October 23, 2018

Has SA got time for the snail’s pace of parliamentary law-making?

Seasoned parliamentary journalist JAN-JAN JOUBERT looks at the painfully slow progress of a critical piece of legislation, the Mineral and Petroleum Resources Development Amendment (MPRDA) Bill and its protracted journey through the parliamentary process, and warns that there are too many delays in Parliament's key mandate, which is after all to pass legislation.

The Mineral and Petroleum Resources Development Amendment (MPRDA) Bill was supposed to be a showpiece of the South African government’s vision for the transformation of the country’s resources to benefit the many, not the few, and address the imbalances of the past, as the Constitution demands.

It was launched with much fanfare and rhetoric, but like so many grand initiatives these days, it has faltered and talk in both the market place and the corridors of political power is that Minerals Resources Minister Gwede Mantashe will ask Cabinet to agree to withdraw it before the year is out.

Sadly, the MPRDA Bill is but one of the many indications that our country’s parliament and the legislative process it engenders is broken, limping along at best. What can we learn from the MPRDA process, and what is to be done to fix the parliamentary process of which it is indicative?

The MPRDA Bill had as its aim to ensure greater control over South Africa’s mineral wealth for its people, as represented by their elected democratic government and their democratised state. It also set out to ensure more beneficiation of the country’s mineral wealth, so that less raw product would be exported and greater industrialisation would follow, leading to better employment levels.

The MPRDA Bill is but one of the many indications that our country’s parliament and the legislative process it engenders is broken.

Its drafters realised that the production of iron consisted of ore, energy and labour. What it did not always appreciate, was the powerful reality of capital and market forces, especially in a globalised world.

Also, as we will see, the ruling ANC has now realised that the Mining Charter might be a more effective way of realising its aims, to the extent that such aims are practicable within the confines of the local and global legal framework, and the realities of economic power politics.

Two blows have landed on these plans. First, in 2014, the president at the time, Jacob Zuma, received legal advice that aspects of the MPRDA would not pass constitutional muster. including on procedural grounds. Also, if rather belatedly, someone in government woke up to the fact that the World Trade Organisation (WTO) has rather strong rules regarding the limitation of exports.

So Zuma sent the MPRDA Bill back to parliament for amendments, and the bill was put on the back burner for a few years. This interregnum was lengthened to no small extent by infighting within the ANC between, on the one hand, ideologues on the Left of the ruling party desiring greater state leadership and control in the economy and, on the other hand, pragmatists supported by the mineworkers’ lobby, who realised job losses would increase as investment in mining was sure to decrease.

All the while, cash flush global and local oil and gas interests were lobbying very successfully to have the aspects of the bill curtailing their powers and profit possibilities excised from the bill. Their message was united, crude and effective – continue with the bill as is and we’re out of the country. It worked – new content was drafted with industry participation and eventual industry buy-in.

Upon the return of the MPRDA Bill to parliament, the procedural irregularities were corrected – albeit with a new legal minefield opening up as the Department of Mineral Resources insisted – possibly illegally – to participate in the public hearings on the matter. Also, the National Council of Provinces (NCOP) sent the bill to provincial legislatures for their mandate before the public participation process, which many consider a rookie error open to legal challenge.

Be that as it may, yet another gremlin raised its head. When consulted, the National House of Traditional Leaders, whose members are often faced with the practicalities of state ineptitude at grassroots level, pronounced in favour of an independent regulatory body instead of the levels of state control ruling party ideologues foresaw, thereby overturning the apple cart somewhat.

The parliamentary portfolio committee on mineral resources, however, refused to change anything substantive in the bill, again proving the power and hold of ideological solidarity in the ANC, so the can was kicked back to the NCOP, where it has become stuck ‑ or unstuck, if you wish.

The sad tale of the MPRDA Bill is, however, just one example of the mess in which Parliament finds itself, possibly as a result of the ANC rapidly running out of ideas, idealism and cohesion after 25 unbroken years in parliament. It happens to many ruling parties after long periods of remaining in government – ideas become staid, caucus members age and not enough new blood enters.

