Today Business Day was the first to publish an article by Paul Hoffman, who is with the Institute for Accountability in Southern Africa. With the kind permission of Business Day here are some random extracts from his submission addressed to the Speaker of Parliament – Getting to the bottom of SA’s parliamentary malaise.
“Dear Mr Speaker: Forgive my impertinence, but I have to tell you that when I read of your castigation of the honourable members of Parliament over whom you even-handedly preside, I was seized by the urge to yell out: ‘Give that man a Bell’s!’ While the scurrilous word on the street suggests that your comrades may be more used to quaffing something a little bluer, the fact remains that congratulations are in order for the stance you have taken in respect of the generally shoddy and all too often unconstitutional work Parliament does.”
“As making laws and holding the executive to account are the main duties of Parliament, one would have hoped that after 18 years of democracy some expertise and responsibility would have found its way into the system. At least enough to divine that it is not helpful to legislate new crimes into existence without specifying the punishments that will be applicable to them. ”
“A more recent example of the ailment of which you complain is the superficial manner in which Parliament allowed the inadequate SAPS Amendment Bill to slip by with 220 for, zero abstentions and only 57 against. Although in a form that is admittedly an improvement on what the executive offered the legislature, the bill remains hopelessly compromised and unconstitutional. ”
“There is no rocket science involved. The constitution says the chief of police ‘manages and controls’ the South African Police Service (SAPS). The courts say the Hawks are not operationally and structurally sufficiently independent to be effective corruption busters. Luthuli House says keep the Hawks in the SAPS. How then to have independent Hawks in the SAPS? ”
“No problem for the hapless committee members sitting on your right, whom you chastise so deservedly. Caucusing late into the night, they devise a legislative scheme in which the head of the Hawks can tell his boss, the chief of police, what to do and what is to be done in relation to corruption. This is devised to make him ‘sufficiently independent’ of political interference from politicians and political appointees such as the chief of police. Then they make the head of the Hawks answerable to a single politician, the minister of police, who has the power of appointment. As constitutional expert Pierre de Vos has remarked, this is the equivalent of putting Julius Malema in charge of the Tender Board in Limpopo. ”
“There are two obvious flaws in the amendments made: putting the minister in charge is hardly a way of ensuring independence from political manipulation for the Hawks. Side-lining the chief of police from his ‘management and control’ of the Hawks is plainly and straightforwardly inconsistent with the constitutionally prescribed requirement that the SAPS is led by the chief of police. A law giving someone else power over the manager and controller of the police, someone who is of lower rank within the police, can never pass constitutional muster. ”
“But, this is the thrust of what was pushed past you and on to the National Council of Provinces last month. Hopefully, someone there will see the flaw and return to the drawing board with an eye on the criteria the court has set for our corruption busters. ”
“Another philosophical, yet practically relevant, reason for the continuing inability to get laws ship shape and in constitutional format is that the value system that informs the policies that underlie the bills you see passing before you is not a value system that accords with the one agreed upon and reflected in the constitution. The tripartite alliance is hellbent on securing hegemonic control of all of the levers of power in society. It says so expressly in its strategy and tactics documents, which it disseminates on the ANC website and elsewhere. ”
“This is not what constitutional democracy in a multi party state under the rule of law is meant to encompass. It is the striving for that hegemonic control that leads to the passage of unconstitutional laws.”
“Closing down the Scorpions and creating the Hawks in the SAPS was the gravamen of a detailed Polokwane resolution, for example. The state law advisers, whose job it is to transform the policies created by politicians into law, and mere parliamentarians cannot be blamed for the unconstitutionality of this arrangement. Nor did they author the suspiciously motivated efforts to keep the anticorruption machinery safely under political control in the SAPS now that the courts have ruled that the legislation in place does not pass muster. It is the party bosses in Luthuli House who must take responsibility for that and for all other schemes that infringe upon or violate the values of the constitution. These ideas, cooked up in smoke-filled rooms in the bowels of Luthuli House, are what bring the house into disrepute as MPs try to hammer square “national democratic revolution” pegs into round constitutional holes.
“Mr Speaker, when you take on the party bosses in similar vein, and in public, I will say: “Give that man another Bell’s!”
“Especially so if you are so bold as to remind them of the advice of the late Kader Asmal, who bluntly said: ‘Scrap the national democratic revolution!’”
