To be faithful to South Africa and to obey, respect and uphold the Constitution in terms of their oath or affirmation of office, takes precedence above any other duty of Members of Parliament - including political party interests.
As such, Members of Parliament have a primary constitutional duty, apart from their combined legislative authority, to scrutinise and oversee executive action and to provide a national forum for public consideration of issues - to ensure accountable, responsive and open government.
South Africa, by virtue of section 1 of the Constitution, is a sovereign and democratic state founded on, among others, the values of "universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness" - a democracy, according to the Preamble to the Constitution, in which "government is based on the will of the people". In giving effect to the values enshrined in section 1, the Constitution, provides for a national Parliament (comprising the National Assembly and National Council of Provinces), but also provincial legislatures to represent the people in the national and provincial spheres of government.
The National Assembly, in terms of section 42(3) of the Constitution, "is elected to represent the people and to ensure government by the people under the Constitution". This reiterates the notion that the people - as highest political authority - remain sovereign, represented by their elected representatives within the parameters of the Constitution. The National Assembly has four distinct duties which it must fulfil on behalf of the electorate and as prescribed by section 42(3): First, "choosing the President" from among its members; secondly, "providing a national forum for public consideration of issues"; thirdly, "passing legislation"; and fourthly, "scrutinising and overseeing executive action".
In turn, section 42(4) determines that the National Council of Provinces (NCOP) represents the provinces, thus ensuring that provincial interests are taken into account in the national sphere of government. The NCOP fulfils this mandate by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.
However, before designated members of the National Assembly and permanent delegates of the NCOP take their seats as the 5th democratically elected Parliament, they will swear or affirm that they will be "faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic". The oath or solemn affirmation prescribed by Schedule 2 to the Constitution also requires members and delegates to "solemnly promise to perform [their] functions as a member of the National Assembly [or] permanent delegate to the National Council of Provinces...to the best of [their] ability". This oath or affirmation, according to Chief Justice Mogoeng Mogoeng (who must either administer the oath or affirmation, or delegate the function to another judge), should not be taken flippantly: "Taking [the] oath is not and could never have been intended to be merely ceremonial. An oath of office is not an inconsequential ritual, a meaningless and inconvenient formality designed to at least afford high-ranking officials the opportunity to pose for a photo in designer suits, with a possibility of appearing on television or in the newspapers."
Accordingly and in terms of section 55 of the Constitution, the National Assembly must provide for mechanisms to ensure that Cabinet, all other public officials and all organs of state are accountable to Parliament for its decision, actions and inactions. The National Assembly must hence maintain "oversight of the exercise of national executive authority, the implementation of legislation and any organ of state". This means every public official - from the President to a post office clerk - must effectively account to Parliament and must face parliamentary sanction when failing to do so. This, of course, requires Members of Parliament to uphold their oath or affirmation by fulfilling their constitutional duties diligently and without delay - and with independence of mind.
In addition, section 59 of the Constitution determines that the National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its committees. It cannot ignore the electorate, but must promote both representative and participatory democracy. Parliament and its National Assembly must - in a manner that is both reasonable and rational - provide a platform for public audience and debate. As such, Parliament and its National Assembly have a constitutional duty to engage in debate on matters important to the electorate, call the executive to account and criticise the executive in the execution of their responsibilities where so required. If Parliament and its National Assembly are not providing a platform for grievances of the electorate and an assembly for debating matters of national concern, they are failing the people in favour of party bosses who instead then determine what not to discuss, who not to criticise and which agendas to pursue. Clearly this cannot bode well for our constitutional democracy.
John Stuart Mill asserts that the greatest positive perils to the effective functioning of a Parliament could be reduced to two concepts: first, general ignorance, incapacity or incompetence of representatives, especially within the ruling majority; and secondly, the danger of representatives and Parliament itself "being under the influence of interests not identical with the general welfare of the community" leading to class legislation and decisions on the part of the numerical majority. After proper parliamentary induction, the first ought not to be a problem. The latter, however, is what Professor George Devenish refers to as "the predations of all those in the new body politic and society who prove to be power-hungry, unscrupulous, uncaring and avaricious" and which can only be avoided when Members of Parliament, both individually and jointly, act with integrity, with due respect for the Constitution and with the general welfare of everyone in South Africa in mind.
Honourable Members, although you will without doubt perform your parliamentary functions to the best of your respective abilities, regularly remind yourself of your oath or affirmation to obey, respect and uphold the Constitution and all other laws of South Africa. Lest we forget, the true yardstick against which your individual contributions will be measured for the next five years and beyond will be the Constitution.
- By Adv Johan Kruger, Director: Centre for Constitutional Rights