REPORT ON PARLIAMENTARY OVERSIGHT AND ACCOUNTABILITY
Prepared by Hugh Corder, Saras Jagwanth, Fred Soltau
Faculty of Law, University of Cape Town
July 1999
CONTENTS
EXECUTIVE SUMMARY OF REPORT |
2 |
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CHAPTER ONE |
INTRODUCTION AND TERMS OF REFERENCE |
6 |
CHAPTER TWO |
A GENERAL FRAMEWORK FOR ACCOUNTABILITY AND OVERSIGHT |
8 |
CHAPTER THREE |
ACCOUNTABILITY, OVERSIGHT AND THE CONSTITUTIONAL IMPERATIVE – THE ROLE OF THE NATIONAL ASSEMBLY |
10 |
CHAPTER FOUR |
THE OVERSIGHT ROLE OF THE NATIONAL COUNCIL OF PROVINCES |
21 |
CHAPTER FIVE |
EXISTING PROCEDURES AND PRACTICES FOR EXERCISING OVERSIGHT |
26 |
CHAPTER SIX |
ESTABLISHING MECHANISMS TO ENSURE ACCOUNTABILITY |
40 |
CHAPTER SEVEN |
ACCOUNTABILITY AND INDEPENDENCE OF CONSTITUITONAL INSTITUTIONS |
55 |
CHAPTER EIGHT |
SUMMARY OF RECOMMENDATIONS |
64 |
APPENDICES |
EXTRACT FROM NEW ZEALAND PUBLIC FINANCE ACT |
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EXECUTIVE SUMMARY
Introduction
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all reports be received by a Central Receiving Office (a joint NA-NCOP office we recommend be established to co-ordinate the receipt, indexing and distributing reports received)
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National Assembly |
National Council of Provinces |
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|
1997 |
1998 |
1999 |
1997 |
1998 |
1999 |
Budget |
20 |
18 |
17 |
5 |
3 |
3 |
Policy |
22 |
19 |
16 |
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Structural |
13 |
9 |
5 |
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Current |
12 |
15 |
8 |
Perhaps more strikingly, Chart 1 also indicates that the level of committee oversight has been declining since 1997, in all areas except current events. While it must be remembered that data for 1999 only covers the first parliamentary term (February and March), and there was thus less time for committee briefings to take place, the pattern from 1997 to 1998 is the same.
The increase in the number of committees that received reports on current issues suggests that parliamentary committees may in fact be growing into their oversight roles, and are increasingly taking more active steps to ensure that executive accountability is pursued. As answerability is one of the key components of effective accountability, the extent to which parliamentary committees actively exercise their oversight role, as opposed to being the passive recipients of reports, is an important factor in determining whether effective oversight exists. Anecdotal evidence suggests that reports on current issues or recent developments are more likely to involve initiative on the part of the committee. As one member of the committee section explained, ‘If the briefing is on legislation or policy or the budget, the department will usually arrange to come brief us; but if they come to talk about something current it is because we have asked them to address the issue.’ In this context, it is clear that a greater number of parliamentary committees are becoming comfortable exercising the more active aspects of their oversight role.
While Chart 1 provides a general sense of the level of parliamentary oversight, it does not accurately reflect the magnitude of reports received by individual committees, as it only indicates the number of committees that received at least one report on a given subject in a certain year. For example, among the 13 portfolio committees that received executive briefings on structural issues in 1997, the portfolio committees on Foreign Affairs, Housing, and Public Enterprises each were briefed just once, while the Portfolio Committee on Defence held nine separate briefings with either the Department of Defence or the South African National Defence Force.
5.1.1 Ranking committee oversight performance
Here we look at the number and type of briefings that each parliamentary committee received from the executive to develop a conceptual framework for ranking the oversight performance of individual committees. Two specific dimensions of oversight activity - the number of policy reports vs. the number of current issue reports that committees receive - allow classification of their oversight behaviour into different categories. Policy and current issue reports will be used because both involve holding the executive body accountable for how it is handling its category-specific remit; structural briefings deal with how the executive body is handling its internal transformation aims, and are less important to assess from this perspective.
