national counterparts, provincial standing committees would do well to focus upon their ‘oversight function’ and thus deliver more substantially on the principles of accountability and transparency (although these principles are, of course, also central to the function of the national standing committees). The issue is rendered all the more complex in that this oversight function should occur in a parliamentary (Westminster type) system,² and, more particularly, one that is constitutionally committed to the notion of ‘co-operative’ governance. The demand is clearly for novel and innovative initiatives to ensure that the provincial legislative institutions deliver on every constitutional requirement: from co-operative government, to accountability, transparency and accessibility, to oversight.

The timing of South Africa’s consideration of this matter is fortuitous. The questions of accountability and oversight are being revisited in democracies throughout the world and have resulted in renewed scholarly inquiry into reforming existing political institutions to allow for greater public scrutiny of the affairs of government. A particular note must be made in this regard of the deliberations that have flowed from the Scott Inquiry³ in the United Kingdom, and of the debates surrounding the introduction, in many democracies, of ‘freedom of information’ legislation. The South African experiences of oversight are best examined by tapping the experiences of those who operate within the provincial system. Interviews were therefore conducted with members of the Gauteng Legislature, as well as with staff members of its Committees Support Unit. Although the selection of interview candidates was subjective, it is hoped that input from across the political spectrum was acquired. As it transpired, the interviews indicated a significant degree of consensus on the dimensions and utility of the oversight function of provincial standing committees.

This article only focuses upon the oversight role of legislatures and their standing committees. A larger study would certainly devote attention to a number of other institutions that oversee the affairs of government. The 1996 Constitution accords oversight responsibilities outside of the formal triumvirate of the executive, legislature and judiciary. The ‘State Institutions Supporting Constitutional Democracy’ that are tasked with a deliberate oversight function would include the Public Protector, the Human Rights Commission and the Auditor-General. Although the oversight role played by these institutions is, to a certain extent, similar to the oversight function allocated to provincial legislatures, their mandates remain more specific and distinct from those of legislatures.

It is also necessary to take brief cognizance of the role of the private media as an ‘extra-political’ player that exercises significant oversight over the action or inaction of government. The media are often criticised for their tendency to zero in on scandals, or for the enthusiasm with which they publicise the errors or shortcomings of government. Regardless of the acrimonious relations that often result between government and the media, their role in the oversight process should not be undermined, but should instead be encouraged. Greater effort might be made to familiarise journalists with the work of the executive, the role of the legislature, and the standing committee and plenary schedules. This will ensure that reportage is based upon greater understanding, and that it is positive and constructive, or even critical and sensational when required.

KEY CONCEPTS

A number of related political concepts underlie the issues focused upon in this article.

OVERSIGHT

At present, the concept of ‘oversight’ is generally conceived in terms of the implicitly proactive ‘watch-dog’ role to be played by an elected legislative assembly towards the activities and functions of the executive and administrative arms of government. It is testimony to the currency of the term in political thought that, as yet, no definitions of it appear in dictionaries of political terminology.⁴ Political scholarship has traditionally focused on the responsibility of the executive to account to the legislature. The New Shorter Oxford Dictionary, however, does define ‘oversight’ as follows: "The action or an act of overseeing something; supervision, inspection; charge, care, control." The Legislative Training Programme of the School of Government at the University of the Western Cape expands the definition of oversight to "... the way in which the legislature monitors the administration and effectiveness of the programs that have been enacted into law."⁵ A series of dedicated prescriptions for oversight are also found in South Africa’s constitutional provisions. The Constitution demands as follows:

"A provincial legislature must provide mechanisms-

(b) to maintain oversight of -

(i) the exercise of provincial executive authority in the province, including the implementation of legislation; and

(ii) any provincial organ of state."⁶

The ‘exercise of provincial executive authority’ over which a legislature is to maintain oversight is determined by Section 25 of the Constitution:

"(1) The executive authority of a province is vested in the Premier of that province.

(2) The Premier exercises the executive authority, together with the other members of the Executive Council, by-

a) implementing provincial legislation in the province;

b) implementing all national legislation within the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise;

c) administering in the province, national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the provincial executive in terms of an Act of Parliament;

d) developing and implementing policy;

e) co-ordinating the functions of the provincial administration and its departments;

f) preparing and initiating provincial legislation; and

g) performing any other functions assigned to the provincial executive in terms of the Constitution or an Act of Parliament."⁷

Section 139 of the Constitution further specifies that a provincial executive has a supervisory role over local government in a province. The oversight obligation of provincial legislatures may therefore also extend to monitoring the effectiveness of the executive’s supervisory role over local government.
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Brief attention should be paid to the particular oversight capacity accorded to provincial legislatures regarding effective policing in each province. Section 206 of the Constitution allocates specific duties to provinces with respect to policing:

"(3) Each province is entitled -

(a) to monitor police conduct;

(b) to oversee the effectiveness and efficiency of the police service, including receiving reports of the police service;

(c) to promote good relations between the police and the community;

(d) to assess the effectiveness of visible policing; and

(e) to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.

