Before we get to the point where we can safely protect public resources from major crimes such as state capture, we should interrogate the South African government system as well as the country’s political culture, so that we have a broader meaning of what needs to change and how. This argument was put forward by political analyst and academic Sithembile Mbete before the state capture conference hosted by the Public Affairs Research Institute and the Council for the Advancement of the South African Constitution last month.
Mbete was one of many speakers at the two-day event, held on 25 and 26 October, which sought to explore the way forward in terms of the findings and recommendations of the state capture commission – chaired for four years by Chief Justice Raymond Zondo – and the response from government to the commission report. President Cyril Ramaphosa declared in October 2022 that his administration would embark on major reforms, some of them to anti-corruption and governance legislation, and others to regulatory institutions and the public procurement space. He appointed the National Anti-Corruption Advisory Council to advise on how these broad reforms would be navigated by government.
Mbete asserts, however, that there needs to be a re-look of the current political landscape and how it plays out in the national and provincial legislatures, where political parties install members who must oversee the processes of the reforms in question.
“All of these recommendations are based on the idea of the centrality of Parliament in our political system. Nobody who has voted – and we know many people do not vote at all – voted for the president. You did not vote for the members of Cabinet. You didn’t vote for the chief justice or the judiciary. We all voted for Parliament, for parties submitting parliamentarians to occupy the National Assembly and the provincial legislatures,” she said.
“So, what that means is that when we exercise our democratic right, we exercise our democratic right to elect legislatures, we don’t elect the executive. And I think that’s a really primary thing because it means that as a parliamentary system, the executive derives its power out of Parliament.”
A broad theme of Zondo’s report related to the need to remove the executive arm of government from operational decisions that include procurement and appointment processes in state institutions that they oversee, as their political bias may interfere with otherwise credible processes.
Zondo further found that Parliament had failed to uphold its fundamental role of holding the executive accountable where such breaches of power occurred.
Are Parliament’s actions enough?
Secretary to the National Council of Provinces, Advocate Modibedi Phindela, outlined Parliament’s response to the Zondo report, and how its findings are being addressed.
“The recommendations of Parliament were categorised into two general types. The first involved possible statutory procedures and administrative reforms to reinforce Parliament’s status and its relationship with the executive. The second category related to state departments and agencies…and the respective oversight committees.”
Phindela noted Parliament’s rejection of one recommendation of the commission for it to consider opening up the chairpersonship of committees to members from parties other than the ANC, saying this was because the Constitution allows it to make its own internal arrangements. Zondo made the recommendation on the back of a finding that the ANC’s dominance in Parliament and its various committees made it difficult for other parties to have substantial impact on the direction of committees.
He also briefly addressed the controversial decision in September by the ethics committee to exonerate members of Parliament (MPs) Mosebenzi Zwane, Winnie Ngwenya, Cedric Frolick, and Employment and Labour Minister Thulas Nxesi, who were all implicated in the commission for various reason.
“Parliament’s ethics committee has processed allegations against MPs implicated in the Zondo commission report. Those who are found guilty of contravening the code were reprimanded by the relevant houses. There might be discussion insofar as the outcomes of the proceedings of the ethics committee are concerned. There might be disagreements insofar as the penalties imposed are concerned, but as a matter of fact, Parliament has taken action insofar as that is concerned.”
The institution had to consider thoroughly its response to the Zondo recommendations, Phindela said, and had to reflect on its shortcomings in terms of resolutions, as noted in the report.
“Parliament acknowledged that some challenges with the implementation of resolutions had their origin within the institution not only with monitoring, but with the technical nature of the resolutions in particular, that some resolutions are overbroad and lack particularity or specificity.”
Parliament should be more robust
For Mbete, however, the nature of our democratic system poses challenges for an institution such as Parliament, which should be more robust than it currently is but is bogged down by the political implications of actions by its members.
“Part of the core problem here is because of the ANC’s electoral dominance, because our first president was Nelson Mandela, that’s how we’ve framed our system. And the culture of the way that our system works, gives extraordinary pre-eminence that isn’t warranted in the Constitution, and that actually isn’t warranted in the laws. And what that’s allowed is for Parliament to then take a back seat.”
Parliament doesn’t interrogate, she added. “And what we’ve done is because of the ANC has electoral dominance, the ANC’s internal party processes, have become the culture by which our government works.”
Mbete further argued that senior ANC leaders that are higher up in the party’s pre-election list of MPs are likely to become Cabinet members. “The top person in the ANC’s list is the person who’s usually the president of the ANC, and who’s going to become the president of the country.”
Responding to a question about whether the public should call for the regulation of political parties, Mbete said that South Africa’s legislative framework around political parties and the parliamentary formation treats parties like private clubs. In addition, there is secrecy around the lists of candidates of a party that we as the public potentially vote for to be in Parliament.
She cited examples of countries that have had some regulation success in law, such as Germany and Mexico. “Both of those pieces of legislation govern things like what is the constitutional status and function of a political party, what is defined as a political party, and they give the bare minimum requirements for a political party’s constitution as well as provide some guidelines around ethics processes. So it is possible, it has been done.”