In addition, the degree of committee initiative implied in the number of reports given on current issues provides a useful point of comparison with policy reports. While current issue reports can be said to reflect the level of active, situation-specific oversight taking place, policy reports reflect a more long-term, or developmental, involvement in the executive’s policy creation and implementation. Using these categories as the two dimensions for the conceptual framework, therefore, gives a valuable perspective on how parliamentary committees are performing with regard to both active and developmental oversight of the executive body’s specific area of remit. This conceptual framework is illustrated in Chart 2 below.
Chart 2: Conceptual Framework for Oversight Performance
Current Issue Briefings |
Current issue briefings, no policy briefings |
Policy and current issue briefings |
No policy or current issue briefings |
Policy briefings, no current issue briefings |
|
Policy Briefings |
Committees are classified along the x-axis according to whether they have received at least one policy report, and along the y-axis according to whether they have received at least one current issue report. As the illustration above indicates, committees classified in the lower-left quadrant are those who received no policy or current issue reports from a department or statutory body, and can be considered as having weak oversight performance on these dimensions, while committees in the upper-right quadrant have been briefed at least once on both policy and current issues, and can be considered as having relatively strong oversight performance. The matrices below display the committees that fall into each quadrant for 1997 and 1998.
Chart 3: Committee Performance in 1997
Current Issue Briefings |
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Portfolio Committees Correctional Services Defence Foreign Affairs Housing Justice |
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Portfolio Committees Health Land Affairs Select Committees Constitutional Affairs & Public Administration Education 5 / 15% |
Communications Constitutional Affairs Education Environmental Affairs & Tourism Home Affairs Public Enterprises Public Service & Administration Safety and Security Sport and Recreation |
Select Committees Finance Labour & Public Enterprises Land, Agriculture & Environment Public Services Security and Justice Social Services 17 / 50% |
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Policy Briefings |
Chart 4: Committee Performance in 1998
Current Issue Briefings |
Portfolio Committees Foreign affairs Land Affairs Select Committees Public Services 4 / 12% |
Portfolio Committees Correctional Services Defence Environmental Affairs & Tourism Housing Justice Mineral & Energy Affairs Public Service & Administration Public Works Safety and Security Transport Welfare |
Select Committees Social Services 14 / 41% |
Portfolio Committees Sport and Recreation Trade and Industry Select Committees Constitutional Affairs and Public Administration Economic and Foreign Affairs Finance 6 / 18% |
Portfolio Committees Communications Education Health Home Affairs Labour Public Enterprises |
Select Committees Labour and Public Enterprises Land, Agriculture and Environment 10 / 29% |
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The figures in the corner of each quadrant are the number of committees listed in each quadrant, and the percent of all portfolio and select committees that they represent. There are several things this framework makes clear about the nature of executive accountability to parliamentary committees. First, in 1998 more committees were exercising active oversight of both policy and current issues than in 1997, as the number of committees in the upper-right quadrant has increased. The two matrices also provide an interesting perspective on the likely process of development of a committee’s oversight capability. In 1997 there are no committees that received current issue reports while not receiving policy reports (the upper-left quadrant), while there are 17 committees that received policy reports but not current issue reports (the lower-right quadrant). In fact, the only committees that received current issue reports in 1997 are those that also received policy reports - which indicates that there may be a progression in the development of a committee’s oversight capability. If a committee is only active in one area it is likely to be policy first, and from there the committee may develop the confidence, knowledge, or internal capability to pursue executive accountability on recent developments as well. The trend from 1997 to 1998 also bears out this conclusion - of the 17 committees that received only policy reports in 1997, seven remain in the same category in 1998, with seven having moved into the quadrants reflecting greater oversight activity, and only three dropping into lower oversight activity.
Another conclusion to be drawn from Charts 1, 3, and 4 is that the NCOP select committees seem to play much less of an oversight role than the National Assembly portfolio committees. In fact, the data shows that there are very few select committees that could be said to exercise active oversight of either government departments or statutory bodies, with one or two notable exceptions. This may be due to the lack of constitutional clarity regarding the NCOP’s oversight responsibilities. The oversight role of the NCOP is discussed elsewhere in this report.