(4) A provincial executive is responsible for policing functions

 a) vested in it by this

(b) assigned to it in terms of national policing policy."⁸

In terms of Section 114, provincial legislatures are thus required to monitor the effectiveness of the provincial executive in the matters referred to in Section 206(3) and (4). In addition, provincial legislatures are given the power to call the provincial police commissioners to account before their committees. Section 206(9) provides that "[a] provincial legislature may require the provincial commissioner of the province to appear before it or any of its committees to answer questions." Section 207(5) obliges the provincial commissioner, in turn, to "... report to the provincial legislature annually on policing in the province, and [to] send a copy of the report to the National Commissioner." This provides legislatures with the power, in the matter of policing, to hold even a national civil servant to account.

The interviews conducted for this article yielded a number of additional perspectives on the essence of oversight. In summarising these perspectives, those interviewed agreed that oversight must be exercised over:

* the work and activities of the executive council, as well as of the provincial public administration and other organs of state;⁹

* the drafting and implementation of legislation or policies by the executive, the administration and other organs of state; and

* the impact of administrative action upon provincial residents.

The interviews also indicated significant agreement on the understanding that oversight has two dimensions: a reactive and proactive/advisory approach. Not only should the legislature reflect on actions or policies tabled before it, and which may already have been initiated by the executive and administration, but it should also reflect upon actions and policies not yet initiated and which should potentially be undertaken. In other words, as the elected chamber of the people of the province, the legislature has some obligation to make recommendations for policy or legislative measures and, where necessary, should even initiate these.

Those interviewed agreed that the prevailing perception that oversight over the executive is invariably the preserve of opposition parties is not ideal in South Africa’s democratic setting. That this perception should not prevail, is all the more important where the ruling party holds as strong a majority as it does both nationally and in a number of provinces in South Africa. A new conception of oversight — one that is institutionally grounded and based upon cross-party co-operation — is required. The adjective ‘constructive’ was applied to oversight by a number of interviewees. This may well be the conceptual lynchpin around which a new interparty consensus position on oversight is constructed. There is a requirement to strip oversight of its traditional association with the work of the opposition keen to expose the failings of government in the eyes of the electorate (although the adversarial ruling party/opposition cleavage remains crucial, in many instances, in ensuring a clean and open administration).

Effective constructive oversight is not primarily concerned with exposing failings in the executive and ruling party, but with ensuring better government — in the South African context, government that realises tangible development — within a co-operative constitutional framework. The qualification ‘constructive’ becomes a synonym for the ideals of good government, development and co-operative governance. Constructive oversight ensures a clean, efficient and open administration (good government); it ensures effective policy and legislation (development); and it does this in a manner that is not necessarily adversarial (co-operative governance), although it may be adversarial in the interests of good government at times. Were the concept ‘constructive oversight’ indeed to become the nucleus around which political office bearers coalesce into a consensus position on the issue, this consensus would be the foundation upon which to build a cohesive cross-party legislative institutional identity (vis-à-vis the executive) from which to exercise effective oversight.¹⁰

A working definition of oversight emerges out of the above:

Oversight in the South African provincial context is the proactive interaction initiated by a legislature with the executive and administrative organs of a province that encourages compliance with the constitutional obligation on the executive and administration to account to the public’s elected representatives, and which advances the ideals of good government, development and co-operative governance.

ACCOUNTABILITY AND RESPONSIBILITY

If oversight locates the initiative with the legislature, tradition and practice locate the initiative to account and accept responsibility for function and conduct with the executive. The obligation that binds ministers to accept responsibility for and to account to the legislature on matters of their own and their department’s functions and conduct is a parliamentary convention that has its roots in the Westminster tradition. The convention now applies widely in parliamentary systems around the world. A number of attempts have recently been made by scholars and parliamentary office bearers to define the term ‘accountability’, in some instances as a synonym for or, more usefully, as a determinant of the extent of ministerial responsibility. A great deal of deliberation on these conventions has occurred in the United Kingdom, and the most recent English deliberations in this regard are turned to for clarity. These enquiries have focused, in particular, on the manner in which the notion of ministerial accountability to the legislature, and the responsibility (liability) accepted by ministers for their own and their department’s action or inaction, has evolved over time. The indication is that the conventions of ministerial accountability and responsibility as they were classically conceived, have lost much of their relevance in the modern political environment, and that a re-conceptualisation of the conventions — a ‘fine-tuning’ to bring them in line with contemporary political realities — is taking place.

The classical conceptualisation of ministerial responsibility to the legislature and its committees was described in the English practice as follows:

"... [E]xecutive powers are conferred by parliament on ministers of the crown. Both in regard to these powers and to others which derive from prerogative and not from statute, it has long been the established constitutional practice that the appropriate minister of the crown is responsible to parliament for every action in pursuance of them. It is upon ministers, and not upon civil servants that the powers of government have been conferred; and it is ministers — who are members of one or other house of parliament, whose dismissal from office parliament can bring about if it so chooses — who are answerable to parliament for the exercise of those powers."¹¹

This is an absolute convention that, as the House of Commons Public Service Committee acknowledges, is inappropriate to a modern, complex and extensive government. Today, a minister’s functions are so diverse that a great proportion of these are inevitably delegated to public servants. Government departments, in turn, conduct most of these functions without any reference to their responsible minister.

