“The Role of Legislatures’ Oversight Committees in Deepening Democracy and Accountability for the use of Public Resources in South Africa”

By: Nyasha Mcbride Mpani

Introduction

Chapter 4 of  the Constitution[1] spells out the mandate of Parliament which is of protecting the Constitution and promoting democratic governance in South Africa. Good governance deals with how public institutions conduct public affairs to realize human rights and democracy is about rule by the people. Good governance is an essential pillar for democracy building and Parliament plays a critical role in democracy building as it has the power to ensure that the provisions of the Constitution are upheld.  As mandated by the country’s constitution Parliament has three major functions which are; Law Making, Executive Oversight and  Representation. However, at the heart of executive oversight is Parliamentary budget oversight. This is important as it enhances good governance and accountability of public resources. In this regard Parliament and its Oversight Committees  have a critical role to play in making sure that the government is held accountable. It is the duty of oversight committees to demand officials and service providers not only to produce justifications, but to take corrective action in instances where public resources are not being effectively utilized for the benefit of all South Africans.

The thrust of this paper is to look at the role of oversight committees in deepening democracy and accountability for the use of public resources in South Africa. The role of Parliament and its oversight committees will be explained in detail and the challenges that these committees face in being effective in upholding their constitutional duty. Cases on where these committees should have acted to avoid public resources being to put to waste are also stated in this paper.

The Role of Parliament/ Legislature

Parliament is one of the key governance institutions providing checks and balances on the Executive. As a representative body, the Legislative Assembly is a central institution in any democracy. According to Chapter 4 of South Africa’s Constitution[2], Parliament is defined as an elected representative body having supreme legislative powers within a State. The Inter-Parliamentary Union (IPU)[3] defines a Parliament as follows:

“A Parliament is a generic term depicting a representative body of individuals to whom the people have entrusted the responsibility of representing them by laying down the legal framework within which society shall be governed and seeing to it that these legal conditions are implemented in a responsible manner by the Executive. “

In a democratic South Africa, the role of the legislature is to  advance the principle of separation of powers which is provided for in the country’s Chapter 4 of the Constitution. The separation of powers system originates from Constitutional Principle 5 of the Interim Constitution of 1996 which provides that ‘there shall be separation of powers between the legislature, executive and judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness.[4]‘ The principle of separation of powers governs the relationship between the three arms of the State.  Separation of powers is the extent to which the powers of Government are separated functionally between the three branches. Under a strict understanding of the principle of separation of powers, each arm of the State should not interfere with the other arms of the State. The principle is aimed at ensuring that the use of state power is not abused and constitutes a system of checks and balances on state power. It requires that Parliament through its oversight committees  must make law; the judiciary must professionally interpret the law; the executive must dispassionately enforce the law; and all institutions must respect the law and abide by it (Seedat,2015).

The South African Constitution has vested in Parliament the role of protecting the supreme law. Institutions and agencies of the State and Government including the Office of the President and Cabinet, executive and non-executive commissions such as police, defence, intelligence, electoral commissions, etc. are all required to abide by the Constitution. If properly exercised, vesting the power to protect the Constitution in Parliament provides a useful mechanism to check the excesses of power held by these institutions and agencies. Parliament through its different oversight committees is therefore mandated to protect the democratic space through facilitating public involvement in its legislative and other processes which seek to foster accountability of the use of public resources in South Africa. The Constitution is clear that it is a responsibility to ask interested parties about draft legislation being considered by Parliament, and for plenary and committee sittings to be held in public. This is all done to deepen democracy and foster accountability of public resources. It should be noted that in the South Africa setting the concepts of oversight and accountability are deeply engraved in the country’s constitution and the legislature through its oversight committees are constitutionally mandated to scrutinize and oversee executive action and any organ of state.

Conceptualizing Accountability

The term accountability has a plethora of dimensions. It involves two distinct stages which are answerability and enforcement. USAID defines answerability as the obligation of the government, its agencies, and public officials to provide information about their decisions and actions and to justify them to the public and those institutions of accountability tasked with providing oversight[5]. Furthermore, USAID notes enforcement is when public or the institution responsible for accountability can sanction the offending party or remedy the contravening behavior[6]. Accountability is important as it inspires officials to act in the public interest. In any democracy it is the role of oversight committees to strive to make different government departments be accountable to them and the citizens to make sure public resources are not put to waste. Accountability is a pivotal pillar in making democracy work and it is the seal of contemporary democratic governance. Democracy is in jeopardy if accountability is not one of its anchor. Lack of accountability will give those in power and those in charge of public purse and institutions to abuse state resources for their benefit (Pelizzo et al,2006). Corruption becomes the bedrock of the state if  leaders are not held accountable in public for their acts or omissions, for their choices, their spending, or strategies. Accountability is the hallmark of good governance.

