ANC parliamentary committee members could become more cautious about questioning the executive for fear of losing favour with the leadership  

he controversy surrounding the role Parliament's standing committee on public accounts (Scopa) will play in the inquiry into government's R43-billion arms deals and the determination of the African National Congress to whip its MPs into line present considerable danger to one of the major reforms in the legislative processes - the open and accountable committee system.

ANC MPs could become even more reluctant to question the executive, even if - technically - this is their constitutional duty. They may be more inclined to support official positions in case they suffer the same fate as ANC MP Andrew Feinstein, who was abruptly demoted once the Cabinet decided Scopa's approach to the arms deal amounted to an attack on the government's role in it.

MPs from the ANC and its alliance partners could become much more cautious about reaching consensus with opposition parties - particularly the Democratic Alliance - in parliamentary committees and less keen on attempting to find common positions, in a reversal of current practice.

The decision of ANC chief whip Tony Yengeni to replace Feinstein on the committee with his deputy, Geoff Doidge, in the wake of strong criticism of Scopa by the Cabinet, leaves little doubt that greater control over ANC MPs who dare to be independent is at the top of his agenda.

How else can one understand his statement that "some people have the notion that public accounts committee members should act in a non-partisan way. But in our system, no ANC member has a free vote"? If Scopa, including its ANC members, uncovers corruption in a government department but the ANC minister denies it, will they be denied a free and independent vote? Or will they merely be the lapdogs of the leadership?

These are serious questions brought to the forefront by the arms deal. Yet paradoxically, the controversy could help clarify Parliament's role in holding the executive accountable and the powers its committees should have.

The reforms to the committee system after the introduction of democratic government in 1994, and the implication of these changes, were initially largely unnoticed. Gradually, however, the committees have been dubbed, correctly, the "engine room" of the new Parliament.

In the pre-1994 Parliament, committee meetings were closed to the media and to the public. Their proceedings were held in secret and decisions were only disclosed publicly after they had been taken.

Today, however, meetings of all but the joint standing committee on intelligence are held in the open. Journalists report on commitee proceedings and decisions and the public are entitled to attend hearings. Indeed, accessibility became the hallmark of the committee system after 1994.

The committees may initiate and prepare legislation. They analyse and amend Bills submitted to them by Cabinet. They have to ensure that all executive organs of state are accountable to Parliament and have oversight over the national executive authority. Committees of the National Council of Provinces (NCOP) can initiate or prepare legislation affecting the provinces.

The rules of Parliament have also given the committees extensive powers. These include the power to "monitor, investigate, enquire into and make recommendations relating to any aspect of the legislative programme, budget, rationalisation, restructuring, functioning, organisation, structure, personnel, policy formulation or any other matter it may consider relevant, of government department or departments falling within the category of affairs consigned to the committee".

There are 45 parliamentary committees, including 25 National Assembly portfolio committees - one for each government department. The NCOP has 11 select committees, nine of which broadly correspond to government departmental clusters.

Joint committees, consisting of members from both Houses, are also appointed, such as Scopa. Statutory committees, created by an Act of Parliament, and constitutional committees, created in terms of the Constitution, are also joint committees.

Ad hoc committees are formed when there is a need for an investigation into a specific issue. An ad hoc committee established the formula for the new system of public funding for political parties. The committee on members' interest and the sub-committee on ethics considered proposals for a register of MPs' interests and a code of conduct.

Some ad hoc committees act independently and efficiently, but the work of other committees seems to drag on ad infinitum, with no clear results.

The committee system has established a link where the range of organisations and individuals that constitute civil society can meet the government and legislators in the law-making process. It has also led to the establishment of monitoring groups, a network of advocacy bodies and lobbyists who closely observe the process and try to exercise influence over committee decisions.

These range from commercial lobbying and public relations companies to interest groups, such as in business, labour and religion, and to NGOs concerned with issues such as human rights and the environment.

Three of these NGOs - the Human Rights Committee, the Political Information and Monitoring Service of the Institute for Democracy in South Africa and the Black Sash - have formed a joint operation called the Parliamentary Monitoring Group, which during sessions sends up to 150 volunteers a week to monitor committees. Through the Internet it provides unofficial reports about the work of the committees.

Many MPs feel the committees are seriously under-resourced. A considerable expansion of their work has resulted in an increase in the initial 11 staff members serving 30 committees to 80 people and a budget of about R8-million for each committee. Even then, this is an average of fewer than two officials per committee.

In spite of the obvious tensions between Scopa and the Cabinet over the inquiry into the arms deals, the conflict has certainly contributed to clarifying the role of Parliament's committees.

For instance, Speaker Frene Ginwala outlined her interpretation of the position in a letter to Deputy President Jacob Zuma on January 29. She wrote: "I want to take the opportunity to express my view that it is within the competence of the legislature after due consideration of the legal and procedural requirements to make a recommendation to the executive within its jurisdiction, which the executive may choose to accept or reject.

"Parliament's authority is persuasive. The legislature cannot instruct the executive, except to the extent that legislation it enacts defines and sets the legal framework within which the executive undertakes its constitutional responsibilities.

"Parliament retains oversight over the manner in which the executive and state organs perform their functions," she wrote.

In other words, Parliament can pass laws that will define what the executive can do but it cannot tell the Cabinet what to do - although it may well be "persuasive".

As Parliament's law adviser, Anton Meyer, said at the Scopa meeting on January 29: "Parliament can call the executive to account, but this does not mean giving it instructions. If Parliament wants to give instructions to the executive, it must first pass legislation."

Issues that have emerged from the controversy include what should happen if a committee uncovers criminal activities or if substantiated allegations of misconduct are made about a member of Parliament.

However, the dispute over Scopa's investigation into the arms deals is bringing sharply into focus the power of committees and their role in ensuring the executive is accountable to MPs and, through them, to the electorate.

It would be sad if one of the consequences of the controversy is a reduction of the effectiveness and independence of MPs from the ruling alliance within those committees. Since 1994 the committees have played a crucial role in making Parliament and the executive more "accountable" and more "transparent" than they might have been without them.  

With acknowledgement to Barry Streek and the Mail & Guardian.