In order to give endurance and versatility to the doctrine of ministerial responsibility, a clear distinction has been introduced between ‘responsibility’ and ‘accountability’. Today the obligation to account has broadened and overshadows the obligation to accept responsibility (liability) which, in turn, has narrowed. The distinction between accountability and responsibility was captured, in the opinion of the House of Commons Public Service Committee, by Professor Rodney Brazier in 1994:

"[T]here should be an unqualified principle that a minister is accountable for everything which happens (or does not happen) in his or her department, in the sense that he or she owes a duty to account to parliament and the public for departmental policies, for what has taken place in the department or its agencies, and for the conduct of officials, and to demonstrate what has been done to correct mistakes and to ensure that they will not recur.

The principle that a minister is responsible to parliament and the public, and that he or she should bear personal blame for acts and omissions (and in appropriate cases resign), should be narrowed down to cases in which the minister has some personal responsibility for, or some personal involvement in, a blameworthy act or omission. It is absurd nowadays to try to continue the fiction that a minister is personally responsible, and should bear personal obloquy, for every occurrence in the department, even if he was unaware of it and had no reason to be aware of it."¹²

The Commons Public Service Committee’s contemplations finally drove it to the following defining formulation of both accountability and responsibility:

"Ministers owe a fundamental duty to account to parliament. This has, essentially, two meanings. First, that the executive is obliged to give an account — to provide full information about and explain its actions in parliament so that they are subject to proper democratic scrutiny. This obligation is central to the proper functioning of parliament and therefore any minister who has been found to have knowingly misled parliament should resign. While it is through ministers that the government is properly accountable to parliament, the obligation to provide full information and to explain the actions of government to parliament means that ministers should allow civil servants to give an account to parliament through select committees when appropriate — particularly where ministers have formally delegated functions to them, for example in the case of chief executives of executive agencies.

Second, a minister’s duty to account to parliament means that the executive is liable to be held to account: it must respond to concerns and criticism raised in parliament about its actions because members of parliament are democratically elected representatives of the people. A minister’s effective performance of his functions depends on his having the confidence of the House of Commons (or the House of Lords for those ministers that sit in the upper house). A minister has to conduct himself and direct the work of his department in a manner likely to ensure that he retains the confidence both of his own party and of the House. It is for the prime minister to decide whom he chooses as ministers; but the prime minister is unlikely to keep in office a minister who does not retain the confidence of his parliamentary colleagues."¹³

Further, the Public Service Committee observed that it ultimately falls to the Prime Minister to ensure that the members of government conform to the highest standards of democratic accountability. The Public Service Committee added, however, that while it may be correct for the Prime Minister to set out the conditions according to which ministers should govern their conduct, the obligations of ministers to Parliament should be derived from Parliament itself.¹⁴ In this regard, it proposed a parliamentary resolution on ministerial accountability.¹⁵ Although the British suggestion for a separate written code of accountability emanates from a political environment in which no written constitution exists, the writers none the less concur that the accountability obligations of the provincial executives and administrations to the provincial legislatures in South Africa may similarly be governed by a written code or convention, produced by the legislatures,¹⁶ and outlining their expectations in terms of Section 133 of the Constitution.

Section 133 of the Constitution provides directly for executive accountability in the provinces:

"(1) The members of the executive council of a province are responsible for the functions of the executive assigned to them by the premier.

(2) Members of the executive council of a province are accountable, collectively and individually, to the legislature for the exercise of their powers and the performance of their functions.

(3) Members of the executive council of a province must -

a) act in accordance with the Constitution and, if a provincial constitution has been passed for the province, also that constitution; and

b) provide the legislature with full and regular reports concerning matters under their control."¹⁷

In South Africa’s constitutional circumstances, the concept of ministerial accountability is therefore no longer a convention or a tradition, but a doctrine formally enshrined in the Constitution.¹⁸ Venter confirms this: "In the Constitution, an effort has been made to write into law the British conventions regarding the executive in order to facilitate certainty regarding governance in the executive."¹⁹

Unfortunately, no provisions exist to prescribe the degree of responsibility (liability) for any action, inaction or omission that ought to be accepted by ministers or their public servants. The dimensions of ministerial responsibility remain, therefore, under debate.

"[T]he practical application of the notion of individual ministerial responsibility is surrounded by controversy [even] in Britain. Some authors dismiss it as a myth, which has no practical relevance, while others see it as the organising principle on which the central government and its administration rest."²⁰

Popular perception continues to hold that members of government operate under the obligation to resign at the first exposure of error, negligence, ineptitude, misconduct or violation of the public trust. Ministerial resignation is indeed the ultimate sanction for gross negligence, misconduct or a failure to answer effectively and truthfully to the legislature. But, the Commons Public Service Committee warns:

"Ministerial responsibility and resignation is not a formal matter, in which certain particular actions or omissions will result inevitably in a minister’s departure from government. A minister’s survival in his job depends primarily on the satisfaction of his ministerial colleagues — particularly the prime minister — and of his fellow members of parliament. Parliament has no formal ability to remove a minister; and members can only place pressure on him, and the rest of the government, to ensure his resignation or removal. Many in the house may regard a minister as personally culpable in one way or another for some mistake or mishap. But so long as his ministerial and party colleagues are prepared to defend him, the chances of obtaining his removal are minimal. If he loses their support, however, his fall is inevitable."²¹

The insistence on ministerial resignation is also both inadequate and extreme. While the threat of forced resignation must exist as the ultimate censure, its existence as the only form of censure creates the scope for wide latitude within which ministers may fudge their obligations to be accountable. It might be argued that additional instruments of censure need to be devised to give greater clarity in the (wide) area in which a minister has been negligent, but not to the extent that she or he needs to be called to resign. Ministers must be obliged to account openly and fully even without the threat of forced resignation. Indeed, Sir Richard Scott, during the course of his inquiry, concluded that the essence of ministerial accountability lies not in the threat of resignation, but in the obligation to inform Parliament.

