By Yasin Maoni
2.1 INTRODUCTION
This paper analyses the relationship between
oversight and separation of powers and the relationship between oversight and
accountability. This is followed by a discussion on the constitutional and
legislative framework of oversight and separation of powers at local government
level. An attempt is made to outline the
challenges that are being cited by certain interest groups and scholars as
resulting from the set up in the local governance system. The paper winds up
with a brief statement on the divergent options on how to deal with the
problems attributed to conflation of powers at local level.
2.2 THE CONCEPT OF OVERSIGHT AND SEPARATION OF POWERS
2.2.1 Understanding oversight
In
the ordinary English meaning oversight relevant to the concept under discussion
is derived from the word oversee. To oversee is to watch somebody or something
and make sure that a job or activity is done correctly.[1] In
the context of this discussion, oversight is considered in the scenario of a
relationship between the legislative functionality to oversee the executive and
administrative functionality, commonly referred to as legislative oversight. Legislative oversight connotes the
legislative supervision or watchfulness of the authority which is considered
delegated to the executive branch and entities.[2] According
to Lemos, it connotes the notion of monitoring, supervising and controlling.[3] In
another use of phraseology, the Ohio Legislative Commission defines legislative
oversight as legislative review and evaluation of activities of the executive
branch of government.[4] In
essence oversight refers to the watchfulness, supervision, control, monitoring,
review and evaluation of the exercise of power of the executive and executive organs
by the legislature. In the study herein, it refers to such legislative
oversight in municipal governance.
Oversight
is important as it ensures that the executive complies with legislative intent,
improves efficiency, effectiveness and economy of government operations,
evaluates performance, prevents executive encroachment on powers, and ensures
investigation of alleged instances of poor administration, abuse, waste, dishonesty
and fraud.[5] In
essence oversight makes sure that the executive arm and the administration are
effective and efficient in their operations, and in the exercise of their
mandate and authority entrusted or delegated to them. It ensures that they do
that within their proper confines of power and legislative intent. Oversight ensures that the executive arm of
government is accountable for the exercise of their powers and performance of
their functions. This works especially within the tenets of the principle of
separation of powers and is related to the concept of checks and balances. Thus,
oversight keeps the exercise of executive and administrative powers in a check.
2.2.2 Understanding separation of
powers.
Separation
of powers is a jurisprudential doctrine or principle that requires a division
and delimitation of powers and functions of the branches of government
classified as executive, legislative and judicial in a sense that each of the
three branches of government is responsible for a single function. The doctrine
was conceived on the need to protect the liberty of individuals and is an
antithesis of tyrannical rule. It
prevents the accumulation of all powers, legislative, executive and judicial,
in the same hands, whether of one, a few men or many, and whether hereditary or
elected .[6]
The doctrine when practiced ensures independence of the branches of government,
facilitates an expedient division of labour, creates more seats or avenues of
power and develops areas of expertise in the respective branches.[7]
The
principle of separation of powers is not only important in that it creates
efficiency, but it is also necessary in ensuring that there are proper checks
and balances in exercise of power. [8]
The principle of separation of powers divides powers of government among different
branches of government, whereas the doctrine of checks and balances prevents
each of the branches from usurping power of another branch.[9] Separation
of powers, therefore, is a principle that serves a number of purposes if put in
practice. The major one is to prevent concentrating of all powers, legislative,
executive and judicial, in one body or person so as to allow a proper and
reciprocal check or control of the powers of government.
2.2.3 Relationship between
separation of powers and oversight.
There
is an inherent relationship between separation of powers and oversight. This
relationship exists in the sense that oversight, as defined above, entails
watchfulness, supervision, monitoring, control, review or evaluation by the
legislature over the executive and administrative functions of government. This
requires an existing division or delimitation of powers classified as executive
and legislative. That division is within the prescription of the doctrine of
separation of powers. It can, therefore, be rightly said that for legislative
oversight to be effectively exercised, there must be some application of the doctrine
of separation of powers.
Separation
of powers is also related to oversight if observed from the perspective of
accountability. Adhering to the principle of separation of powers has the
potential of enhancing accountability. According to O’Regan K Justice,
separation of powers enhances the vision of democracy which is founded on the
values of accountability, responsiveness and openness.[10]
Accountability is understood as a social relationship in which an actor feels
an obligation to explain and to justify his or her conduct to some significant
other.[11]
The significant other to whom the account or explanation is given exercises
watchfulness and oversees the accounter, thereby creating an oversight
relationship. According to Bentham, the more strictly we are watched, the
better we behave.[12]
This is the inherent rationale behind emphasising oversight which also entails
accountability. In the same way, there is a natural relationship between
accountability and oversight; the more an institution is overseen, the more
accountable it becomes. The application of the doctrine of separation of powers,
therefore, ensures an environment that facilitates oversight and
accountability, whereas accountability and oversight have a reciprocal
relationship that enhances one another.
