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-Committees 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 AfricaThe 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 Parliaments 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 Parliaments
  oversight capabilities through adequate
  resourcing and capacity building in committees,
  Constituency Offices and within Parliaments
  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 Parliaments 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-Generals
  Office. (page 47)

20
Building Parliaments 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 Parliaments 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 Parliaments 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 Parliaments 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 oversight practices of committees and the
  experiences of chairpersons of various Select and
  Portfolio committees.

24
Building Parliaments 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 followed ? 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 Parliaments Oversight Role to Bear on
the Budget Process

• The sub-committee noting that
• Parliaments 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 Parliaments 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 Parliaments 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 Parliaments Oversight Role to Bear on
the Budget Process (contd)

• Recommendation 8
• The sub-committee noting the inextricable link
  between effective Parliamentary oversight and
  Parliaments 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
Subcommittees 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 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.

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 Parliaments Institutional Oversight
Capacity

1. The JRC begins a process aimed at producing a
   long term institutional Vision and Mission
   Statement aimed at building Parliaments
   oversight capabilities through adequate
   resourcing and capacity building in committees,
   Constituency Offices and within Parliaments
   administrative support structures in particular
   the Committee Section where a record-keeping
   system, and tracking mechanisms are required to
   be established.
2. Parliament adopts a policy requiring each new
   Parliament to assess and review its Oversight
   capabilities at least once during its five-year
   lifespan.
3. 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
  MPs 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 Parliaments Oversight Role to Bear on
the Budget Process

• 1. The sub-committee noting the inextricable link
  between effective Parliamentary oversight and
  Parliaments Role in the budget process
  recommends thatParliament 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