Dr Mathole Motshekga, ANC chief whip, at the end of June wrote in ANC Today that, “parliament survives on the confidence and respect the public have in it, without (which) its dignity and integrity is eroded”.

The context was Cope leader Mosiuoa Lekota sticking to his guns that President Jacob Zuma had violated his oath of office by not protecting City Press and artist Brett Murray against ANC party leaders’ “fascist-style measures and tactics” in “The Spear” saga.

Motshekga’s response was that MPs should adhere to the rules of parliament to preserve its “decorum and prestige” as “a supreme representative institution of the people”. In this case, Lekota should have brought a “formal motion backed up by evidence”. Lofty and admirable sentiments.

Curiously, however, while Motshekga’s concern about parliament’s “prestige” in relation to members of the executive is now known, he has remained mum about two unprecedented developments in the same period which both undermine parliament’s integrity.

The first was the National Council of Provinces (NCOP) select committee on justice and security’s move to defer the negotiating mandates that the provincial legislatures had agreed after provincial hearings on the Traditional Courts Bill (TCB). The second was the continuing interference of the ministry and department of state security in the drafting of the Protection of State Information Bill.

Regarding the TCB, provincial delegates were not allowed to present their mandates to the committee meeting scheduled specifically for that reason. Instead, it was suggested that provinces could continue with public consultations.

This was done by conflating the national, NCOP-level public consultation, a distinct process still to be conducted by the select committee, with the provincial consultations, thereby undermining the outcomes of the provincial consultation process.

This seems a case of “consult until you get the answers you want to hear”. Some traditional leaders are seemingly unhappy with the answers that rural people gave to the legislatures, which led four of the nine provinces to reject the bill, while another four want wide-ranging amendments. Justice minister Jeff Radebe has since told the SABC that consultations are gathering momentum.

This is after the effort rural citizens made to attend the public hearings, even in the face of intimidation, as happened at a hearing in KwaZulu-Natal where traditional leaders tried to silence the few women present.

Judging from traditional leaders’ responses in the media, some seem unhappy about facts emerging in the public debates on the bill. For example, the Rural Women’s Movement (RWM) had the opportunity to make public its research on abuses of power that amount to blackmail.

The Traditional Leadership and Governance Framework Act (TLGFA) of 2003 empowers traditional leaders to administer government services. The RWM found, for example, irregular levies on access to government services such as housing.

Other arbitrary levies punish certain expressions of gender and sexuality by fining unmarried couples for living together, or fining unmarried mothers.

The TLGFA and TCB also re-entrench the boundaries drawn by the 1951 Bantu Authorities Act as demarcations of traditional councils and courts’ jurisdictions.

These facts fly in the face of traditionalist Phathekile Holomisa’s counterattack against opponents in which he calls traditional leadership “the one remaining truly African institution”. This would suggest an institution somehow removed from the processes of history, untouched by colonialism and apartheid. Sadly, history shows otherwise.

The public debates also expose the TCB as an attempt to shore up traditional leadership with authoritarian measures, suggesting the institution is not as roundly supported as certain leaders claim.

For example, the powers that the TCB concentrate in the hands of a “presiding officer” of the court do not exist in practice today, as traditional leaders are bound by decisions taken by the community or traditional council.

Hence the contention by the Alliance for Rural Democracy, a collection of civil-society organisations opposing the bill, that the current bill is not only unconstitutional but also violates customary law as practised.

Moving to the Protection of State Information Bill, unrelenting rebuttals by the ministry and department of state security has marred its progress through parliament, both in the meetings of the National Assembly committee and currently in the NCOP committee meetings.

In the last meeting, opposition MPs pointed out that the department kept questioning matters that all parties, including the ANC, had already reached consensus on. Among these is a limited concession by ANC MPs to allow for a public interest clause to protect disclosure of information that reveals criminal activity.

In response, both the department and chairperson Raseriti Tau (ANC) pre-empted aspersions on the process by paying lip service to the committee’s right to “make the final decision”. Still, the last meeting of the parliamentary term ended with MPs only able to agree to request an extension for its work in the face of a forceful ministry piling up “legal opinions” that serve its own narrow interests.

The usual, and procedurally acceptable, practice is for officials to draft as per MPs’ instructions. In this case, however, the department is obsessively blocking proper consideration of submissions by groups not driven by an agenda of secrecy and subterfuge. The committee’s response shows Lekota is not far off the mark with his observation of a “deepening asymmetry” in power between the executive and the legislative arms of government.

It seems the realisation is yet to dawn on the current crop of MPs that a legislature can only demand respect if it respects itself and its own processes.

This monthly column, which first appeared in Independent Group daily newspapers, is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.



Christi van der Westhuizen

Dr Christi van der Westhuizen is an award-winning political columnist and the author of the book Working Democracy: Perspectives on South Africa's Parliament at 20 Years, available for download...

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