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SA: Mninwa Johannes Mahlangu: Address by the Chairperson of the National Council of Provinces, on the ccasion of the inaugural lecture of the National Council of Provinces, University of the Western Cape, Belville (20/02/2013)

21st February 2013

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Rector and Vice-Chancellor, Prof Brian O’Connell
Deputy Chairperson of the NCOP, Hon Thandi Memela
Members of Parliament
Members of the UWC Council and Senate
Acting Director of the School of Government
Academic staff and the community of students
Leaders of internal and external formations
Representatives of NGOs and civil society
Officials of our public institutions
Fellow South Africans
 
I greet you on this occasion of the inaugural lecture of the National Council of Provinces (NCOP), hosted by the University of the Western Cape (UWC).
 
We chose the UWC because of your role in breathing intellectual life to our struggle for a democratic and just society – entrenching yourself as the intellectual home of the left.
 
The lecture gives us an opportunity to talk about the implementation of our democracy project, focusing on the role of Parliament in general and that of the NCOP in particular. Our Constitution sets out the kind of democracy we must all build and defend.
 
I approach the topic assuming that most people here are familiar with the Constitution. I will therefore not dwell much on the compositional and functional aspects of Parliament, except to say that it consists of the National Assembly which is elected to represent the people, and the NCOP which represents the provinces.  Parliament is one of the three arms of the state.
 
I intend focusing on our deliberate tasks to entrench our democracy.
 
Generally, democracy is defined as a form of government in which all eligible citizens have an equal say in the decisions that affect their lives. It encompasses social, economic and cultural conditions that enable the free and equal practice of political self-determination. It has its origin in Greece, in particular Athens, but it has been modified throughout the years with the result that today we have many forms of democracy[1].
 
Our form of democracy is both representative and participatory. This means citizens must be involved, whether directly or through their representatives, when it comes to governance of the country. As Abraham Lincoln said democracy is a “government of the people, by the people, for the people".  And in the words of the Freedom Charter, The People Shall Govern.
 
Our first big task in implementing project democracy, after a protracted period of struggle, was the establishment of South Africa’s first democratically elected Parliament in 1994. This was done under the country's first non-racial Constitution (the 1993 Interim Constitution). This resulted in a bicameral Parliament (namely the National Assembly and the Senate). However, the Senate was unable to meet the needs of the new South Africa with its democratic, intergovernmental system - hence the establishment of the NCOP by the 1996 Constitution.
 
The dawn of democracy saw the start of the work to overhaul government structures and government policies. From 1994 to 1996 the 490 members of the National Assembly and the Senate, undertook the important task of writing a new Constitution through the Constitutional Assembly.
 
The establishment of the first democratic Parliament meant that as an institution, Parliament was to undergo unprecedented and fundamental change. A complete and wholly new institution was to be established, on both the political and administrative levels. New rules, procedures, mechanisms and capacities were needed to carry out the work of the new Parliament.
 
Our new Constitution gave rise to the formation of a new and unique House of Parliament - the NCOP. The institution was located at the centre of co-operative government and intergovernmental relations as it brought together all the spheres of government, including local government, under one roof.
 
Giving expression to the NCOP’s mandate, President Mandela noted when he addressed the House in 1998:

 

``The NCOP is uniquely placed to reflect the diversity of our society and to synthesise the experience of those spheres of government which are charged with the great bulk of the task of implementing our national programme of fundamental change’’.[2]

 

He added that among the tasks the NCOP faced, the consensus-building work remained the most vital.

 
As part of building a new Parliament, new working methods were created, adhering to the central value and theme of our participatory democracy. For instance, the tradition of committees meeting behind closed doors ended as these meetings were in terms of the Constitution opened to the public. Ordinary people, representatives of interest groups, business and trade unions became a familiar sight in Parliament’s corridors.
 
Among other things, Parliament had to be capacitated to support the work of public representatives in building our democracy. The tasks included laying the basis for reconciliation and transformation. We also had regular and competitive elections.
 
