Madonsela joins Outa’s view on parly’s state capture inaction

The Organisation Undoing Tax Abuse (Outa) is considering mounting a challenge over rules which allow parliament to not take action on matters such as state capture, alleging MPs failed to use their powers to act on state capture and maladministration.

This was the premise of two documents forming an affidavit submitted by the lobby group to the Commission of Inquiry into State Capture.

According to the affidavit’s author, Outa parliamentary engagement officer Matt Johnston, the abuse lobby group wanted to use the documents to possibly take legal action against parliament.

He said parliamentarians had failed to use the rules of parliament to act timeously on allegations of corruption and state capture.

In the constitution, it is stipulated that the National Assembly must ensure executive organs of state are accountable to it. It also states that this institution must maintain oversight of national executive authority, as well as organs of state.

Johnston detailed how the rules governing MPs are open-ended enough to empower elected officials to take action at their discretion. The catch was that they were also apparently free to do nothing at all, with no real consequences either way.

“Members of parliament are free to act in the immense zone of the ‘permissible but not required’ without constitutional constraint. The rules of the National Assembly and the National Council of Provinces do not satisfy the constitutional provision that states they must ensure mechanisms that affect accountability and oversight of the executive.

“Political interests and biases in the interpretation and application of these discretionary rules prevent tangible consequences resulting from them,” Johnston said in the affidavit.

Former public protector Thuli Madonsela agreed there was this double-edged sword in parliament.

For this, she blamed the limitations of South Africa’s proportional representation system, a common analysis among those like Madonsela who propose a dual accountability system.

In parliament, proportional representation was a double- edged sword because on the one hand it meant more voices were heard in the House, but on the other, bigger parties with more lobby money muscle out the smaller parties on issues of accountability.

“People who are elected to parliament don’t have to fear the people of their constituency because they answer to the political party above everything else,” she said.

The problem extended to all elected individuals who had to forgo acting on their constitutional mandate in favour of a political one, lest they be removed from the seats they were elected to.

Chair of the standing committee on public accounts (Scopa) Mkhuleko Hlengwa said parliament had demonstrated its powers to act on graft in various inquiries held in parliament.

“There are a lot of avenues available to deal with allegations of corruption that have been prevalent in South Africa.

“There has also been broad acknowledgement of the shortcomings within parliament’s systems.

“It is also common cause that state capture has manifested itself in parliament,” said Hlengwa.

“But, on the other hand, parliament has also in its own capacity dealt with various governance issues arising out of state capture.

“For instance, we have dealt with the Eskom inquiry among others, the issues of [South African Social Security Agency] grant payments and, more recently, the interim board of [the Passenger Rail Agency of SA], which was itself incompetent and was dissolved because of the intervention of Scopa.”

But Madonsela said the imbalance of power between political parties and voters was rooted in flaws in the electoral system. This meant that individual members of parliament could not act against party mandates, even if they were legally empowered to.

“For example, in the Nkandla issue, people only became emboldened once I had released the report and even the components of state capture became even more emboldened since then,” said Madonsela.

“We need to strengthen institutional accountability, where we mix political and social accountability. In this system, representatives would have to answer in equal part to the people in their constituency and their political heads.”

The second document was Outa’s second annual assessment of parliament’s oversight, which emphasised the role of public participation in good governance and that parliament mostly paid lip service to this.

This was despite parliament’s own public participation policy passed in 2018 but which had not implemented. This policy called for the public to be encouraged to verify government departments’ performance.

– simnikiweh@citizen.co.za

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