"In Scott’s view, this is the very heart of the theory of parliamentary accountability. This includes the duty to provide information to parliament to the fullest and most open possible extent. The minister may not knowingly mislead parliament i.e. tell a deliberate lie."²²

Nevertheless, Venter has identified the existence of a consensus regarding ministerial responsibility among scholars of politics.²³ This consensus appears to have settled around a hierarchy of ‘degrees’ of responsibility, to which escalating sanction is applied.

Informatory responsibility

This is the obligation of a minister to inform parliament of the operations of the department and/or executive agencies in his or her portfolio.

Explanatory responsibility

The minister has to explain and defend government and departmental policy to Parliament. There is no duty on a minister to defend a civil servant who has made a mistake negligently and/or willingly, or who has taken an action of which the minister disapproves, or of which the minister has no knowledge. The tabling of financial reports and performance audits on departmental policy includes explanatory responsibility to Parliament.

Amendatory responsibility

The minister takes Parliament into his or her confidence, admits that things have gone wrong in the relevant department and promises to have matters set right. A minister will defend actions taken in good faith, but will admit to mistakes. Discharging this duty does not include obligatory resignation where ‘things have gone wrong’.

Resignatory responsibility

A minister should resign on four accounts:

* if his or her own policies in the department turn out to be outrageously inept or corrupt;

* if a minister gravely disagrees with government, Cabinet and/or policy;

* if a minister’s personal life (sex, finances) are a disgrace and embarrassment to the ruling party/Cabinet; and

* if the minister told a deliberate lie to Parliament or to the public in the discharge of his or her informatory or explanatory responsibilities.²⁴

SEPARATION OF POWERS

The doctrine of the ‘separation of powers’ holds that the three formal locations of state power — legislative, executive and judicial — should remain independent from each other to ensure the protection of civil liberties and the survival of democracy. Although there is no specific reference to this doctrine in the Constitution, it was entrenched in South African constitutional practice by Principle VI of the Interim Constitution. This principle established that "[t]here shall be a separation of powers between the legislature, the executive and judiciary, with appropriate checks and balances to ensure accountability, responsive-ness and openness."²⁵

The Constitutional Court accorded the following description to this principle:

"The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another."²⁶

Strictly applied, the doctrine of the separation of powers supposes no overlap between the three arms of government. In practice, however, the doctrine is modelled differently according to the democratic system in which it is applied.²⁷

For example, the boundaries between the three powers are more definite in the United States, where members of the executive do not have seats in Congress. Such a political arrangement provides for greater clarity between the legislature and the executive. Even in such a setting, however, it may be argued that a strict application of the doctrine of separation of powers is not conceivable:

"If the concept of separation of powers were carried to its logical conclusion, it would mean that no one of the three branches of government could ever participate in any way in the functions of the other. Such an extreme interpretation would nullify the system of checks and balances which, though logically incompatible with the idea of separation of powers, is practically indispensable to it."²⁸

In short, a degree of functional overlap must counterweigh the rigid separation of institutions.

In an archetypical parliamentary system, tensions between the executive and the legislature are not expressed as freely as they might be in a proper separation of power establishment. Collisions between the legislative and executive branches are obscured as members of the executive come to rely upon the support of their party colleagues in the legislature to shield them from criticism. The incumbents in a parliamentary debate are defined by party allegiance and ruling party members gravitate towards support of their colleagues assigned with executive duties.²⁹ Holding the executive to account, as has already been observed, becomes a task for the opposition rather than the legislature as an institution. Moreover, the ruling party becomes a transmission belt — it allows members of the executive to influence actions taken by the legislature. The executive is able to take an increasing role in developing legislation and then significantly inhibits the legislature’s initiatives in this regard and corrupts its functional integrity. The notion of ‘checks and balances’ - the concomitant of the doctrine of separation of powers — is directly affected and in fact weakened as a result. The phenomenon spills over into the standing committees, within which the distribution of seats unavoidably reflects those in the plenary.

CURRENT PROVINCIAL PRACTICE IN SOUTH AFRICA

Although the most pronounced arena in which members of the executive are held to account is a legislature’s plenary, the public observer is all too often unaware that a great deal of oversight is accomplished in standing committees. Richard Calland of Idasa, in his 1997 paper on the transformation of the South African parliamentary committee system, has pointed out that the case for a system of committees has rested on the view that, since the mid-nineteenth century, the increasing strength of parties has caused the legislature to lose control of the executive, particularly in Westminster systems. By the late 1950s and early 1960s, the importance and potential of parliamentary committees were more fully developed, and the period since then has seen a move away from ad hoc arrangements towards committee systems that are specialised and permanent, and that replicate the structure of the executive arm of government.³⁰ In short, "... committees have increasingly been perceived to provide legislatures with a more efficacious modus operandi."³¹

It follows that the standing committee system should be undergoing a process of invigoration in a number of parliamentary democracies. In the legislative assemblies of Great Britain, Canada and Australia, political office bearers and parliamentary officials are devoting their efforts to the improvement of the functions and efficiency of standing committees. South Africa’s standing committees, completely overhauled after the democratic election of 1994, already enjoy the power to initiate policy and legislation, and are equipped by the Constitution, statutes and house rules to exercise oversight over the executive and administration.