Conceptualizing Legislative Oversight

It is the duty of any Parliament to hold government and all its departments accountable for their actions. Global Parliamentary Report (2017) opines that Legislative oversight intend to stimulate people’s freedoms and well-being, and to improve accountability and transparency in government. Oversight is a function provided for by the Constitution to Parliament to monitor and oversee government action. Legislative oversight is about ensuring that proper resources are supplied to execute government programmes. It is about  recognizing inadvertent or harmful effects of government policy and actions and it seeks to observe the meeting of national and international commitments. Global Parliamentary Report (2017) articulates that successful oversight reinforces progress and deepening of democracy through strengthening legislation and policy, which lead to economic and human development. Maffio (2002) reiterates that oversight is not just a supervision of what the executive branch of government has done but is also supervision of the executive’s legislative proposals. The impact of effective oversight is felt throughout society, as resources are distributed more fairly and services such as education and healthcare are delivered more effectively.

Oversight/Legislative Committees

Oversight/Portfolio  Committees is the engine/heart of any legislative work. In these Committees that’s where most of the work of Parliament is conducted. These Committees are established as instruments of the Houses in terms of the Constitution to facilitate oversight and monitor government. Committees conduct business on behalf of Parliament and must report on any matter referred to them by the Houses. Legislative Committees must table their reports to the relevant House at least once a year. The Committees exercise oversight to detect and prevent abuse, to  prevent illegal and unconstitutional conduct on the part of government, to protect the rights and liberties of citizens, to hold government answerable for how taxpayers’ money is spent and to make government operations more transparent and increase public trust in the government. Issues to do with checks and balances of the Executive and any other state departments are conducted in these committees. Oversight Committees have the power to summon anybody to appear before them to give evidence or to supply any required documents or information. The Oversight Committees have powers to monitor, investigate and enquire into the activities of the executives; i.e., government policies, use of public resources, etc.

Oversight committees have a role to play in deepening democracy and accountability for the use of public resources in South Africa through facilitating public involvement in the legislative process. It also seeks the audience of interested parties to be consulted over bills  and abhors  public exclusion. Democracy is further  deepened through  regulating  access in parliamentary and committee meetings by making sure it is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom.

The oversight committees are also tasked to ask questions to minister and senior government officials and bring them to account for their actions,  participate meaningfully in the entire budget cycle to strengthen parliamentary budget oversight, promote increased civil society and public engagement of Parliament, promote increased, knowledgeable, and objective media coverage of plenary and parliamentary committee business. Executive oversight means parliamentarians must thoroughly scrutinize and follow-up the work of ministries and their departments and call them to account for their actions. Oversight Committees in the legislature in South Africa have a responsibility to hold the Executive to account by overseeing its work and making sure that it does not infringe on the rights of citizens, does not lead to waste of State resources and is consistent with the public interest (Pelizzo et al,2006).

It is imperative to note that Oversight Legislative Committees are obliged to deepen democracy in South Africa through promoting efficient and effective delivery of Government services. Furthermore, budgetary oversight is at the heart of strong executive oversight. The budget process is an important tool used by parliaments all over the world to exercise oversight. In South Africa, the Budget Committee and the Public Accounts Committee are the two main committees central to the role of Parliament in the budget process. These Committees with the corruption and state capture cases hovering around the state institutions has the responsibility of competently analysing the budget and track expenditures and programme results. Cases such as the Eastern Cape government’s substandard Enoch Mgijima R15 million stadium[7], Durban Municipality ‘s R5 million breakfast[8], Dr. Zweli Mkize’s Digital Vibes Scandal[9] and Winnie Mandela’s memorial service corruption case[10] are some of the cases which  portfolio committees have  a duty to scrutinize and make sure public funds are accounted for. It is the duty of these Committees through to be effective in budget analysis and monitoring different state departments that are under their purview and avoid public resources being spent without being accounted for.

