Perspectives on South Africa’s Parliament at 20 Years Perspectives on South Africa’s Parliament at 20 Years The production and publication of this book was made possible by the Open Society Foundation for South Africa. Section 2 consists of edited versions of columns previously published in The Star, Cape Times, Mercury and Pretoria News. © C van der Westhuizen, 2012-2014 eBook ISBN: 978-0-620-59995-5 PO Box 1351 Sea Point Cape Town 8060 Typesetting & cover design: the earth is round www.theearthisround.co.za Contents Foreword by Aubrey Matshiqi 5 Abbreviations 8 SECTION 1: Parliament 1994 - 2008 10 i. History unmade and made: The Constitutional Assembly 1994-1996 . .11 ii. The Employment Equity Act of 1998: The DA’s race fix . 22 iii. The heavy hand of the executive: Paradoxical outcomes . .32 Arms deal ■ Choice on Termination of Pregnancy Act of 1996 ■ AIDS denialism ■ Civil Union Act of 2006 SECTION 2: Parliament 2008-2013 46 Parliament as institution: Powers and capacity 47 i. Growing power . .47 Money Bills Amendment Procedure and Related Matters Bill ■ restructuring of parliamentary committees ■ overseeing regulations ■ Trafficking Bill ■ new bills on police secretariat and complaints directorate ■ overseeing trade agreements and local government ■ department of women, children and people with disabilities ii. Faltering capacity . .87 Money bills act and public hearings ■ constituency offices ■ accountability of civil servants in local government ■ deadlines of Sexual Offences Act ■ oversight and accountability model ■ proportional representation Parliament and the public: Accountability vs national security 118 i. Which ‘public’? . 118 Scorpions and Hawks ■ Broadcasting Amendment Bill ■ Scopa and the arms deal ■ dismissal of Vusi Pikoli ■ powers of National Prosecuting Authority ■ the judiciary and the Superior Courts Bill ■ Torture Bill and Traditional Courts Bill ii. Whose oversight? The defence portfolio. 164 Defence minister’s appearances before Scopa and portfolio committee on defence ■ standing committee on defence’s closed meetings iii. Whose security? Protection of State Information Bill . 176 Public hearings ■ civil society interactions with MPs ■ the relationship between the minister of state security and the ad hoc committee ■ final version Parliament and constitutional bodies: “To assist and protect”? 198 SAHRC: lack of commissioners and commission’s independence ■ dilemma of Mpumlwana appointment to SAHRC ■ Public Protector and the police ■ Public Protector and justice ministry and committee ■ maladministration at Commission on Gender Equality and women’s ministry Parliamentary speech: A nation’s insiders and outsiders 220 Insider/outsider dynamics in legislative processes ■ department of home affairs and xenophobia ■ Sexual Offences Act and children’s sexuality ■ Traditional Courts Bill ■ Communal Property Associations Act ■ Elections and laws affecting traditional leadership Appendix: Briefing note – Citizen participation in relation to Parliament’s Ethics Committee and the Speaker’s Office 251 Foreword I find myself using the word “counter-hegemonic” a lot Foreword in my writing these days. This, I believe, is a function of my state of mind and the state of the nation and is, therefore, about our state of being as human beings and South African citizens. My mind is populated, among other things, by a gallery of faces from the past and my present. In the present, the image of Christi van der Westhuizen is the face of the counter-hegemonic in this gallery because, as evidenced by her writing in this publication, her logic is nothing if not devastating and challenging. The collection of her columns and essays in this publication deals mainly, but not exclusively, with our parliament as one of the democratic institu- tions that must deliver a democratic experience for us as citizens that will, in material and qualitative terms, be the antithesis of our apartheid past. Since we sometimes take for granted what has been achieved since 1994, her essay on how between 1994 and 1996 the post-apartheid par- liament ‘made’ and ‘unmade’ history serves as a useful reminder. In it she reminds us of how the Constitutional Assembly (CA) and the new parliament worked both together and in parallel to destroy the apartheid legislative architecture while, at the same time, the edifice of a new order was being constructed. But, she reminds us also that our parliament was meant to be the “high- est representative body” in our democracy – something that has never been reflected sufficiently in the budget process. As she correctly argues, the fact that the money bills law was not passed after the adoption of 5 the Constitution in 1996 and was only passed after the third democratic election can, at best, be explained