Although political office bearers envisage a powerful, independent and insightful committee system as a central component of the country’s governance, it emerged strongly during the interviews conducted in the course of this research that the provincial committee system is not functioning optimally — that there is room to improve the role and functions of committees. Two areas where change can be effected, were suggested:

* In order to enhance the performance of oversight by standing committees there needs to be a change in political perceptions, referred to as ‘political culture’.

* A number of institutional considerations may need to be confronted to bring about change in committee structures and procedures.

Under Section 5.11(1) of the Gauteng Legislature’s Standing Rules, a standing committee has the power to:

"(iii) investigate and report on issues on its own initiatives or as referred to it;

(iv) exercise oversight over the executive and administration;

(v) call for evidence, summon persons to appear before it and produce any documents required by it, publish a bill before it for representations and comments by the public, and hold public hearings."³⁷

Comparative examples indicate the allocation of a general oversight duty — akin to that contained in South African Constitutional and rules provisions — to all committees in a legislative assembly. The House Rules of the US House of Representatives devotes a section to ‘General Oversight Responsibilities’. Each committee in the House is formally mandated to "... review and study, on a continuing basis, the application, administration, execution, and effectiveness of those laws, or part of those laws, the subject matter of which is within the jurisdiction of that committee", and to report to the House on its findings. The committees’ oversight duties are extended to "... the organisation and operation of Federal agencies or entities having responsibilities on or for the administration and execution thereof." Under the House Rules, standing committees must "... review and study any conditions or circumstances which may indicate the necessity or desirability of enacting new or additional legislation within the jurisdiction of that committee." Moreover, each standing committee is required "... to review and study on a continuous basis, the impact or probable impact of tax policies affecting subjects within its jurisdiction", as well as to "... review from time to time, each continuing program within its jurisdiction for which appropriations are not made annually in order to ascertain whether such programs could be modified so that appropriations therefore would be made annually."³⁸ The explicitness with which the general oversight responsibility is articulated, ensures that it is well understood, and simplifies any assessments of the accomplishments of committees in this regard.

A greater review of comparative practice, however, will also indicate that specific oversight duties are allocated to specific (oversight) committees in legislative assemblies. These ‘oversight committees’ bear various titles: the Committee on Government Reform and Oversight, or the Committee on Government Assurances. The scope of these committees’ responsibilities covers common themes: efficiency and management in the public administration, reviewing and reporting on a department’s accounts, and examining the implementation of policy and legislation. In the Indian Lok Sabha, the Committee on Government Assurances has the duty to

"... scrutinise the assurances, promises, and undertakings given by ministers from time to time, on the floor of the House, to report on the extent to which such assurances have been implemented, and, where implemented, whether such implementation has taken place within the time necessary for the purpose."³⁹

The Committee on Government Reform and Oversight of the US House of Representatives includes in its specific oversight mandate matters such as the overall economy, efficiency and management of government operations and activities, public information and records, the relationship of federal government to states and municipalities in general, and the reorganisation in the executive branch of government. The committee also studies the Comptroller General’s reports, the effects of laws pertaining to the organisation of the legislative and the executive branches, as well as intergovernmental relationships. The House Rules go even further and allow the Committee on Government Reform and Oversight to investigate any matter that circumstances may require, even if such matter is a function of another standing committee. The Committee on Government Reform and Oversight must also receive a two-year oversight plan from each of the other House committees.⁴⁰

Standing committees and the public administration

It has already been pointed out that ministerial responsibility has been transformed from its classical conceptions into a form that acknowledges the complex and extensive nature of modern government. This transformation determines, among others, that a significant degree of accountability and perhaps even direct responsibility has been dislocated from the executive and has been transferred to the staff of the public service. Members of the executive retain formal authority over, and are accountable for the public servants in their charge. However, public officials regularly appear before standing committees. It has become commonplace for public officials to act as representatives of their ministers and public servants here, as elsewhere, are frequently singled out for misconduct or corruption and bear the blame for their own activities.

In addition to the increasing political role of ordinary public servants, there is a trend in South Africa — again as in other countries — to parcel off many of the functions traditionally performed by the administration to agencies that operate with significantly greater freedom and latitude than the ordinary public service. These agencies often exist off the public revenue account and exercise a significant influence over the lives of citizens, but are not formally or directly accountable to these citizens. There is thus some requirement to ensure that such statutory agencies are equally accountable to the legislatures for their actions.

The degree to which staff and management in the South African provincial administrations and their statutory agencies appreciate the role and function of the legislature in a province’s political institutional make-up is not clear. Public servants and agency members who are insensitive to the authority of the legislature may be tempted to drag their heels or even avoid responding to a request directed at them. Parliament has traditionally played a minor role in South Africa and in the provinces, legislative institutions have never existed before 1994. It is therefore by no means certain that a culture of responsibility to legislative committees is universal in an administration that is an amalgam of older civil servants and new staff employed since 1994.