2.3 CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK
As
the study deals with the mechanisms of oversight and separation of powers in
metropolitan municipalities, the legal context in which they operate need to be
understood and is analysed in this part. The discussion is in the context of
the Constitution and legislation.
2.3.1 Oversight in the Constitution
and legislation
The
provision of oversight in the Constitution can be considered in the perspective
of the differences in the spheres of government, particularly in the context of
legislative oversight. At national level, the national assembly is elected to
represent people and to ensure government by the people by, among other things,
scrutinising and overseeing executive action.[13]
The usage of the phrase “overseeing executive action” means that the national
assembly has the duty and responsibility of providing oversight over the
national executive. In another provision, the Constitution has unequivocally
provided for legislative oversight of executive authority. It has obliged the
national assembly to provide mechanisms that will ensure that all executive
organs at national level are accountable to it, and that it maintains oversight
of the exercise of national executive authority.[14] This
is a clear requirement of oversight by legislature, and reciprocal
accountability, by the national executive organs. In furtherance of the
national assembly’s duty to oversee the executive organs, and the executive to
account, members of the cabinet, which is the apex of executive authority at
national level, are required to provide parliament with full and regular
reports concerning matters under their control.[15]
Legislative oversight over executive organs at national level has , therefore,
been clearly provided for in the Constitution.
At
provincial level, oversight has been similarly provided for in the
Constitution. The provincial legislature is instructed to provide for mechanism
ensuring that all executive organs in the province are accountable to it and
that it must maintain oversight of the exercise of executive authority in the
province.[16]
By this instruction, the provincial legislature has been conferred a duty to
oversee executive authority and organs and to make sure that such executive
organs are accountable to it. Further, in the fashion of oversight and
accountability relationship between provincial legislature and executive,
members of the executive council are required to provide to the legislature
full and regular reports concerning matters under their control.[17]
In this case as well, oversight has been clearly provided for by the
Constitution.
At
local government level the scenario is different. The Constitution does not
provide any oversight and accountability relationship due to the reason, as it
will be detailed later, that executive and legislative powers are vested in the
council as one body.[18]
Thus, there is no separation of powers provided in the Constitution at local
government level. This accounts for the absence of an express provision for
legislative oversight at local level in the Constitution. Interestingly, no
legislation has also expressly provided for legislative oversight at local
government level. However, legislation, as will be discussed later, has
provided mechanisms that may be used to facilitate oversight at local
government level despite the absence of express stipulation.
2.3.2 Separation of powers in the
Constitution and legislation
In
relation to providing for the doctrine of separation of powers, the
Constitution has not made an express use of the phrase separation of powers but
has made provisions which put into effect principles of the doctrine. The
Constitutional principles which were negotiated during the multiparty
negotiation process and formed the basis of drafting the 1996 Constitution did,
however, have an express provision for the separation of powers between the
executive, legislature and judiciary.[19]
It is on the basis of the constitutional principle that the current
Constitution has provided for the separation of powers, although not expressly
mentioning it. The legislative, executive and judicial functions have been
vested in different branches or organs, at least at national and provincial
level. At national level legislative authority is vested in parliament,[20]executive
authority is vested in the president who is supported by the cabinet,[21]and
judicial authority is vested in the Judiciary.[22]
At provincial level legislative power is vested in the provincial legislature, [23]executive
authority vested in the premier who is supported by the executive council,[24]
and the same judiciary determines all judicial matters. There is in this case a
clear division of powers between the three branches of government at the
national and provincial level.
At
local government level, however, the Constitution has vested both legislative
and executive powers in the council which is a single organ.[25]
There is, therefore, no separation of powers provided by the Constitution at
local government level. Legislation has also not provided for a separation of
powers at local level, but has only provided mechanisms which if properly used,
may in practice create a separation of powers at local government level. The
mechanisms available include the terms of reference which designate the roles
and responsibilities of each political structure or position,[26]
and the systems of delegation through which the council may transfer part of
its powers to political structures and positions.[27]
These mechanisms, together with other numerable mechanisms which will be
discussed in detail in chapter 3, may also be used to provide for oversight at
local government level. The use of such mechanisms for creation of separation
of powers and enhancement of oversight is the main subject of this study and
will be discussed in the proceeding chapters. Additionally, legislation has, to
a lesser extent, provided some form of separation of functions; especially to
the higher offices of the speaker and executive mayors or executive committees.
