Strengthening PAP Inter-Relationships with Regional (Provincial) Legislatures in South Africa: Towards enhancing parliamentary accountability and good governance.

By: Nyasha Mcbride Mpani

Introduction and Background

The Pan African Parliament (PAP) was established by the Assembly of Heads of State and Government in March 2004, by Article 17 of the Constitutive Act of the African Union (AU) as an Organ provided for in the Treaty Establishing the African Economic Community, signed in Abuja, Nigeria, in 1991 (also known as the Abuja Treaty). PAP was established to:

1. Perform advisory and consultative roles for African states.
2. Ensure the full participation of African peoples in the economic development and integration of the continent.

• Provide a platform for engaging citizens of Africa in discussions on the matters facing the continent.

1. Mainstream voices of the people in the decision-making process of the African Union.

Central to these roles is the need to ensures that the views, interests, and perspective of all African citizens are presented in decision making processes. The idea is that no one is left behind. The vision of PAP is for the organ to evolve into a continental legislative body that will enable mainstreaming of African people’s voices in the AU decision-making processes, thereby promoting popular participation, representation and oversight. This vision is centred on the need to promote accountability and good governance among AU member states. But can PAP achieve this alone? Or do provincial legislatures have a role to play? This paper seeks to outline ways in which provincial legislatures can be optimised with the Pan African Parliament’s activities and projects in enhancing accountability and good governance.

Powers and Functions of Pan African Parliament

As an organ of the AU, PAP has a set of powers and functions that focus on strengthening accountability and good governance. These include:

• Oversee development and implementation of AU policies and programmes
• Organise debate on the objectives, policies, aims, programmes, and activities of Regional Economic Communities, on all matters relating to the proper functioning of organs and the life of the AU
• Examine, discuss, or express an opinion or give advice on its own initiative or at the request of any of the Organs of the AU, a Regional Economic Community, or the Legislative Body of any Member State. This includes matters pertaining to respect for human rights, the consolidation of democratic institutions and the culture of democracy, as well as the promotion of good governance and the rule of law
• Issue invitations to the representatives of the Organs of the AU, Regional Economic Communities and their organs, Member States and their organs and institutions to furnish explanations in plenary on issues affecting or likely to affect the life of the AU
• Make recommendations and take resolutions on any matters relating to the AU and its organs, Regional Economic Communities and their respective organs, Member States and their organs and institutions

These powers and functions are crucial in harnessing the PAP’s unique value proposition as a representation of the African citizens as well as consolidating democratic gains for peace and stability in Africa.

Provincial Legislatures

The Republic of South Africa has nine provincial legislatures which are constitutionally mandated to pass legislation, provide a forum for public participation, involve the public in the law-making process, and oversee the activities of the provincial executive. These nine provincial legislatures include:

• Eastern Cape Provincial Legislature[1]
• Free State Legislature[2]
• Gauteng Provincial Legislature[3]
• KwaZulu-Natal Legislature[4]
• Limpopo Legislature[5]
• Mpumalanga Provincial Legislature[6]
• North West Provincial Legislature[7]
• Northern Cape Provincial Legislature[8]
• Western Cape Provincial Parliament[1]

The Provincial Legislature consists of Members, elected every five years on a proportional representation system. The Premier and Members of the provincial cabinet are appointed from these Members.  The legislature has powers which include enacting a constitution for their respective province, overseeing the administration of the provincial government, passing legislation in various fields enumerated in the national constitution, etc. It should be noted that provincial legislatures may recommend legislation to the National Assembly and its powers are bound only by the national and provincial constitution.

PAP Activities and Projects

Under its banner, the Pan African Parliament operationalises activities and projects geared toward the fulfilment of its mandate. These are designed to strengthen accountability and good governance on the continent.  The first set of activities and projects undertaken by PAP include election observation, model laws and fact finding missions, as illustrated in the figure below:

On election observation, PAP seeks to consolidate democratic institutions and cultures, good governance, transparency and the rule of law into the processes and outcomes of all Organs of the African Union, Regional Economic Communities and Member States. Furthermore, through Model Law, PAP seeks to contribute to the harmonisation and co-ordination of the legislative texts of Member States, in accordance with Article 11 (3) of the Protocol. Through Fact-finding Missions, the organs seek to promote peace, security and stability on the African Continent and to give recommendations and reports to the Assembly.

A second set of activities or projects undertaken by PAP comprise advocacy, regional consultations or public hearings and capacity building, as illustrated in the figure below:

Under these activities, PAP popularises and promotes the policies, objectives, and programmes of the AU, these include Protocols, African Charters, Agenda 2063, and the AU theme for the year. Through Regional Consultations/ Public Hearings, the organ seeks to promote specific shared values and AU programmes, including but not restricted to, free trade areas, security, and constitutional changes in Government.