The change in perspective, informed by the Constitution and the calibre of new public representatives, became evident in the manner in which our Parliament performed its work. For example, there were more public outreach programmes. Parliament made use of all the 11 official languages of the Republic plus the sign language in engaging with the citizenry, making it accessible to all the people. This was to give practical expression to the participatory nature of our democracy.
 
Referring to the task of Parliament in amending and repealing apartheid legislation, as well as developing a new legislative framework, President Mandela noted as follows:
 
“These (laws) ... have created a framework for the revolutionary transformation of society and of government itself, so that the legacy of our past can be undone and put right. It was here that the possibility was created of improving the lives and working conditions of millions”.[3]  [emphasis is mine]
 
While noting the work done by Parliament since 1994, starting with the redefinition of our legislative landscape to transform our society, to entrenching its oversight role, there are still areas we need to improve in order to be effective and efficient. These are outlined in the Report[4] of the Independent Panel Assessment of Parliament. The panel, which consisted of politically diverse individuals chosen on the basis of their independence and integrity, was to critically reflect on the work of the institution.
 
The Panel’s recommendations included the following:
 
§  That Parliament should ensure that it develops the necessary skills and capacity (both among Members and staff) to effectively monitor the impact of legislation, both before and after its inception; and,
§  That Parliament’s efforts to promote knowledge of the institution and its processes among the public are essential to deepen and strengthen South Africa’s democracy, as well as increase the legitimacy of the institution in the eyes of the public.
 
Obviously, we cannot resolve all these challenges alone. As we declared in 2005, when we crafted a new vision for Parliament, ours is to build an effective people’s Parliament that is responsive to the needs of the people and that is driven by the ideal of realising a better quality of life for all the people of South Africa. That is how we have interpreted our constitutional role in building democracy.
 
To achieve this vision, we need among other things to draw from a pool of experience and knowledge on policy matters.
 
The UWC, through the School of Government (SOG), has been involved in some work relating to the NCOP, such as the intergovernmental relations audit report[5] published in 1999. The report was critical of the NCOP at a number of levels. Among other things it raised the issue of functional overload, limited resources and a challenging legislative process. Much of the introspection carried out by the NCOP over the years was thanks to this examination.
 
We would like to see our institutions of higher learning across the country, led by this university, contributing to a critical examination of the role played by the NCOP in satisfying the aspirations of South Africans which are ingrained in the texture of our Constitution.
 
I am saying this because the NCOP has played a significant role in building or supporting democracy locally, on the continent and beyond. We have shared experiences with fellow Africans, and counterparts abroad, to promote parliamentary democracy.  Examples include the second houses, or upper houses,  of parliament in countries such as the Democratic Republic of the Congo, Rwanda, Algeria, Czech Republic and India, to mention a few. The Parliament of the Republic of Zimbabwe sought our experience when they established their second House a few years ago.
 
On the other hand, we participate in discussions of parliamentary democracy as one of the establishing councils of the Association of Senates, Shoora and Equivalent Councils in Africa and Arab World. The Associations’ objectives include encouraging, supporting and strengthening bicameral systems in and outside the Africa and Arab regions. Also, our Parliament plays a key role in the Commonwealth. There is strategic value in transforming the Commonwealth to entrench a common agenda.
 
Later this year our Parliament will be hosting the 59th Commonwealth Parliamentary Conference as part of our objective of improving and widening the role of our Parliament in international co-operation and participation.   
 
Over and above, our Parliament is a member of the Inter-Parliamentary Union (IPU), the international organisation of the parliaments of sovereign states. Since 1889, the IPU has been the focal point for worldwide parliamentary dialogue. It works for peace and co-operation among peoples and for the firm establishment of representative institutions.[6]
 
Our participation in these international bodies is essential especially given that we ratify and oversee the international agreements that our Executive enters into on behalf of our country. Decisions on international matters must serve the interests of our people in a democratic set-up.
 
Programme director, to contribute meaningfully to an independent, critical and credible examination of the role of Parliament in advancing democracy, scholars need to constantly reflect. My observation over the years has been that some observers simply default to old narratives when critiquing the NCOP. In the beginning it was easy to dismiss the NCOP as a rubberstamping House. In February 2013 the theory, which was originally used to define the Senate, no longer holds.
 