At this stage what is clear is that the Constitution and legislation, while
providing for oversight and separation of powers at national and provincial
level, have not done so with regard to the local government. There is therefore
no clear separation of powers and legislative oversight provided at local
government level. This has been confirmed by the Constitutional Court in the
case of Democratic Alliance V Masondo.[28]
2.4 PERCEIVED PROBLEMS DUE
TO CONFLATION OF EXECUTIVE AND LEGISLATIVE
POWERS AT MUNICIPAL LEVEL
As
seen above, the Constitution and legislation do not make an express provision
for separation of powers at local
government level. The Constitution has done the opposite by providing that both
executive and legislative powers are vested in the council. What, then, are the
consequences of this conflation of executive and legislative powers at local
level? De Visser has stated three challenges emanating from this constitutional
set up.[29]
First, he observes that the conflation of powers at local government level
complicates or brings confusion on the office of the speaker of the council. Although
the speaker would properly be considered to be the head of the legislative
functionality of the council, the council also makes executive and administrative
decisions on which the speaker presides. In practice, he is not really divorced
from the municipal executive and municipal decision making. He benefits from
the same administrative budget and therefore dependent on the administration.
Secondly, De Visser states, it is not clear who is the overall in charge of
municipal administration between the speaker and the mayor. Thirdly, it is
stated that the conflation creates a challenge as it makes room for
municipalities to adopt wrong form of committees. He observes that most of the
municipalities have adopted section 80 committees which are merely portfolio
committees assisting the executive mayor instead of section 79 committees which
could have been providing oversight on the executive and administrative powers
and functions.
Apart
from the above challenges coming about as a result of the conflation of
executive and legislative powers at local government level, De Visser and
Akintan have cited the problem of conflict or tension between the office of the
speaker and that of the mayor.[30]
This tense environment does have a negative impact on overall governance at
municipal level, particularly on oversight. The African National Congress
(ANC), through its National Executive Sub-committee also noted that the absence
of separation of powers at municipal level, among other effects, result to
blurred line of accountability of the mayors and mayoral committees to the
municipal council.[31]
The accountability and oversight relationships at at local government level are
not clear and straight forward and create a challenge in governance. The
Department of Traditional affairs and Cooperative Governance (CoGTA) in the
National State of Local Government Report 2009 indicates that municipal
governance is in distress. One of the reasons cited for the distress is the
lack of separation of powers between legislative and executive at local
government.[32]
From
the discussion above and findings presented, it is clear that the absence of
separation of powers at local government level has been part of the causation
to governance problems obtaining in the sphere. This ranges from inherent
conflict or tension between higher municipal office bearers, unclear lines of
oversight and accountability, misunderstanding as to who is in charge of
municipal administration and the adoption of wrong committees of the council.
2.5 THE DEBATE ON OVERSIGHT, SEPERATION OF POWERS AND PROPOSALS THEREOF.
Generally,
academics and policy makers do agree that the conflation of legislative and
executive powers in the same council at local government level creates a
challenge which has a negative impact of general governance, in one way or
another. There is, however, a dichotomy of options on how to deal with the
problems attributed to the conflation of powers at municipal level. One such
proposal is to have a a separation of powers at local level by constitutional
amendment, whereas the other view proposes to retain the constitutional setup
as it is but concentrate on making use of the mechanisms made available by
statute to create a system of separation of powers that also enhances oversight
relationships. These two divergent options, it is stated, would resolve the
governance problems attributed to the conflation of powers at municipal level.
De
Visser and Akintan in discussing the tension that exist between the office of the
speaker and that of the mayor intimated that the amendment of section 151(2) of
the Constitution to provide for a separation of powers would be one option in
dealing with the tension between the two offices.[33] This, according to them, would entail a reworking
of related legislation that deals with political structures at local level.
They indicate, however, that this option would bring significant repercussions
in the local government system. They argue that a prior nuanced study of what
could obtain in practice should be done as a viable test measure before using
the option.[34]
This, nevertheless, has been a view of many other people in policy discussion
forums, including that of the ANC. The ANC recommendations, however, from the
policy national conference of 2012 has fallen short of recommending for amending
section 151(2) of the Constitution. It has merely recommended that there should
be a greater separation of executive and legislative arms of municipalities.[35]It
is not clear whether this will be through a constitutional amendment or not.
De
Visser on the other extreme, while accepting that the conflation of powers
creates a challenge, argues that focus should not be on the debate on
conflation of powers but on other ways of improving governance and resolving
the resulting problems within the current legal framework.[36]
The municipalities, he states, can make use of legislative mechanisms which
already provides for a degree of separation on the function at local level.[37]
These mechanisms can be used to effectuate separation of powers at local
government level without constitutional amendment
The
discourse above shows that there is a dichotomy of options on how to to deal
with the consequent problems of of the conflation of powers at local level.