If civil servants, over and above designated ‘accounting officers’, are to have some responsibility to the legislature, then the question arises how pressure may be applied against civil servants who are recalcitrant or neglectful of their duty to answer promptly and accurately to the legislature. It is thus proposed that a code of conduct and accountability should be formulated by legislatures that determines the duties, behaviour and responsibilities of civil servants to the legislature. Their performance in their posts will be judged according to this code. Specifically, a public service code of conduct and accountability would go a long way in entrenching the significance of the legislature’s oversight role in the minds of civil servants. The concept of a code of conduct has already been mooted in the report of the Ethics Technical Committee to the Rules Committee of the Gauteng Legislature. The Ethics Technical Committee observed the following:

"The integrity of government is affected by the conduct and standards practised by all of its officials, both elected and appointed. It is therefore appropriate that a single code of ethics cover each branch of government with standards and requirements appropriate to the duties of each official."⁴¹

The Ethics Technical Committee recommended that such a code should be contained in statute — the legislative option, the technical committee found, had the benefit of "... sending a clear message that all public officials will be covered by one single code of ethics." Legislation also makes for "... stronger enforcement mechanisms and punitive measures."⁴² It must be emphasised again that this initiative should be pursued and extended into a full Code of Conduct and Accountability for all elected members and public servants in each province (see the section on accountability and responsibility above).

The capacity of standing committee members

The first step to effective oversight is achieving coherence among committee members about the information that they should request and the questions which they should ask of the executive and civil servants. Currently, members of standing committees do not always have access to proper information about their respective fields and departments and, in addition, are not always aware of the information that might be available. This is the case in a number of parliaments and, for example, has prompted the House of Commons Liaison Committee to suggest that "... it should be the duty of departments to ensure that select committees are furnished with any important information which appears to be relevant to their inquiries without waiting to be asked for it specifically."⁴³

Insufficient expertise and knowledge to allow them to undertake in-depth analyses and mount constructive challenges to the members of the executive and administration also hamper committee members. This skill shortage seriously erodes the prospects for a successful proactive committee oversight strategy and ultimately affects the ideal of a constructive oversight relationship between standing committees and the executive and administration. The skills shortage is magnified in the smaller opposition parties where one member is required by his or her caucus to hold seats on a greater number of committees than is the case with larger parties.⁴⁴ In order to correct this, it may be suggested that the allocation of committee seats should be done with due regard to continuity of tenure by members. The Canadian House of Commons Standing Rules, since 1985, have required a minimum of one year membership on any committee.⁴⁵ This period may be extended in South Africa, possibly to three or even five years, to ensure that each member of a legislature becomes familiar with and acquires expertise in, at most, a few competencies. Continuity and stability in committee membership also contribute to greater co-operation between members and the development of a more substantial and professional relationship. Although some degree of committee membership turnover is unavoidable, this should be kept to a minimum as a matter of principle.

The independence of standing committees from the executiv

Within the parliamentary (Westminster) system, the degree of independence from the executive that is sufficient for effective oversight can only be established through the efforts of the committee members themselves, by consolidating their identity as members of that committee rather than of a particular party caucus. The degree of independence that members are able to assert, may be measured in the way that committee meetings are conducted, in the issues that a committee chooses to scrutinise, and in the relations between committees and their respective departments or other organs of state. Concerns about the independence of standing committees are therefore not limited to South Africa. The committee system of the US Congress is frequently referred to as enjoying the greatest measure of independence from other organs of state or government:

"Congressional committees derive their power from the scale of their resources — a typical committee could have as many as between 50-100 staff — but also from Congress’ own position in relation to the executive arm of government. In the US, there is a true separation of powers, in the sense that the administration is separate from Congress."⁴⁶

By virtue of its extraordinarily high levels of resources, weak party system, and clear, constitutional separation of powers, the US is in many ways ‘a deviant case’. A 1979 study by Lees and Shaw concluded that "... the committee system in the American Congress is not only the strongest system in the present study; it is by far the strongest."⁴⁷ In Westminster-type parliamentary systems, characterised by a ‘weak’ separation of power, and the political proximity of members of the executive to members of the legislature, in contrast, standing committees achieving independence from the executive remains an important challenge.

Nevertheless, the call for a more pronounced legislature/executive divide should not fly in the face of the principles of co-operation that are constitutionally prescribed in South Africa. A close relationship between the executive and the legislature remains an essential basis for effective oversight. It is already standard practice for members of the executive councils to appear before provincial committees to present their department’s annual report. In addition, greater and more continuous interactions between the relevant committees and members of the executive and administration, should be developed. Standing committees may:

* conduct regular oversight visits to departments;

* lay down the framework and content according to which annual reports are prepared by the administration;

* increase the number and types of reports that are to be prepared by departments in any one reporting cycle; and

* with due regard to the annual plan of a department, design their own annual oversight agenda.