Through the Public Accounts Committee, Parliament through its oversight committees can oversee public financial management and push for accountability of public resources (Pelizzo et al,2006). This is done through monitoring and overseeing  expenditure by the State and all Commissions and institutions & agencies of govt.  The reason for doing this to make sure all revenue is accounted; all expenditure is properly incurred and to make sure the Finance Minister reports to Parliament on the performance of loans raised and/or guaranteed by the State. Accountability of public resources is also strengthened by the Oversight Committee through ensuring that the Minister during the national budget tables a statement on the public debt of South Africa. Pelizzo et al (2006) states that on the national budget it is the duty of these oversight committees to make sure they foster accountability on public resources by making sure during the National budget they focus on the following important elements which are;

• Adequacy – how much is allocated to a specific vote, programme, or sub programme, as well as whether this is adequate or enough to enable the department to achieve its goals.
• Priority – how much is spent on each programme.
• Progress – measures change in monetary and percentage terms between two years or two periods
• Equity – have resources/funds been spent fairly or equitably?

It is important for oversight committees to inspect and regulate the government and its activities as regulating the government is a crucial element of advancing democracy and accountability of public resources.

Tools for Oversight and Accountability

Oversight Committees can conduct oversight and accountability using various tools. For conducting  inquiries oversight committees use the following;

• Oral evidence sessions: Committee may seek to be briefed by relevant Department on a matter
• Field / fact-finding Visits: This involves visiting communities and site inspections to check service delivery/monitoring implementation of legislation.
• Public Hearings: is when Committee facilitates public participation on a subject matter
• Briefings by interested stakeholders / groups
• Deliberative sessions
• Research – internal or commissioned
• Familiarization Tours

These methods are used interchangeably by oversight committees to foster accountability on the use of public resources in South Africa. These oversight and accountability methods of inquiries must be used extremely to promote good governance and effective financial management. Other than these methods of inquiries, oversight committees, need to give an eye of the following important documents all the time;

• Adjusted Estimates of National Expenditure – Mid-year
• Section 32 reports – quarterly expenditure reports are important as part of mid-year monitoring.
• Annual reports – including State organs reporting to the department
• Committee Reports
• National Treasury documents
• Auditor General’s Reports
• PSC Reports

Keeping an eye on these documents will strengthen democracy and buttress efforts of accountability on public resources, These documents are vital in the budget cycle of the country.

Challenges towards effective oversight by the portfolio committee

Oversight Committees are faced with several challenges that can impede the full realization of effective oversight. These challenges affect the deepening of democracy and affect accountability of public resources. The challenges vary from lack of technical knowledge, time for oversight, research, and content capacity etc. Oversight committees lack the technical knowledge needed in providing policy and legal know how on various policy and legal analysis. Lack of this assistance has led to committees being in a difficult position which does not make them effective in influencing policy. Members because of this lack of knowledge they cannot engage with the policy content. Government work or the way government works has a lot of increased complexities which can prove to be a challenge to committee members and act as an impediment.

In addition, another challenge is that these committees lack financial assistance will be provided to facilitate the conduct of public hearings and provincial visits. These activities are very important as they afford oversight committees the chance to solicit citizen input into the formulation and implementation of public policy.  South Africa is a very big country, and some areas are very remote and Committee funding might not be sufficient to have the committee reach all areas. While it is a financial challenge for oversight committees to conduct these activities it is important that they conduct them as they are important in establishing regular mechanisms for Parliament to receive technical and citizen input on key policy and legislative issues before the House, thus deepening democracy.

Furthermore, effective oversight by  portfolio committee is faced by a challenge of lack of research and content capacity.  This lack of research and content capacity affects the deepening of democracy and accountability of public resources in a plethora of ways. As the institutional memory of Parliament,  Oversight Committees staff lacks proper training which is vital for its staff.  Their training is important as it covers mainly areas such as Legislative analysis and drafting, including analysis, and drafting of legislation with a gender lens; Policy and Budget analysis, including gender responsive budget analysis and tracking; and Report writing. Oversight committees to avert these challenges need to be assisted with access to in-depth technical and policy expertise in a wide range of legal, political, economic, and social issues to enhance their capacity to influence the enactment of good law and policy. Further to that members of oversight committees are not well resourced on how to effectively use monitoring/tracking tools which , including the use of social accountability tools which are vital for deepening democracy and enhancing accountability.

It is also imperative to note that some oversight committee chairpersons are a challenge to effective committee oversight. This is because these chairperson lack or are not well  trained on leadership and as a result, they fail dismally to effectively steer their committee’s resolutions in the plenary of Parliament. The quality of a Chairperson of the Committee is important in enhancing oversight committees’ effectiveness. It should be taken into account that some of these Committee Chairpersons are chosen on party lines and not on competence, hence training them is important to make them objectively debate and drive Committees issues, national budgets and other fiscal and monetary instruments.  Having an Oversight Committee Chairperson who thoroughly interrogates issues such as the national budget and key government economic policies is vital as it provides informed, objective, and well-balanced proposals for consideration by the Executive.

