Chairpersons and the Trias Politica: Parliament's role in the Separation of Powers priniciple
The Portfolio Committee on Public Enterprises kicked off its enquiry into allegations of corruption and maladministration into power utility Eskom on 1 August 2017. The committee has held several hearings and has called many stakeholders to give evidence. The enquiry will continue next year and at the conclusion of the hearings, the committee will deliberate and compile a report detailing its findings and / or recommendations. This report will need to be adopted by the National Assembly in order for the findings and recommendations to be binding.
The enquiry stems from Parliament’s constitutional function to hold the Executive accountable. Section 55 of the Constitution provides that Parliament has the power to pass legislation and must ensure that all executive organs of State in the national sphere of government are accountable to it. Portfolio and Select Committees must approve the budgets of the various departments. Prior to approving these budgets, hearings are held where the departments and organs of State brief the committees on how money allocated were spent. It is also an opportunity for the committee to guide the organs of State on how money is to be spent. The committee therefore has the power to curb wasteful expenditure. This is a rich multi-party process where the ideologies of various political parties become evident as MPs attempt to influence the process.
How Parliament passes laws and conducts its oversight over the Executive has serious implications for the principle of separation of powers. The conundrum in the main, is that the majority Members of Parliament (MPs) and the Executive are members of the same political party.
The Constitution is the supreme law of the land and sets out the powers of each of the arms of government, namely the trias politica. It also prescribes how the democracy or republic government should be constituted. The parliamentary system uses proportional representation, with voters voting for political parties.
The separation of powers is premised on the principle that each branch of government is independent, has a separate function and unique powers that the others cannot infringe upon. The doctrine therefore recognizes the functional independence of the three branches of government, namely, the legislature, the executive and the judiciary. In other words, it recognizes that there is a division of tasks between those institutions which make the law, those which implement the law and those which enforce the law. One should not usurp the functions and responsibilities of the other. The three branches are not hermetically sealed from each other and exhibit a degree of overlap. The principle, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation.
The question is, how is the separation of powers implemented in Parliament? During the National Assembly sittings, MPs can ask the Executive questions, MPs can suggest topics for debate, Ministers can make Executive statements and more recently Parliament amended its rules to include mini-plenary debates.
My view is that the separation of powers theory is best illustrated during committee meetings with Chairpersons and MPs engaging the executive organs of state on the making and implementation of laws and conducting oversight as to how organs of state spend the money allocated to them. Additionally, the Chairperson to the committee plays an exceptionally crucial role in this environment.
The challenge to the Chairperson is that he or she and the Minister and Deputy Minister are members of the same political party and in most situations the Minister will be senior to the Chairperson. There is nothing wrong with this scenario and is a usual practice in many democracies. The deciding factor here is whether the Chairperson will take his or her role seriously or whether he or she will become a cheerleader for the Minister.
It is therefore important that the Chairperson must be astute, judicious, smart and a good negotiator. He or she must have a good relationship with the Minister, Deputy Minister and Director General in order to be in a position to raise the issues identified by the committee. The Chairperson also carries a political mandate. A bill before the committee is very likely stem from his or her political party’s policies. In engaging the public during hearings and identifying issues on bills from stakeholders, the Chairperson must be confident to raise issues within the political party caucus and negotiate issues with his or her comrades.
A weak Chairperson will lead to a rubber-stamping of laws and budgets of the executive’s departments and not fulfilling the role of Parliament in the trias politica.
Although Chairpersons and MPs do not have the resources that the departments possess, they bring the voice of the people which is crucial in the separation of powers principle and inevitably South Africa’s democracy. In the Constitutional court (Concourt) case of the Doctors for Life International v the Speaker of National Assembly [2006 (12) BCLR 1399 (CC)], the Concourt implied that when legislation (or oversight of organs of State budgets) is passed in a legitimate manner, the general public would be more accepting. If the voice of the people becomes ineffective, the public will only have recourse or be able to have a meaningful say in government during elections which is only once every five years. The people should not have to wait every five years to participate in the governing of the country. This is not what the Constitution intends.
During the Eskom hearings, the committee received documents the evening before the hearings which would make it difficult for the committee to interrogate the evidence provided. Another stakeholder bluntly refused to attend the hearings. What is the recourse to the committee? The answer is very simple, the first stakeholder can simply be called again and if there is a refusal, section 56 of the Constitution provides that the National Assembly may summon any person to appear before it.
Many people lost their lives and many sacrificed their lives in prison and many more were exiled with the aim of freeing South Africa from dictatorship of apartheid. When freed from this regime, we adopted a world class Constitution to govern our democracy. I think, the burning question that Chairpersons and MPs need to ask themselves, is that when history is told, on which side they wish to find themselves?