Role of Provincial Legislatures in strengthening Pan African Parliament

While national policy is the responsibility of the national assembly, provincial government is responsible for translating these policies into guidelines that can be implemented in a regional context. To this end, provincial authorities can align with PAP to instigate a grass roots approach towards achieving accountability and good governance among AU member states by focusing on the following:

1. Access to information

Good information improves decision-making and enhances efficiency at every level of governance. At a provincial level, adequate information and time must be provided to provincial legislatures to deliberate on a bill and formulate a mandate. Similarly, the legislative authorities are required to ensure that information is adequately disseminated to the local level and communities so that the public has access to information.

The right of access to information empowers citizens to obtain information held by public bodies and helps them hold their governments accountable. The Promotion of Access to Information Act 2 of 2000 (PAIA) is South Africa’s access to information law. It enables people to gain access to information held by both public and private bodies to ensure that people can exercise their constitutional right of access to any information. Citizens should be informed about what government does (transparency) and be provided with sufficient opportunities to influence government decisions and policies (public participation)[1]. The ability to achieve this is largely dependent on the provision of reliable information before, during and after provincial policy consultation. In a bid to promote access to information in their respective provinces, legislative authorities can ensure that transparency is operationalised through open access to information.

Despite its progressive and expansive content, there are several aspects of PAIA that present barriers to the full realisation of the right of access to information. For example, PAIA provides a limited right of access to information; PAIA sets out several grounds for the refusal of a request for access to records in both public and private bodies (Sections 33-45 and 62-69)[2]. Section 12(a) states that, “this Act does not apply to a record of the Cabinet and its committees”. The exemption of Cabinet records effectively renders the right of access to major policy decisions and processes of government inaccessible to the public.

Policy consultation works as a mechanism for government transparency that can only function adequately if the public has access to information concerning both the policy and the consultation process. Access to information at the provincial level will equip the citizenry with the resources to make informed decision while enabling them to hold their governments to account. Raising awareness of PAP and the provincial legislature will also educate the people, encouraging and empowering them to be more involved in contributing to public policy.

1. Raise Awareness

Throughout its modern history, South Africa can justifiably claim that there are few countries that have matched its legislative output[3]. There are numerous pieces of legislation that, to varying degrees, deal with issues of access to access to information, however the legislation may not be effective and optimal if citizens are unaware of its existence and how best to utilise it. Provincial authorities can enhance democracy through raising awareness and encouraging public participation. This can be achieved by working with communities and Civil Society Organisations in creating collaborative spaces for dialogue. In the absence of effective mechanisms to promote meaningful deliberation, accountability, transparency and representation in the provinces, there is nothing to ensure that the legislatures matter, and the state will find itself even further away from achieving the prospects for parliamentary strengthening.

Far more insight on parliamentary strengthening can be gained if the occurrence of real change can be examined while the institutional features at the heart of parliamentary governance remain intact. Legislative studies research links legislature strength to the quality and strength of democracy[4].  Propounders of this argument suggest that the strength of provincial and national legislature may be the institutional key to

democratisation[5]. Increasing public awareness of rights in Southern African countries has placed responsibility on parliaments to be more effective.

• Accountability

The legislature is constitutionally mandated as the institution through which governments are held accountable. The accountability mechanisms available to any one legislature depend on the constitutional regarding of the specific powers of the legislature, the institutional arrangements between the different branches of government, and the division of authority between national, provincial, and local government. The Auditor General of South Africa (AGSA) has a constitutional mandate and, as the Supreme Audit institution of South Africa, exists to strengthen the country’s democracy by enabling oversight, accountability, and governance in the public sector through auditing, thereby building public confidence. The audits are conducted at a local, provincial, and national level. The enhanced powers of the office of the AGSA demonstrate confidence in public accountability.

The Consolidated General Report on National and Provincial Audit Outcomes PFMA 2020-21 recommended that provincial leadership and legislatures should focus on implementing sustainable solutions at provincial departments and public entities to improve the audit outcomes and delivery in the provinces.

For accountability to be enhanced in governance, there is the need for the legislature,[6] as the first estate of the realm, to use the state apparatus to pursue public good to enhance responsible and responsive government. Budget planning, revenue and expenditure allocation, financial reporting, external audits, and evaluation, as well as public accountability should involve significant interaction with civil society groups, businesses, and the public at large[7].

Monitoring and evaluation (M&E) appears to be one of the most neglected components of both parliamentary strengthening and electoral support programmes[8]. The political nature of such programmes presents particular challenges in formulating indicators and attributing impacts. In the case of legislative strengthening, much of the literature emphasises the importance of a baseline assessment and participation of national stakeholders to ensure programme sustainability, while overlooking continuous M&E which ensures that public accountability is realised in a sustainable manner. Provincial authorities can strengthen accountability by ensuring compliance to the requirements of the AGSA, National Treasury, as well as by being accountable to the citizenry that elected them into office. Provincial authorities may also see to the implementation of effective M&E within the accountability processes in their respective provinces.