Implications for Public Participation in Strengthening Legislatures Accountability to Citizens

Public participation seeks to ensure that the government is accountable and responsive to  societal needs and linking the public with the decision maker boosts public confidence and official are responsible for their actions[11]. Public participation is important in enhancing the role of legislative committees. The public can participate in the legislative process through several ways which are; attending constituency meetings on key public policy issues, having civil society representatives and experts enter constructive dialogue on identified thematic subjects with legislative committees, petitions etc. Public participation in these legislative processes is key in enhancing accountability to citizens.

While the oversight committees are doing their role as stated in the constitution it is important that the public actively participates in committee activities to strengthen accountability. The participation of public citizens in legislative processes has several implications. Public participation increases the capacity of state to respond to public needs. When grassroot agency is activated, it is very difficult for government or state institutions to sit on their laurels and not address issues of concern to the public. This fosters accountability as it makes it difficult for  the executive not to do diligent and effective work in the use of public resources. Furthermore, public participation also enhances effective oversight and redress. Public participation offers legislative committees the ability to be able to single out blind spots on important matters which they wouldn’t have seen. It also leads to solutions that might not have arisen. The wide-ranging review and revision that is done in different public participation activities enhances the quality of scrutiny and accountability. Another implication of public participation is that it adds skills, involvement, and thoughts on use of public resources. Furthermore, another implication is that engaging with a broader range of stakeholders during transitions increases the legitimacy of the new government and increases sustainability and accountability reforms. It also gives or makes the public feel that they do have a sense of ownership and say on the way their resources are being used and distributed by the government. Bottom-up processes through involving public participation increases empowerment & improvement and use of public resources by the state and its entities.

Another implication of public participation is that it promotes safeguarding of public funds and assets. It encourages every person who is responsible for the expenditure of public funds or resources to safeguard the funds and ensure that they are spent only on legally authorized purposes and in legally authorized amounts. Public participation makes sure that there is custody or control of public property, funds, resources and ensures that it is not lost, destroyed, damaged, misapplied, or misused. While public participation comes at a price it should ne encouraged as it regulates and promotes transparency, accountability of public resources.

Conclusion

Deepening democracy and promoting accountability of public resources demands an effective oversight committees to keep the executive and all government department on their toes. It is the duty of these committees that they use necessary monitoring and tracking tools to make sure that public resources and funds are not being put to waste or misappropriated. To do this, it is the duty of these committees to make sure that they keep an eye on the following key documents; adjusted estimates of national expenditure, section 32 reports, annual reports – including State organs reporting to the department, committee reports, National Treasury documents, Auditor General’s Reports, and PSC Reports. These committees however face a myriad of challenges which include lack of capacity, research, finance, and leadership which then affects their effectiveness. It is the role of civil society organisations to make sure they stand in and assist committees to address these challenges so that democracy wins and that public resources are not put to waste in South Africa.

Resources

Global Parliamentary Report (2017). Parliamentary oversight: Parliament’s power to hold government to account. France by Courand et Associés. France.

Maffio, R. (2002) “Quis custodiet ipsos custodes? Il controllo parlamentare dell’attivita’ di governo in prospettiva comparata”, Quaderni di Scienza Politica, vol. 9, n. 2, pp. 333-383.

Seedat. S. (2015) The South African Parliament in 2015: A paper commissioned by the Council for the Advancement of the South African Constitution (CASAC).

Pelizzo, R. et al (2006) Parliamentary Oversight for Government Accountability. Washington, D.C.U.S.A.

[1] https://justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf

[2] ibid

[3] https://www.ipu.org/

[4] http://casac.org.za/wp-content/uploads/2015/07/The-South-African-Parliament-in-2015.pdf

[5] https://www.usaid.gov/globaldevelopment/panel-transparency-accountability-and-open-government

[6] ibid

[7] http://www.702.co.za/articles/429072/the-forgotten-town-with-poor-service-delivery-and-a-r15-million-stadium

[8] https://www.citizen.co.za/news/south-africa/local-news/2638964/anc-kzn-slams-zululands-egg-spensive-r5-million-business-breakfast/

[9] https://news.yahoo.com/zweli-mkhize-ex-south-african-150508704.html?fr=sycsrp_catchall

[10] https://www.citizen.co.za/news/south-africa/crime/2654115/how-mabuyane-anc-pocketed-r11-million-from-winnie-mandelas-memorial-service/

[11] https://www.ipl.org/essay/Pros-And-Cons-Of-Public-Participation-PJRU6L22AG