Even in the early days of the NCOP, then Deputy President Thabo Mbeki cautioned against judging the success of the NCOP based on the number of amendments to legislation. He argued:
 
“There has been a tendency to evaluate the NCOP on the basis of the number of amendments made to draft legislation submitted to it.
 
“What this amounts to is an impression that the NCOP is functional and effective only to the extent that it rejects legislation emanating from the executive and the National Assembly.
 
He said that among other criteria to judge the performance of the NCOP we must ask: “To what extent are provinces evaluating legislative proposals emanating from the national executive against the conditions which prevail in their areas?”[7]
 
Nonetheless, the NCOP has made a tremendous contribution in ensuring that legislation that comes before Parliament is scrutinised closely. One would have noticed that we put our clear stamp on the contentious Protection of State Information Bill last year, engaging the public and contributing to the improvement of this section 75 legislation with no less than 800 technical and substantive proposals.
 
Even in the last term the NCOP came with important amendments to key pieces of legislation such as the National Credit Act (No. 34 of 2005) and the Consumer Protection Act (No. 68 of 2008). These Acts, in particular the National Credit Act, may have cushioned us against the global financial crisis.
 
The NCOP obviously has a bigger role to play in the processing of legislation that falls under section 76 of the Constitution, such as the annual Division of Revenue Bill, because of the provincial mandating process and the weight of those mandates to the overall decision of Parliament.
 
We have achieved this value-adding capacity because our bicameral parliamentary system provides for some checks and balances.
 
I agree with those who argue that the intellectual roots of bicameralism do not lie simply in the need for different classes of society or different states to be separately represented in different parliamentary chambers.  In fact, in March 2000, the Forum of World Senates which sat in Paris, France, in which we participated led by the then NCOP Chairperson, Mrs Naledi Pandor, adopted a declaration that identified the following four functions of second chambers:
 
§  consolidating and enhancing democratic regimes, through the diversification of representation and integration of all members of the nation;
§  facilitating the process of decentralisation and helping to regulate relations between local, regional authorities and central authorities;
§  entrenching legal rules and standards and the rule of law and placing the separation of powers in modern context; and,
§  helping to publicise legislative and political debate and informing and shaping public opinion.
 
At the risk of sounding provocative or simplistic, I must say that these functions mean that without bicameralism, democracy is in its infancy.
 
The NCOP oversees the programmes and activities of national government relating to provincial and local government matters.
 
Sections 100 and 139 of the Constitution give the NCOP considerable power and influence over interventions in provinces and municipalities respectively. Subsections 100(2) and 139(2) and (3) require the NCOP’s approval before such interventions can continue. This means the NCOP is expected to guard provincial and municipal integrity and to check any abuse by the Executive.
 
The South African Local Government Association, the voice of municipalities in the NCOP, has highlighted some fundamental policy or legislative constraints hampering local government. They say in some cases undue encroachment on the discretion of municipalities is compromising the sector’s innovative potential. The result, they say, is a lack of appetite on the part of municipalities to invest resources, capacity and energy in the short-term, knowing that another policy or legislative intervention is just around the corner.
 
We agree that in assisting local government, there must be recognition in our policy and legislative approach that municipalities, rooted in their particular historic, spatial and economic circumstances, are at different stages of their own development cycle, and treat them differently. Among other things, we also agree that we need to build the capacity of provincial governments to monitor and support municipalities.
 
In creating a government of the people by the people, we note that in the few specific cases relating to law-making, the Constitutional Court[8] had ruled that our public involvement processes had not been effective. To respond to this concern, we are developing a Public Participation Framework for Parliament and Legislatures. The intention is to ensure that there is common understanding and interpretation of the constitutional injunction of facilitating public involvement across the legislative sector.
 
The NCOP Taking Parliament to the People programme, conceptualised in order to enhance the participatory aspect of our democracy, will serve as an important case study for this exercise. This is because it ensures equal access to Parliament by all South Africans, through its focus mainly on reaching rural, poor communities in the provinces.
 
