Delegates,
During the constitution-making process that began in 1994 there was much debate about the structure and role of Parliament. A number of important objectives influenced party contributions to the chapter on Parliament.
Most parties agreed that South Africa had to create an open institution accessible to the public and accountable to the public. The secret closed Parliament of apartheid was to be a thing of the past. It was also agreed that Parliament would hold the executive accountable and thus ensure the executive serves the people.
Parliament was to have vibrant powerful institutions for accountability and oversight – portfolio and select committees to ensure the duties assigned by the Constitution are exercised.
To ensure the voices of all spheres of government play a role in national law making, two Houses of Parliament would be established.
The National Council of Provinces (NCOP) is one of the houses of Parliament. It represents the interests of the nine provinces, and to a lesser extent, local government in the national sphere. The NCOP considers all legislation. It has important powers when considering section 76 legislation, which is legislation concerned with concurrent functions and thus has an impact on provinces.
From the inception of the democratic dispensation there has been ambivalence about a second House of Parliament. The Interim Constitution of 1993 retained a Senate, but it was found inadequate for the new and final constitution.
The NCOP was a new institution that did not have an exact replica in the Senate. This uniqueness has posed challenges to persons who seek to definitively elaborate its exact nature and function.
The NCOP was seen as an odd South African political institution and it has suffered from uncertainty and ambivalence from party leaders and member of the NA. Those who observed the process of the constitutional negotiations will recall that the NCOP came about as a result of often unwelcome compromises.
Eventually the negotiators agreed that there was a need to create a house that would both draw together provinces in the national legislative process so that at no time would we have provinces negatively affected by national legislation and also ensure that the consideration of legislation is supported by an infusion and knowledge of provincial interests and concerns.
After considerable debate about whether a democratic South Africa should be constituted on federal lines, the 1996 Constitution adopted three "distinctive, interdependent and interrelated" spheres of government. "Cooperative government" followed the German model, emphasizing concurrency, provincial delivery of national policies, and provincial representation at the centre. All of this in one united nation.
The NCOP has developed a range of procedures and mechanisms to give effect to its complex constitutional mandate. The mandate is complex yet stark in its simplicity. The NCOP's role is to ensure that the provincial interest is considered and incorporated in the national forum.
In addition to being the national forum for provincial interests, the house was given a range of legislative tasks. It has committees that are open and accessible. It has the power to seek reports on policy implementation from the executive and a range of bodies and public institutions. The tools for exercising this mandate are public hearings, questions, committee research, and review.
There have been two main areas of concern in the NCOP's work: facilitating public participation, and exercising executive oversight. Public participation is vital in a democracy. However, over the last ten years we have become more sophisticated in what we understand by public participation.
When I was chair we first took "Parliament to the People". This was an effort to include marginalised communities in law making to avoid the likelihood of Parliament becoming an elite institution.
The NCOP has spent a considerable amount of time and money in understanding its role in executive oversight. Our understanding of oversight was limited - one could even say weak. It was also made difficult by the perception that NCOP was a nuisance to be tolerated.
We knew that the NCOP's oversight role had to be strengthened. But how? What could 54 permanent members do that 400 members did not do on the other side?
Yet the house has succeeded in playing a very important part in the process of reviewing the performance of government and the impact of our policies and laws on our provinces. It has served us well as a measure of whether the decisions that we take at national level are actually implementable at both provincial and local government level.
Yet from time to time the view has been heard that members are reluctant to ask ministers questions for fear of being labelled hostile. Part of the problem arises from the fact that the opposition has been allowed to usurp accountability as their domain.
I can assure you that ministers see the parliamentary role of oversight as a positive part of policy development and national reporting.
In 2004 the NCOP "Vision 2009" document set a target that within three years the NCOP would be spending 70% of its time on oversight. The remaining 30% of the NCOP’s time would be spent considering legislation, it declared.
I don't know if the NCOP reached that target in time - or how it knew when it had been reached - but I think it a commendable target and I hope that efforts at achieving or expanding success with this objective will be taken up during this term. Joyce Kgoali drove the Vision 2009 process. I remember her with great affection.
In closing we are still a young democracy. We are still improving the way parliament oversees the executive and the way the public participates in making laws.
Interested bodies make submissions in NCOP committees. Yet the NCOP's committees seldom summarise their views on a policy or a law into a published report and enter into a written dialogue with ministries over laws and their implementation and non-implementation.
It would be an immense step forward if they did. And then ministries would be required to respond in turn. This might assist us overcome the unintended consequences of policies. When policies fail we blame the failure on unintended consequences. In future we could blame policy failures on NCOP committees that fail to foresee the problematic areas for implementation.