Committee chairpersons

Committee chairpersons play a leading role. Their position requires them to direct debates, prepare agendas, manage the committee’s budget and organise meetings with impartiality. The political activity of a chairperson is inhibited to a degree. At the very least, a requirement exists for chairpersons to balance their political convictions with the requirements of their office. Chairpersons’ leadership and their ability to perform their function independently and without interference from party superiors, directly affect their ability to sustain the effectiveness of particular committees’ oversight capacity.⁴⁸ Because of the centrality of the chairperson to the oversight function, a tradition has developed in a number of foreign legislatures that accords the chairpersonship of crucial oversight standing committees to opposition party members.⁴⁹ The practice may be detected in foreign legislatures such as Canada, India, Namibia and Lesotho. In the German Bundestag, the number of committees chaired by opposition members are proportional to the seats held by the opposition parties in the assembly. The value of the practice is clear — allocating a higher number of chairpersonships to opposition parties could consolidate the independence of committees from the executive and enhance the participatory role of opposition parties in a country’s governance.⁵⁰ Quite bluntly, "... if the committee is shadowing a minister from a different party then the level of oversight tends to be greater ..."⁵¹

CONCLUSION

It is hoped that some innovations in provincial legislative and political practice will flow from the contents of this article. Many of these innovations may result from the more ‘politically weighty’ themes of the article: for example, the stress on developing a cross-party institutional identity in legislatures; or the implicit argument throughout of the incompatibility of the Westminster-based parliamentary system with an ideal ‘separation of powers’ regime. About these, no concrete recommendations are proposed. However, there are a series of key recommendations that can confidently be made.

Primarily, a Code of Conduct and Accountability should be constructed in each province that determines the duties and responsibilities of members of the executive and public servants (including members of executive agencies funded by provincial revenues) to the legislature, and their obligation to report to committees.

Secondly, a system of degrees of responsibility should be accepted into legislative and executive practice, and should be applied during committee and plenary debates. The application of degrees of censure might be recorded by a legislature’s speaker’s office. In this manner, a case history may be developed over time that can be re-applied as a precedent to guide future cases of ministerial censure. The power of a legislature to directly censure a member of the executive is prescribed in Sections 141(1) and (2) of the Constitution. It is therefore accepted that the suggestion to record and apply censure precedents may require a re-interpretation of the dimensions of sections 132(1) and (2) and 133(1) and (2) of the Constitution, that this re-interpretation will have to be accepted by both the legislatures and the executive councils.

Thirdly, consideration should be given to the establishment of assurances committees in the provinces, with a mandate similar to that of the Committee on Government Assurances of the Lok Sabha.

Fourthly, a mandatory period of committee membership should be included in every legislature’s rules, which may only be broken in exceptional circumstances.

Fifthly, consideration should be given to a greater allocation of committee chairpersonships to members of opposition parties, particularly on those committees — over and above the Public Accounts Committee — deemed to have a more pronounced oversight function than usual.

Finally, provincial standing committees are to become more proactive in determining the standards and criteria for reporting to them by members of the executive and administration. Executive and departmental reports should be augmented by proactive oversight visits to departments or institutions by standing committees.

ENDNOTES

This article is an edited and shortened version of a report that was prepared for the Gauteng Legislature’s Rules Committee in 1998. The paper was adopted by the Committee and delivered to a Rules Workshop hosted by the Legislature on Functioning Principles and Rules Governing the Gauteng Legislature in October 1998. The report has been revised for general publication and is included here for its discussion of and suggestions on the matter of clean and efficient government through effective oversight and ministerial accountability and responsibility.

At the time of writing, Claudie Senay was an intern at the Gauteng Legislature. Her internship was sponsored and facilitated by the Canadian Parliamentary Centre and CIDA. Dirk Besdziek was a researcher at the Gaunteng Legislature. He recently joined the Financial and Fiscal Commission as a researcher.

The term ‘standing committee’ is used for simplicity throughout this article. The writers are aware, however, that the descriptions ‘portfolio’ and ‘select’ committee exist in common parlance. The term ‘standing committee’ serves as an encompassing term and the assumption is made that all committees (barring those expressly concerned with internal operational and administrative matters) bear some oversight obligations.



In contrast to the presidential system of the US, for example, that is traditionally associated with the concepts ‘separation of powers’ and ‘checks and balances’.



Scott Report, Report on the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, House of Commons, Great Britain, 1995-1996.



The authors perused both D Robertson, Dictionary of Politics, Penguin, London, 1993; and R Scruton, A Dictionary of Political Thought, Macmillan, London, 1996.



School of Government, The Legislative Research Services: Legislative Standing Committees, Legislative Training Programme, University of Western Cape, Bellville, February 1998, p. 2.



The Constitution of the Republic of South Africa Act No 108 of 1996, Section 114(2).



Ibid., Section 125.



Ibid., Section 206, Subsections 3 and 4.



‘Other organs of state’, for example, may refer to statutory boards or commissions that operate at arm’s length from government.



This would be in keeping with the oversight obligation that is conferred upon all members of a provincial legislature, regardless of their status as members of the majority party or of an opposition, by Section 114 of the Constitution; op. cit.



Public Service Committee, Report: Ministerial accountability and responsibility, House of Commons, Great Britain, 1996, p. xi.



Ibid., p. xiv.



Ibid., p. xix.



This conclusion was made on the basis of the findings of the Scott inquiry, which found numerous examples of ministers failing to discharge their responsibilities in terms of the prime ministerial code of conduct (a written document, Questions of Procedure for Ministers). The Scott inquiry gave rise to the Public Service Committee Report cited above. Scott Report, op. cit.



Public Service Committee, op. cit., p. xxxi.