in terms of the change in leadership in 1999 and, at worst, in terms of the impact of the arms deal scandal on the content of parliamentary processes. Foreword For me, this is just another illustration of the corrosive effect of single par- ty dominance in the context of our electoral system of proportional rep- resentation (PR). For a brief period between the conclusion of the 2007 Polokwane conference of the ANC and the 2009 elections, ANC parlia- mentarians were robustly challenging the executive. However, the past 20 years in parliament has generally been about privileging the wishes of party bosses over the needs and interests of citizens. The tragedy is that this malady is systemic and has infected political parties in parliament across the board. In her essay on the Protection of State Information Bill, van der Westhui- zen gives us a sense of realism with a tinge of the cynicism that seized many of us when parliament (read the ANC) decided to subject the bill to a public participation process. The public and media outcry over the draconian bill must have reminded the ANC parliamentary majority of how the Constitutional Court had taken a dim view of parliament’s failure in the past to give its processes the appearance of meaningful public participation. What is critical, though, are two contradictions that some of her essays allude to. With regard to the secrecy bill, the impotence that is imposed by single party dominance and our electoral system on our parliament coincided with the reality of the vibrancy of civil society mobilisation forc- ing the majority party to be sensitive to the voices of “ordinary” people. The second contradiction is contained in the tension between the su- premacy of the Constitution and that of parliament as was the case dur- ing apartheid. The possibility, therefore, is that in the foreseeable future the ambivalence of the majority party towards those democratic values 6 that define this tension will remain a feature of our parliamentary edifice. This collection of provocative insights and thoughts includes an essay about the DA and how it has dealt with the issue of race. Here, van der Foreword Westhuizen is at her most counter-hegemonic and her logic is particularly forensic and devastating. This collection is a must-have for anyone who needs an erudite but ac- cessible account of the past 20 years in the life of our post-apartheid parliament. Aubrey Matshiqi Research Fellow Helen Suzman Foundation March 2014 7 Abbreviations ACDP African Christian Democratic Party ANC African National Congress APC reviations African People’s Convention B AG B Auditor General A CA Constitutional Assembly CC Constitutional Court CGE Commission on Gender Equality CLC Community Law Centre CLaRA Communal Land Rights Act CPAs Communal Property Associations CSOs civil society organisations CTOPA Choice on Termination of Pregnancy Act DA Democratic Alliance DP Democratic Party DPCI Directorate for Priority Crime Investigation, or Hawks DG director general DSO Directorate of Special Operations, or Scorpions DTI Department of Trade and Industry EE Equal Education GAP Gender Advocacy Programme GGLN Good Governance Learning Network ICD Independent Complaints Directorate IFP Inkatha Freedom Party IPID Independent Police Investigative Directorate IPU Inter-Parliamentary Union ISS Institute for Security Studies 8 JIT Joint Investigating Team MEPs members of the European parliament MPs members of parliament MTBPS medium term budget policy statement NA reviations National Assembly B NCOP National Council of Provinces B NDPP National Director of Public Prosections A NIA National Intelligence Agency (N)NP (New) National Party NPA National Prosecuting Authority NGOs non-governmental organisations PAIA Promotion of Access to Information Act PFMA Public Finance Management Act PR proportional representation RWM Rural Women’s Movement R2K Right2Know campaign SAHRC South African Human Rights Commission SANDF South African National Defence Force SCA Supreme Court of Appeal Scopa standing committee on public accounts SOA Sexual Offences Act, or Criminal Law (Sexual Offences and Related Matters) Act SOS coalition Save Our SABC coalition SSA State Security Agency TCB Traditional Courts Bill TLGFA Traditional Leadership and Governance Framework Act WEGEB Women and Gender Equality Bill 9 PARLIAMENTSECTION 1994-2008 1 i. History unmade and made: The Constitutional Assembly 1994-1996 ii. The Employment Equity Act of 1998: The DA’s race fix iii. The heavy hand of the executive: Paradoxical outcomes Arms deal ■ Choice on Termination of Pregnancy Act of 1996 ■ AIDS denialism ■ Civil Union Act of 2006 History unmade and made: The Constitutional Assembly 1994-1996 History unmade and made: The Constitutional Assembly 1994 - 1996