In this regard, President Jacob Zuma noted in his address to the NCOP that our “democracy brought with it a new way of doing things, including ensuring dynamic contact with the people where they live”.[9]
 
The programme is an essential intervention in building South Africa’s democracy as it promotes dialogue between the governed and the governors. As part of ensuring that the programme is effective, the NCOP ensures that the agenda is set by the people.
 
Two years ago I participated in a seminar organised by the Institute for Security Studies, focusing on public participation. My overall impression after the engagement was that civil society organisations supported our public outreach programmes. They viewed these as genuine attempts to engage the people in matters involving government, laws, policies and programmes.
 
However, they had concerns with regard to how Parliament in general was managing participation in law-making. One example was that calls for submissions on legislation were always given insufficient time, thus limiting the time to do research by those who want to make submissions.
 
I conceded that such practice would not be in the interest of democracy. It is through informed engagement, where different views are brought to compete, that we can build a strong democracy envisaged in our Constitution.
 
I appreciate that we are experiencing increased interest by civil society in the work of the legislative sector. This is good because civil society groups bring important insights which are informed by their contexts and perspectives. However, we need to educate one another on how to continue to build our constitutional democracy.
 
Our assessment is that despite clear challenges the NCOP has managed to harmonise very diverse provincial interests, something that was a legacy from our divided past. Provinces were different, from a language, race and culture point of view.
 
The post democracy provinces were not all the same. For example, Gauteng was the economic powerhouse, yet in the Northern Cape we perhaps had a province with more agriculture than people at one stage. Because of the NCOP, national government couldn't just pursue policies that would fit with the economic infrastructure or geography of the urban provinces such as Gauteng and the Western Cape. The policies needed to speak to the child in the rural Northern Cape who needed an education, to the gogo in the Eastern Cape who needed a social grant, etc.
 
Perhaps, the NCOP did not capture the news headlines with the kind of acrimonious debate that sometimes characterise a House of Parliament. Rather it went about its business in a quiet and careful manner. Who knows? Perhaps without the NCOP we may have had certain provinces call for secession, much along the lines of Quebec, in Canada, or even the region of Catalonia in Spain.
 
Through the NCOP, the centre held. It became the ‘glue’ that kept the three spheres together, and contributed to building one nation, one piece of legislation at a time.
 
Programme director, what would be the significance of this lecture if I did not leave you with some food for thought?
 
First, to guide its work this year our Parliament has adopted the theme Socio-economic Development through Oversight and Public Participation. The challenge is how to effectively and efficiently carry out this task and to lay the basis for the next Parliament?
 
Second, as a country we continue to experience a proliferation of service delivery demonstrations in various parts of the country, hence we have decided to pay greater attention to intensifying oversight and public participation.
 
While we acknowledge the challenges, we nonetheless feel that the people should express themselves within the ambit of the Constitution and relevant laws.
 
It is time we understood the real causes of these protests, focusing on the unseemly means of community expression and locating them in proper contexts, in order to make informed interventions. We need to ask whether these violent protests represent a new form of expression, pushing boundaries of democracy by sometimes unacceptable means.
 
Third, last year we interacted with the European Parliament and observed that parliaments were indeed evolving. The multi-polarity of the globalised world, the multi-level nature of governance, the multiple players that are interacting in law-making and political activities are creating directly or indirectly a new context for the legislature. Definitely, our Parliament must also learn to adapt in an environment of constant change. The challenge is how to build a modern Parliament where modern means of democratic expression and participation are entrenched.
 
Fourth, we have visited many poor communities around the country. In the final analysis we find the main challenges to be similar. We also know what needs to be done and have the resources for it. What seems to be the greatest challenge for our democracy though is mastering the art of implementation.  We need to interrogate this challenge further.
 
At this point let me thank you for your audience. We will post this lecture on our website and request that you participate in a process of deepening the debate.
 
I wish to thank Professor Chisepo Mphaisha, under whose leadership we have taken the relationship between the NCOP and the SOG to new levels.
 
We thank the UWC for supporting the process of social, political and economic transformation in South Africa and the Southern African region.
 
Mr Vice-Chancellor and Rector, we are truly grateful at this rare opportunity.
 
I thank you
 

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