Today Business Day was the first to publish an article by Paul Hoffman, who is with the Institute for Accountability in Southern Africa. With the kind permission of Business Day here are some random extracts from his submission addressed to the Speaker of Parliament – Getting to the bottom of SA’s parliamentary malaise.
“Dear Mr Speaker: Forgive my impertinence, but I have to tell you that when I read of your castigation of the honourable members of Parliament over whom you even-handedly preside, I was seized by the urge to yell out: ‘Give that man a Bell’s!’ While the scurrilous word on the street suggests that your comrades may be more used to quaffing something a little bluer, the fact remains that congratulations are in order for the stance you have taken in respect of the generally shoddy and all too often unconstitutional work Parliament does.”
“As making laws and holding the executive to account are the main duties of Parliament, one would have hoped that after 18 years of democracy some expertise and responsibility would have found its way into the system. At least enough to divine that it is not helpful to legislate new crimes into existence without specifying the punishments that will be applicable to them. ”
“A more recent example of the ailment of which you complain is the superficial manner in which Parliament allowed the inadequate SAPS Amendment Bill to slip by with 220 for, zero abstentions and only 57 against. Although in a form that is admittedly an improvement on what the executive offered the legislature, the bill remains hopelessly compromised and unconstitutional. ”
“There is no rocket science involved. The constitution says the chief of police ‘manages and controls’ the South African Police Service (SAPS). The courts say the Hawks are not operationally and structurally sufficiently independent to be effective corruption busters. Luthuli House says keep the Hawks in the SAPS. How then to have independent Hawks in the SAPS? ”
“No problem for the hapless committee members sitting on your right, whom you chastise so deservedly. Caucusing late into the night, they devise a legislative scheme in which the head of the Hawks can tell his boss, the chief of police, what to do and what is to be done in relation to corruption. This is devised to make him ‘sufficiently independent’ of political interference from politicians and political appointees such as the chief of police. Then they make the head of the Hawks answerable to a single politician, the minister of police, who has the power of appointment. As constitutional expert Pierre de Vos has remarked, this is the equivalent of putting Julius Malema in charge of the Tender Board in Limpopo. ”
“There are two obvious flaws in the amendments made: putting the minister in charge is hardly a way of ensuring independence from political manipulation for the Hawks. Side-lining the chief of police from his ‘management and control’ of the Hawks is plainly and straightforwardly inconsistent with the constitutionally prescribed requirement that the SAPS is led by the chief of police. A law giving someone else power over the manager and controller of the police, someone who is of lower rank within the police, can never pass constitutional muster. ”
“But, this is the thrust of what was pushed past you and on to the National Council of Provinces last month. Hopefully, someone there will see the flaw and return to the drawing board with an eye on the criteria the court has set for our corruption busters. ”
“Another philosophical, yet practically relevant, reason for the continuing inability to get laws ship shape and in constitutional format is that the value system that informs the policies that underlie the bills you see passing before you is not a value system that accords with the one agreed upon and reflected in the constitution. The tripartite alliance is hellbent on securing hegemonic control of all of the levers of power in society. It says so expressly in its strategy and tactics documents, which it disseminates on the ANC website and elsewhere. ”
“This is not what constitutional democracy in a multi party state under the rule of law is meant to encompass. It is the striving for that hegemonic control that leads to the passage of unconstitutional laws.”
“Closing down the Scorpions and creating the Hawks in the SAPS was the gravamen of a detailed Polokwane resolution, for example. The state law advisers, whose job it is to transform the policies created by politicians into law, and mere parliamentarians cannot be blamed for the unconstitutionality of this arrangement. Nor did they author the suspiciously motivated efforts to keep the anticorruption machinery safely under political control in the SAPS now that the courts have ruled that the legislation in place does not pass muster. It is the party bosses in Luthuli House who must take responsibility for that and for all other schemes that infringe upon or violate the values of the constitution. These ideas, cooked up in smoke-filled rooms in the bowels of Luthuli House, are what bring the house into disrepute as MPs try to hammer square “national democratic revolution” pegs into round constitutional holes.
“Mr Speaker, when you take on the party bosses in similar vein, and in public, I will say: “Give that man another Bell’s!”
“Especially so if you are so bold as to remind them of the advice of the late Kader Asmal, who bluntly said: ‘Scrap the national democratic revolution!’”