Examples abound – think of Congress in India, the Conservative Party in Britain by the early 1990s, the CDU in Germany at the moment or even the National Party in the 1980s and the United Party by 1946 in apartheid South Africa.

Anyone doubting how entrenched the lackadaisical attitude of the current parliament under the direction of the current governing party is, need only attend the weekly programming committee meeting on any given Thursday at 08:30 during the parliamentary session.

Between the opening of parliament and the end of August this year, parliament had passed the grand total of exactly seven bills, two of which do not really count because they are the Division of Revenue Bill and the Appropriation Bill, which just formalise the budget.

The only bills creating new law which have been passed this year are the Liquor Products Amendment Bill, the (admittedly important) Extension of Security of Tenure Amendment Bill, the Public Audit Amendment Bill, the Political Party Funding Bill and the (extremely important) changes to four pieces of labour legislation to create the mechanisms for a national minimum wage. The minimum wage legislation might be challenged in court, though.

This does not mean that there is a shortage of legislation waiting to be dealt with. It is just not done with any urgency whatsoever. By the end of August, there were 53 pieces of legislation before parliamentary committees, but the estimation is that many – maybe even most ‑ of them will lapse at the end of the fifth democratic parliament (when a new parliament is elected next year).

Some of these bills have been before committees for years, with minimal movement, if any. The reasons for the lack of movement are hard to come by officially, and committee chairs (who are with the exception of opposition MP Themba Godi, who chairs SCOPA, all well-paid ANC MPs) are masters at finding less than candid reasons why legislation is not dealt with effectively. The truth is simple – were there more political will, vision and discipline, the work would be done.

If you wonder why it isn’t done, wonder no more. With the exception of a select few, committees tend to start late, and there is ample evidence (although it is hotly and viciously denied) that especially government MPs do not study documentation critically and forensically, if at all. Long-winded inputs (when the current ambassador to Jamaica, Lumka Yengeni, was chairing labour, she would sometimes talk for more than half an hour before the business of the day would start!) rather than sharp questions are the order of the day, and the most frustrating part of attending these sessions is the lack of clear consequence management – even if an official is given a tongue-lashing, it is mere words ‑ there are no disciplinary consequences and the same problems persist.

The worst example of a committee doing remarkably little about the legislation before it is the portfolio committee on international relations and co-operation – not a committee which meets very often in the first place, and thus a bit of an oxygen thief in parliament. Its members, however, are paid the same as the more industrious committees, of which more below.

The only bill before it is called the Foreign Service Bill and it has been languishing before the committee since 4 November 2015. After some heated words from the programming committee, the bill, which really is a relatively simple one, will now at last be finalised this year.

There are committees which function well and work hard. The best example is the portfolio committee on police, which meets often, has some committee members who actually know their stuff, sets dates by which the clear actions the committee demands must be finalised and does strict consequence management. Committees like justice, finance, agriculture and labour also have some highly competent MPs on them, who are specialist experts in their field and can keep government officials and ministers accountable.

One of the reasons why parliament functions poorly as a legislative organ is that its recesses, constituency periods and oversight periods are too long. This results in not enough time to deal with legislation, as too much work is crammed into the available time, and the quality of inputs suffer. An example is the budget vote debates, which are rushed through in about three weeks, often three at a time in three different venues. It does not afford MPs the opportunity of really knowing much beyond the portfolio committee in which they serve.

Over the last four years, parliament has become much better as a platform for debate and an organ of oversight. As the MPRDA Bill as one example among many shows, however, it has fallen short of what South Africans should expect from their democratically elected legislators as far as the actual legislating is concerned.

Jan-Jan Joubert has covered parliament since 2001 and is the author of the book Who will rule in 2019?

 

Last modified on Tuesday, 18 September 2018 15:53

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