Some observers are cynical about the role of parliament in South Africa today, both in general and in particular when it comes to the role of the upper house or National Council of Provinces (NCOP) to which legislation approved in the bigger National Assembly, or lower house, is referred before usually being passed into law with a signature from the President. Cynics point to the pernicious influence of the party list system which is used to keep parliamentarians on side, to the omnipotence of Luthuli House everywhere except in the Western Cape and to the “rubber stamp” characteristics that the legislature has grown since the heady days when Thabo Mbeki was President and Jacob Zuma leader of the ANC. A Prague spring of short duration was experienced then as cabinet members felt themselves and their policies being thoroughly interrogated for the first time in a long time. This ended with the short Motlanthe presidency.

There are however signs that the NCOP does not regard itself as a rubber stamp either for the National Assembly or for the ideas that come out of Luthuli House. Only two ANC members of the National Assembly were prepared to abstain on the controversial Protection of State Information Bill. They got into trouble with the party bosses for so doing. Unexpectedly, the Bill has not had a smooth ride in the NCOP. After taking its content to the provinces as part of the public participation process that is an integral part of our constitutional democracy, the NCOP has suggested far reaching amendments to the Bill, which is sponsored by the Department of National Intelligence. The ANC caucus in the NCOP is punting changes that would come close to the “public interest defence” which is at the heart of the agenda of the Right To Know campaign against the Bill. The Department is having none of this and has stoutly defended the point of view that it champions in a manner that has wags dubbing the draft the Protection of Corrupt Politicians Bill.

While leaders in the NCOP concede that it is the right of the department to defend its formulation of the Bill, their call now is to put on the thinking caps and come up with a formulation that is both constitutional and acceptable to all interested parties. The threat of a constitutional challenge to the legislation seems to be weighing heavily upon the ANC caucus, which enjoys a comfortable majority in the NCOP. Recently the Chief Whip in the National Assembly had occasion to castigate parliamentarians for the shoddiness of their handiwork, which has led to a variety of successful court challenges to the constitutionality of laws which are eventually struck down in the Constitutional Court for their want of compliance with the values and principles of the Constitution. There can be little doubt in the minds of the members of the NCOP that the Right To Know campaign is watching their every move with eagle eyed sharpness with a view to mounting just such a challenge if there is any inkling of unconstitutionality. Even Mary Robinson has weighed in with a pointed observation that corruption flourishes when secrecy is the order of the day. Her pithy remark highlights a possible motivation for the Bill. Time will tell whether the NCOP revolt or the department will win through and then whether the end product will face a constitutional challenge.

Another bill which is currently on the table in the NCOP also has relevance to the attitude of the ANC toward corruption. It is the SAPS Amendment Bill which seeks to address the judgment in the Glenister case by effecting minimalistic changes to the legislation which gave birth to the Hawks. These changes are intended to make the Hawks sufficiently independent to be an effective anti corruption entity or Ace. The court determined deadline for this bill is 18 September 2012, so the NCOP is going to have its work cut out to meet the deadline.

Once again the constitutionality of the bill has been questioned with all but one of the submissions to the National Assembly suggesting that it would be preferable to have the anti corruption entity (Ace) housed almost anywhere except in the SAPS. The court itself pointed out that the characteristics of a good Ace include specialisation, specific training of personnel, independence from political manipulation or influence, sufficient resources to function fully and security of tenure for the personnel waging war on corruption. The ANC is allergic to any formulation in which Luthuli House loses control of the Ace, hence the minimalistic approach, notwithstanding lip service to the priority accorded to the fight against corruption.

The problem facing the NCOP is that the panel beating of the Bill in the lower house has rendered it unconstitutional. This arises because the Constitution requires that the National Commissioner of Police “must exercise control over and manage the police service”. In order to address the need for the Hawks to be independent, the bill now gives the head of the Hawks the power to second guess the National Commissioner. That is obviously inconsistent with the Constitution and it leaves the NCOP in something of a bind. Delete the offending provisions and the judgment is not complied with to the extent that it requires a sufficiently independent Ace. Leave the offending provisions and the express words of section 207(2) are flouted, illegally and unconstitutionally so.

It is very clear that Luthuli House wants, when the faithful assemble at Mangaung in December, to tick the box next to the Polokwane resolution that says, in effect, dissolve the Scorpions and create the Hawks in the police. The cadres of Luthuli House deployed in the NCOP have a problem. They have to find a way to create a constitutionally compliant piece of legislation that satisfies the requirements of the Glenister judgement and also keep their political bosses happy. This, it is respectfully suggested, is legally impossible. If the National Commissioner of Police is in charge, the Hawks are manifestly not sufficiently independent in the circumstances that prevail. If the Head of the Hawks is in charge, then an untenably unconstitutional result in inevitable. Check-mate.

It can reasonably be anticipated that both pieces of legislation are going to pose conundrums for Luthuli House. The manner in which the NCOP approaches them in its deliberations between now and the ANC party congress in Mangaung in December will be a good barometer of the direction in which the ANC is heading. A rejection of the NCOP amendments for the secrecy bill and the retention of the Hawks within SAPS will be an indication of business as usual in Luthuli House. A postponement to next year of either or both bills or their radical revision in the NCOP will be an indication of changes in the offing in ANC policy. It will be easier to postpone the secrecy bill as there is no court imposed deadline that relates to it. Postponing the SAPS Amendment Bill to next year will involve an application to the Constitutional Court in which reasons for the tardiness and the delay in processing the bill will have to be found and furnished to the court by way of explanation for the request for an extension in time. Most of these permutations are indicative of a new and more muscular role for the NCOP. This is good news for constitutional democracy in South Africa.

Paul Hoffman SC
10 August 2012.