Spirit of our constitution is increasingly ignored
Max Sisulu did not particularly want to become Speaker of the National Assembly. He took the job because he is that loyal cadre that others pretend to be, who does what the ANC tells him to do.
He spends as little time in the speaker's chair as he can, and does not appear to enjoy the company of the hacks deployed by a party that uses some of its seats in the National Assembly to reward the loyalty of otherwise unremarkable people.
Sisulu's predecessors, Frene Ginwala and Baleka Mbete, used the job to give them stature - Ginwala with more substance and less popularity than Mbete, who seemed to be more interested in using the building and her budget to stage other events than she was in the actual business of legislation.
Sisulu, like Govan Mbeki as leader of the post-apartheid Senate before it became the National Council of Provinces in 1997, brings more stature to his office than he takes from it. He is urbane, measured and more principled than is currently fashionable in President Jacob Zuma's ANC.
So, when he presented his annual budget address to MPs recently, Sisulu avoided the comfortable rhetoric of self-congratulation and delivered an important message about the failings of the legislature as it heads towards the end of its second decade.
He said he was concerned about the quality of legislation adopted, about the thoroughness of public consultation, about the poor attendance of MPs and about the slow response from many ministers to parliamentary questions.
"As the subject matter of legislation becomes more sophisticated and highly technical, our parliament and members must become more professional," he said.
With ministers like his sister, Defence Minister Lindiwe Sisulu, treating opposition questions with undisguised contempt, Sisulu reminded Zuma's cabinet: "While it is acknowledged that the number of questions has increased, questions are an integral mechanism to hold the executive accountable and the executive must develop the means to reply within the time limits."
He complained also about poor attendance, which has quite often seen legislation stalled simply because there were not enough MPs in the house to make a vote legitimate. He stopped short of naming MPs such as Winnie Madikizela-Mandela, who draws a full MP's salary, but rarely puts in an appearance, but promised a long-overdue policy on chronic absenteeism would be in place by the end of next month.
Sisulu got the same short shrift that the ANC has given to others, no matter what their struggle record, who criticise anything about the party and its people.
The ANC prefers its truth sugar-coated, easily digestible and delivered behind closed doors. The caucus quickly absolved itself of any blame and said it was a matter of resources, which Sisulu had failed to provide. That is not quite true.
Apart from its imposing buildings, which have been regularly renovated and extended since 1994, parliament is not particularly well-resourced. But most ruling party MPs do not use the resources that are there, and successive administrations have failed to spend all of the funds available to make their work easier.
There is always a queue for the foreign trips - though less so for the inspection tours to the dull little towns where the legislature's record of service should be tested - and for the free food and drink at the serial receptions that mark the passage of each departmental budget. There is none of that enthusiasm among the rank and file for the long hours of homework required to digest, analyse and improve upon the policy proposals and legislation that comes before them. Instead, that heavy lifting is left to a handful of stalwarts in the ANC and the opposition parties who do the actual work.
"I am concerned that more and more legislation is returned to the National Assembly for correction. This speaks both to the constitutionality of the legislation passed, as well as its quality. Because we are a constitutional state, all laws must pass the test of constitutionality. In this regard we must ensure that at all times, the laws we make are in keeping with the letter and spirit of the constitution," Sisulu said.
And there's the rub. Most of the legislation that ends up before the courts is written to make a political goal fit within the letter of the constitution because it must, but the spirit of that founding document is increasingly ignored.
After more hours than I would care to count spent in committees watching MPs at work, I believe the intention of the negotiators who crafted the constitution is increasingly seen as an inconvenience rather than as a guide.
It is not a lack of resources that causes committees and the National Assembly to approve flawed legislation. As opposition members have said since Sisulu spoke, nearly every flaw picked up in the courts was flagged by the DA, IFP, ACDP or civil society, but included at the insistence of the ruling party.
The first parliament elected with Nelson Mandela in 1994 made a genuine effort to write good law.
The conflicts were ideological between the plans of the ANC and the contrasting visions of the various opposition parties, but there was a broad will to find accommodation within the spirit of the interim constitution and the permanent one they were simultaneously crafting. Thabo Mbeki's government was more inclined to reinterpret the spirit of the constitution to suit its own plans, but tried to work within boundaries that would allow its members to sleep.
Now the instruction comes down from Luthuli House - usually wrapped in a resolution from the 2007 Polokwane conference that put Zuma in power - and the job of the ANC MPs is to make it happen.
Because the instruction is non-negotiable, no one asks whether it is constitutional, but merely believes that it could be.