The establishment of the National Council of Provinces (NCOP) from a historical House of veterans or elders (Senate) and a House of Parliament that was perceived as less important and insignificant initially, was among the factors that made the NCOP less popular compared to the National Assembly (NA) at the beginning of the life of constitutional democracy in South Africa.
Ironically, even though the NCOP stands as an anchor of provincialism and worked as an incubator of provincial governments when these governments were new and fragile, the role of the NCOP among ordinary people, especially in rural areas, is still not well known. But through its commitment to its constitutional mandate of taking care of provincial issues at the national sphere of government and carrying that mandate in a manner that involves the people, people are beginning to know it.
Speaking at an NCOP summit some time ago, the first Chairperson of the NCOP Mr Mosiuoa Lekota said even Members of the Cabinet didn’t take the NCOP very seriously. “I had to rule at that time that Members of the national executive must appear in person to present their programmes and answer questions, those times have passed and there is now full acceptance of the NCOP, frequently described as a uniquely South African institution.”
Describing the genesis of the NCOP, Mr Lekota said: “When we abolished the Senate we realised firstly that it was based on the British’s House of Lords system and secondly, that it was not effective and appropriate for what we needed to achieve in South Africa, namely a cooperative form of government that gave the people greater access to governance and delivery of services to themselves.
“After studying various constitutions of other countries, we finally settled for the German Bundesrat model, even though that model had to be adapted to our specific South African conditions. The product became the NCOP,” he said.
Unlike the NA which has 400 members who are voted for by the public, the NCOP has 54 permanent delegates and 36 special delegates. Each province has 10 delegates, four special and six permanent. Each provincial delegation is headed by the Premier of the respective province, who is one of the special delegates. But because Premiers have other responsibilities and are hardly in Parliament, the provincial delegations are led by Provincial Whips when in Parliament. Special delegates rotate on the basis of specific mandates form their provincial legislatures.
The NCOP is one of the most important vehicles of local government, in addition to representing provincial interests. It epitomises the Constitution’s commitment to cooperative governance – bringing together all three spheres – national, provincial and local governments under one roof.
The NCOP has a different oversight role from that of the NA, as set out in the Constitution. Section 42 (3) of the Constitution mandates the NA to represent the people and to ensure government by the people under the Constitution by passing legislation, scrutinising and overseeing executive action.
Section 42 (4) mandates the NCOP to ensure that provincial interests are taken into account in the national sphere of government. The NCOP exercises a particular oversight with regard to local government. Section 139 of the Constitution empowers provincial governments to intervene in the running of a municipality. When such interventions do occur, notice of them must be tabled in the NCOP and the NCOP must approve and review these interventions and make recommendations to the provincial executive.
For legislation to be passed in the NCOP, five of the nine provinces must vote in favour of the said legislation, except if that is a Constitutional Amendment (Section 74), in which case it will require the approval of six provinces.
While the primary function of the NCOP is to represent the views of provinces, it also serves as a House of review. On few occasions it sends back legislation to the NA with suggestions.
As it celebrates its 20th anniversary this year, the NCOP continues to evolve. One of the current debates which were also an issue in its earlier years, is the question on the size of the House.
The first Sitting of the NCOP was on Thursday, 6 February 1997 where Mr. Lekota was elected Chairperson with Mr Bulelani Ngcuka as the permanent Deputy Chairperson. Dr Frank Mdlalose, who was the Premier of KwaZulu-Natal at that time, became the rotating second Deputy Chairperson, a position that rotates among the Premiers of provinces.
This is also one other question that is likely to be reviewed as the NCOP continues to evolve, the role of the second Deputy Chairperson is not clearly defined and to make matters worse, Premiers have busy schedules of running provinces and are hardly in Parliament.
Through the Taking Parliament to the People programme, the NCOP has become hands-on in governance matters and has been successful in pushing government to speed up delivery of services in rural areas.
Through Taking Parliament to the People the NCOP has been able to uncover huge backlogs in delivery of basic services and heard about numerous allegations of corruption, bribery, nepotism, maladministration, inefficiency, poor communication and leadership, underspending (which results in incomplete projects) and lack of infrastructure maintenance in the provinces.
The Taking Parliament to the People programme was initiated in 2002 to promote education about Parliament and to enhance public participation, with the aim of providing the public with an opportunity to have a say on matters affecting them.
Through this programme thousands of ordinary South Africans, mostly from the marginalised communities, have had the opportunity to interact with Members of Parliament on issues of service delivery and governance. The programme affords ordinary South Africans to speak for themselves – not through a representative.
The African Peer Review Mechanism country review of South Africa cited Taking Parliament to the People as one of the best practices when it comes to the promotion of democracy, public participation and political governance.
This year Parliament marks 20 years of the Constitution and 20 years of the establishment of the NCOP, and the Chairperson of the NCOP Ms Thandi Modise said the celebrations should be used to reflect on whether South Africa’s democracy was still on the right track.
During Parliament’s Budget Vote debate in the NCOP in June, Ms Modise said: “We are supposed to celebrate (but I suspect we are actually more “observing” the 20 years of our Constitution and the 20 years of the establishment of NCOP. We are supposed to be observing, studying, applying, criticising the functioning of the NCOP and we should be making recommendations on the capacity of the NCOP to make a contribution to our democracy.”
These studies, she said, would indicate whether our democracy was still on the right track, whether sections of the Constitution should be amended or revised.
“If we do this – do we think Parliament enjoys enough trust from the people to do this job on their behalf? Does Parliament have the capacity to self-review and self-correct? If not, why?” she asked.
She also spoke about aligning the work of Parliament to the global, continental, regional and national development agendas.
By Sakhile Mokoena
4 August 2017
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