1. Support of Advocacy

With advocacy, ideally, there should be no losers, rather improved legislation and policy that serves stakeholders’ genuine interests more effectively. At the provincial level, advocacy can be promoted for the improvement of public policy. Legislative activities have a direct impact on the political environment that supports and encourages sustainable human development. Enhancing advocacy and communication between legislators and their constituents is a way to make the legislature truly representative. Without close contact with their constituents, the parliamentary members cannot fully represent the people and may make erroneous assumptions about the needs and wishes of their constituents. Advocacy plays an important role in achieving public participation and ensuring that legislature is truly representative.

Public fora, media training for legislators and the establishment of public relations offices[9] are some ways of supporting advocacy development in the legislator-constituent relationships. It is equally important to open the legislature to the public and provide the media with access to legislative debates.

It is important not simply to organise public meetings but also to help develop the relationship between provincial legislators and the public. Therefore, careful planning for events and meetings is recommended to avoid embarrassing encounters that may result in unintended outcomes.

To enhance advocacy efforts in their provinces, legislators may support campaigns with the media with a particular focus on public attention and the importance of the balanced public participation and adequate representation of both women and men. The media can also be used to promote political ideas, educate voters, and mobilise support for the provincial authorities, especially in rural areas.

How PAP can strengthen its relationship with regional legislatures in promoting political accountability and good governance in SA?

As a body that does not have legislative powers, it is important that the Pan African Parliament strengthens its relationship with regional legislatures to promote political accountability and good governance in South Africa. It is important for the Pan African Parliament to strengthen its relationship with regional parliaments as these parliaments do have legislative powers to enact policies. The Pan African Parliament can strengthen this relationship through taking advantage of connecting with all provincial legislatures in South Africa and involve or expose them in various thematic areas that seek to address issues of political accountability and governance.  Second, they also need to involve the provincial legislatures in the PAP programmes and activities. This connection with provincial legislatures is of great benefit to the PAP, considering the legislative powers that these provincial legislatures have. Regional or provincial legislatures have powers to summon state organs, departments, leadership, etc. on any issue of concern and ask questions relating to accountability and good governance.

Conclusion

The operationalisation of good governance principles, such as accountability, transparency and public participation, depends largely on the degree of awareness and access that citizens have to legislative information. Access to information is variably applied across national and provincial governments, and legislation regarding the transparency of policy consultations appears contradictory. While the PAP has activities and programmes in place, if these are not operationalised by the national and provincial governments into the governance processes, these programmes and activities may not be optimised by the AU member states. If good governance principles are rooted at the local, provincial, and national levels of government, they will also ultimately, translate easily to the Regional level and be more achievable within the PAP. Therefore, in order to fully strengthen the PAP and its mandate to promote accountability and good governance among AU member states, a grassroots approach may be applied and disseminated from provincial legislature to the local governments.

References

Fish, Steven M. 2006. Stronger Legislatures, Stronger Democracies. Journal of Democracy 17(5). P.18.

Marais, D.L., Quayle, M. and Burns, J.K., 2017. The role of access to information in enabling transparency and public participation in governance-a case study of access to policy consultation records in South Africa. African Journal of Public Affairs, 9(6), pp.36-49.

McKinley, D.T., 2003. The state of access to information in South Africa. Johannesburg: Centre for the Study of Violence and Reconciliation.

Stapenhurst, R., 2004. The legislature and the budget. Oversight, p.51.

Youash, M., 2019. Making Legislatures Matter: The Paradox and Potential of South African Parliamentary Reform (Doctoral dissertation, University of Toronto (Canada).

[1] Marais, D.L., Quayle, M. and Burns, J.K., 2017. The role of access to information in enabling transparency and public participation in governance-a case study of access to policy consultation records in South Africa. African Journal of Public Affairs, 9(6), pp.36-49.

[2] https://www.gov.za/documents/promotion-access-information-act

[3] McKinley, D.T., 2003. The state of access to information in South Africa. Centre for the Study of Violence and Reconciliation.

[4] Youash, M., 2019. Making Legislatures Matter: The Paradox and Potential of South African Parliamentary Reform (Doctoral dissertation, University of Toronto (Canada)).

[5] Fish, Steven M. 2006. “Stronger Legislatures, Stronger Democracies.” Journal of Democracy 17(5). P. 18.

[6] DOI: 10.5901/mjss. 2014.v5n27p1411

[7] Stapenhurst, R., 2004. The legislature and the budget. Oversight, p.51.

[8] https://gsdrc.org/publications/me-of-parliamentary-strengthening-and-electoral-support-programmes/

[9] http://web.undp.org/evaluation/documents/essential-on-assisting-leg.pdf