Dear Mr Speaker,

Forgive my impertinence, but I have to tell you (and everyone else) that when I read of your castigation of the honourable members of parliament over whom you even-handedly preside in your official capacity, 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 that 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.

The more recent gyrations of parliament around the Protection of State Information Bill are also remarkable. Professor Ben Turok and the redoubtable Gloria Borman, ANC stalwarts in parliament, abstained when this bill was put to the vote in the National Assembly. For their pains they got into trouble with the party disciplinary machinery and now face charges that could, if things go badly for them, see them expelled from the ANC with all the ignominy that Julius Malema so publicly feels. This, for them, is no small matter; membership of the party is a necessary pre-condition of their membership of parliament, so they will lose their seats and with them their parliamentary incomes if the disciplinary committee takes a dim view of their stance.

When the selfsame Bill reached the National Council of Provinces it was taken on a whirlwind tour of the country. Then, to the surprise of everyone concerned about the right to know and the necessary access to information that this right entails, the ANC members in that house proposed a series of radical amendments that go some way toward assuaging the uneasy feelings and harsh criticisms that the Right2Know campaign and others have regarding the constitutionality of the Bill.

So, two abstainers in your house are vindicated by the changes later made, yet get into trouble with the ANC for voting their consciences. Curious.

A more recent example of the ailment of which you complain is the superficial manner in which the house over which you preside 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 SAPS. The Courts say that 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 SAPS? No problem to 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 Prof 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 useless amendments made: putting the Minister in charge is hardly a way of ensuring independence from political manipulation for the Hawks. Sidelining 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 in a month of Sundays pass constitutional muster. But, this is the thrust of what was pushed past you and on to the National Council of Provinces in May. 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, so sorely missed since the demise of the Scorpions.

At a more structural level, it would seem that one of the causes of the general parliamentary malaise you bemoan is that the system of proportional representation, which ought to have been (but was not) replaced after the 1994 elections, is to blame for the mistakes which you have so pertinently drawn to the attention of the public and the members of the house. The party bosses, not even in parliament, continue to call the shots, and those willing to serve in parliament remain emasculated (with the rare and wonderful exceptions noted above). They are kept in place by the party list system in which their role is to toe the party line on pain of expulsion from the party and then, inevitably, from the house too. The type of person who is prepared to live and work in a structure that operates in this way is not likely to be the type of person who critically examines the constitutional compliance of what the boss orders her or him to do. This involves professional suicide induced by the power of the party list system. Most careerist politicians are immune to this affliction.

Another philosophical, yet practically relevant, reason for the ongoing 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 that agreed upon and reflected in the Constitution. The tripartite alliance is hell bent 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 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 can not be blamed for the unconstitutionality of this arrangement. Nor did they author the suspiciously motivated efforts to keep the anti corruption machinery safely under political control in 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 (like the secrecy bill) that infringe or even 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 parliamentarians 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!”

Paul Hoffman SC
31 May 2012.