In order to avoid conceptual confusion on the matter of the code referred to in the text, it may be useful to distinguish between a code of ethics (one that applies to the obligations of elected members to disclose personal financial interests or to disclose unbecoming personal behaviour) and a code, as proposed by the Public Service Committee, that enshrines the more formal accountability obligations of ministers to the legislature. The writers believe that a code that is produced by the legislature should ultimately make provision for both aspects of accountability (that is formal constitutional accountability and personal ethical accountability).



Constitution, op. cit.



Over and above the South Africa Constitution, a number of other legislative and policy instruments already exist that place significant obligation on provincial executive council members and public servants to give maximum commitment to openness, transparency and accountability in the matters of government and governance. These include, among others: the Open Democracy Bill that was published for public comment in 1997; the Public Service White Paper (both of which provide for formal and principled commitment to openness, transparency and accessibility for all institutions of government); and the National Assembly’s code of conduct for elected office bearers



A Venter, The Sarafina 2 case: Evasion of ministerial responsibility to parliament?, unpublished draft paper, Rand Afrikaans University, February 1998, p. 1.



David Judge quoted in ibid., p. 2.



Public Service Committee, op. cit., p. xvi. The security of tenure of South African provincial Members of the Executive Council (MEC) is more reliant on the confidence of the legislature than seems to be the case for an English Cabinet minister — provincial legislatures do have a formal ability to remove one or more MECs. Section 141(1) of the Constitution provides that a majority of a provincial legislature’s members may pass a motion of no-confidence in the Executive Council, excluding the Premier, thereby requiring the Premier to reconstitute the Executive Council (presumably without the MEC or MECs that have fallen from confidence).



Venter, op. cit., pp. 7-8.



Ibid., p. 7.



Ibid., pp. 7-8.



Interim Constitution of the Republic of South Africa, Act 200 of 1993.



Constitutional Court of South Africa, Certification of the Constitution of the Republic of South Africa, 1996; Case CCT 23/96, 1996, p. 67.



Ibid.



C Rodee, T Anderson & C Christol, Introduction to Political Science, McGraw-Hill, New York, 1967, p. 59.



Invariably, colleagues in the executive are a party’s seniors. This places their more junior caucus colleagues in the awkward position of being formally expected to criticise them in the parliamentary plenary, while having to defer to them in caucus meetings. Clearly, this state of affairs is the most glaring shortcoming of a parliamentary system where it tries to approximate a more efficient ‘separation of powers’ scenario.



R Calland, All dressed up with nowhere to go? The rapid transformation of the South African parliamentary committee system in comparative theoretical perspective, unpublished paper, Idasa, Cape Town, 1997, pp. 2-3.



Ibid., p. 2.



S Macozoma, The role of standing committees: An ANC perspective, in H Kotze (ed.), Parliamentary dynamics: Understanding political life in the South African Parliament, Centre for International and Comparative Politics, Stellenbosch, 1996, p. 113.



See also Calland, op. cit., p. 16.



P Giddings, Select committees and parliamentary scrutiny: Plus ça change, Parliamentary Affairs, 47(11), October 1994, p. 669.



Public Service Committee, op. cit., p. xxiv.



Constitution, op. cit., Section 115.



Gauteng Legislature, Standing Rules, Version 3, Revision 10, May 1998, Section 5.11(1).



United States, House of Representatives: House Rules, <clerkweb.house.gov/docs/rules/>, Rule X.



Indian Lok Sabha: Rules, <alfa.nic.in:80/rules/>, Rule 323.



US House of Representatives, op. cit.



Ethics Technical Committee, First Draft Report of the Ethics Technical Committee to the Rules Committee, Gauteng Provincial Legislature, Johannesburg, 1996.



Ibid., p. 2. An Executive Member’s Ethics Bill (in terms of Section 96(1) and 136(1) of the Constitution, op. cit.) has already been drafted at national level. The bill seeks to "... empower the President to publish a code of ethics in the Government Gazette which will apply to the President, Deputy President, Premiers, Ministers, Deputy Ministers and Members of Executive Councils."



House of Commons, op. cit., p. 5.



H Bekker, The role of standing committees: An IFP perspective, in Kotze, op. cit., p. 124.



Parliamentary Centre, Committee Effectiveness, Report of the Liaison Committee, The Current Effectiveness of Committees, Occasional Papers on Parliamentary Government, 4, Sept. 1997, p. 3.



Idasa, The SA parliamentary committee system in a comparative perspective: Developing a theoretical paradigm for ongoing research, unpublished draft, Idasa, Cape Town, p. 3.



Lees & Shaw, quoted in ibid., p. 3.



H Kotzé, Take us to our leaders: The South African National Assembly and its members, Adenauer Occasional Papers, Johannesburg, July 1997, p. 18.



An arrangement not unlike that which existed in the period of the Government of National Unity from 1994 -1996.



School of Government, op. cit., p. 6.



Calland, op. cit., p. 18.

Ms Wendy Landau, Committee Section Manager

Mr Tshepiso Nage , Group Co-ordinator

Mr Oupa Vilakazi, Group Co-ordinator

Members of the Gauteng Legislature:

Ms Lindiwe Zulu, Deputy Speaker

Mr Firoz Cachalia, Leader of the House

Mr Steward Ngwenya, Chairperson of Committees

Mr Johan Kilian, Leader of the Opposition

Mr Peter Leon, Leader of the Democratic Party

Mr Aboo Khan, Chairperson of the Public Accounts Committee