5.1.2 Parliamentary oversight of statutory bodies
An analysis of reports given by statutory bodies, as distinct from government departments, shows that the dynamics of executive reporting are similar. 18 of 25 portfolio committees, and six of nine select committees, have been briefed by statutory bodies since 1997. Again, some committees are more active than others, both in terms of the number of statutory bodies that report to them, as well as in the number and types of briefings held. In general, those committees that have strong oversight performance of government departments tend also to be the ones exercising strong oversight of statutory bodies. Examples include the portfolio committees on Justice, Constitutional Development, and Mineral and Energy Affairs.
A wide range of statutory bodies have reported to parliamentary committees since 1997 - Parliament has received reports from over one hundred executive organs of state in the past three years. Interestingly, the number of statutory bodies that fall within a committee’s remit does not seem to be a determining factor in how successfully that committee exercises oversight. For example, the Portfolio Committee on Justice oversees at least twenty statutory bodies, and yet is able to exercise strong oversight. In its abbreviated 1999 session alone, the Justice Committee received briefings from 13 different statutory bodies.
There appears to be a broader accountability expectation for some statutory bodies than exists for government departments. Whereas most government departments only report to the affiliated portfolio or select committee, many statutory bodies or executive organs of state are held accountable by several different committees. Examples include the South African Police Service (SAPS), the South African National Defence Force, the Public Service Commission, and Eskom. The SAPS has reported to no less than six different portfolio and select committees since 1997.
5.2 Written reports
This section analyses examples of written reports submitted to parliamentary committees. As mentioned earlier, structural and resource constraints within the committee section of Parliament preclude a comprehensive analysis, but we have looked at several representative written reports to provide a more detailed perspective on their content and usefulness.
5.2.1 Procedures for recording written submissions
There are currently no formal or official structures through which reports are submitted to parliamentary committees. The process is at the discretion of the individual committee clerks, who may or may not have specific instructions from their committee chair on the handling of reports. In general, reports are submitted by government departments or other organs of state directly to committee clerks, who then distribute copies of the report to committee members. There are no official procedures or policies for recording, indexing, or tracking submissions.
In light of this limited structural system for handling submissions made to parliamentary committees, very poor records exist of written reports received by committees. Of the 25 portfolio committees and nine select committees that were analysed, only one has recorded all submissions made since 1997. For the remainder, records are either poor or do not exist. This obviously makes it very difficult to gain a comprehensive picture of the nature of written reports submitted to parliamentary committees.
Work is underway within the committee section to collate and bind all submissions made to committees since 1995. Originally scheduled to occur at the end of each year, the process was delayed due to lack of resources until the end of Parliament’s five-year term. When completed, the collection will unfortunately be far short of comprehensive, as turnover within the committee section and the lack of record-keeping procedures have resulted in the loss of many written submissions.
5.2.2 Review of annual reports
For these reasons, this analysis is primarily based on a representative sample of annual reports submitted by government departments and statutory bodies. Records of the Portfolio Committee on Justice, which has maintained a detailed index of all reports submitted to it since 1997, have also been used to provide some perspective on the volume of written reporting.
The number of written reports received by the Justice Committee since 1997 is shown in Chart 5 below (excluding written submissions on specific legislation). These numbers should not necessarily be taken as representative of all committee activity, since the Justice Committee is among the most active of all committees, and also has oversight responsibility for more statutory bodies than most other committees. Nonetheless, the number of written reports it has received can be helpful in understanding the nature of written reporting to Parliament.
Chart 5: Written Submissions to the Portfolio Committee on Justice
|
1997 |
1998 |
1999 |
Departments |
22 |
8 |
7 |
Statutory Bodies |
8 |
4 |
3 |
26 April 1999 |
Public Service Commission |
29 April 1999 |
Mr Selby Baqwa, Public Prosecutor |
30 April 1999 |
South African Human Rights Commission |
3 May 1999 |
South African Reserve Bank |
4 May 1999 |
Office of the Auditor-General |
6 May 1999 |
Commission on Gender Equality |
14 May 1999 |
South African Telecommunications Regulatory Authority |
14 May 1999 |
Freedom of Expression Institute |
7 June 1999 |
Independent Broadcasting Authority |