Despite this dichotomy of options, the study here in focuses on understanding
how the latter option has been used by by the selected metropolitan
municipalities to provide for a separation of powers and enhance oversight.
2.6 CONCLUSION
In
the discussion it has been seen that oversight is an important notion for
effective governance. It is one of the attributes of good governance as it is
correlated with accountability. It has also been noted that the doctrine of
separation of powers, when applied in a governance system, creates an
environment conducive to oversight and accountability as it delineates powers
and functions to different structures or organ of governance. Thus, it may be
concluded that there is an inherent relationship between separation of powers,
on the one hand, and oversight and accountability on the other hand.
In
the South African context, it has been seen that while the Constitution has
provided for legislative oversight at national and provincial level, it has not
provided for legislative oversight at local government level. This is on the
reason that, as opposed to providing for separation of powers at national and
provincial level, the Constitution has not provided for separation of powers at
local government level. This causes a challenge on governance to the
sphere. Additionally, it has been noted
that there are two possible options in dealing with the problems of governance
attributed to the conflation of powers. These are either to amend the
Constitution and provide for separation of powers, or to retain the current
legal set up and work with it.
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Legislation, regulations and legal
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The
Constitution of the Republic of South Africa Act No 200 of 1993
The
Constitution of the Republic of South Africa Act No 108 of 2006.
The
Local Government: Municipal Systems Act No 32 of 2000.
Case Law
Democratic Alliance v Masondo 2003
(2) BCLR 128 (CC)
Re: Certification of the
Constitution of the Republic of South Africa, 19996 1996 (10) BCLR 1253 (CC),
1996 (4) SA 744(CC) at par 108=109.
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[1]
Hornby A.S Oxford Advanced Learners
Dictionary of Current English 2010.
[2]
Oleszek W.J Congressional Oversight: An
overview Congressional Research Service Report for Congress 2010 4.
[3] Lemos
L B Legislative Oversight of the
Executive Branch in Six Democracies in Latin America 2010 7
[4]
Ohio Legislative Service Commission A
guide Book for Ohio Legislators 2010 73.
[5] Kaiser,
Oleszick and Talelman Congressional
Oversight Manual 2010 2-3.
[6]
O’Regan K Checks and Balances Reflections
on the Development of the Doctrine of Separation of Powers in the South African
Constitution 2005 4, quoting Thomas Madison in the Federalist Paper.
[7] De
Visser and Akintan Institutional Tension Between
Municipal Chairpersons and Executives-Speaking of Mayor Conflicts 2008 11.
[8] De
Visser and Akintan 2008 11, and O’Regan K 2005 4.
[9] Re: Certification of the Constitution of the
Republic of South Africa, 19996 1996 (10) BCLR 1253 (CC), 1996 (4) SA 744(CC)
at par 108=109.
[10]
O’Regan K 2005 5.
[11]
Bovens M Public Accountability in The
Oxford Handbook of public Accountability 2005 184.
[12]
Quoted by Lindberg S.I Accountability: The Core Concept and its Sub-types in Africa power and politics Working Paper No 1
1999 7.
[13]
Section 42(3) of the Constitution of the Republic of South Africa 1996.
[14]
Section 55(2) of the Constitution.
[15]
Section 92(3) (b) of the Constitution.
[16]
Section 114(2) of the Constitution.
[17][17]
Section 133(3) (b) of the Constitution.
[18]
Section 151(2) of the Constitution.
[19]
Constitutional Principle No IV of the Constitutional Principles.
[20]
Section 43(a) of the Constitution.
[21]
Sction 83 of the Constitution.
[22]
Section 163(1) of the Constitution.
[23]
Section 43(b) of the Constitution.
[24]
Section 125(1) of the Constitution.
[25]
Section 151(2) of the Constitution.
[26]
Section 53(1) and (2)(a) of the Systems Act.
[27]
Section 59(1) of the Systems Act.
[28] Democratic Alliance v Masondo 2003 (2)
BCLR 128 (CC) Para 60.
[29]
De Visser J The Political- Administrative Interface in South African
Municipalities: Assessing the Quality of Local Democracies in Commonwealth Journal Of Local Governance 2010
91.
[30]
De Visser and Akintan 2008 15.
[31]
African National Congress Legislative and Governance NEC Sub-committee Provincial and Local Government Review Discussion
Paper 2010 17.
[32][32]
Department of Cooperative Governance and Traditional Affairs (CoGTA) State of
Local Government: Overview Report 2009 10.
[33]
De Visser and Akintan 2008 23.
[34]
De Visser and Akintan 2008 24-25.
[35]
ANC Recommendations from the 4th National Policy Conference June 2012
30.
[36]
De Visser 2010 93.
[37]
De Visser 2010 90.
