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30 October 2000
COMMITTEE REPORT ON WHITE PAPER ON INTERNATIONAL MIGRATION
Chairperson : Mr A Mokoena
Relevant Documents :
Penultimate Report on the White Paper on International Migration
Response of Inkatha Freedom Party to the Penultimate Report
UDM comments on the Penultimate Report
Democratic Alliance draft response to the Penultimate Report
Public Service Commission letter to Mr Mokoena
Letter from Mario Ambrosini to Mr Mokoena
Critique of the DA response to the Penultimate Report
Critique of the IFP response to the Penultimate Report
Critique of the UDM response to the Penultimate Report
The Chairperson critiqued the written responses of the IFP,UDM and Democratic Alliance to the Penultimate Report on the White Paper on International Migration. The Chairperson expressed the view that it was not only the function of the Portfolio Committee to pass legislation but it also had to be mindful of the constitutionality of the procedures being employed in the process of passing legislation. He believed that the Department had completely ignored the parliamentary committee in the various stages of policy and legislation formulation.
The committee discussed the letter from the Special Advisor to the Minister requesting removal of criticisms levelled against him in the Penultimate Report which he regards as defamatory.
The ability of a Portfolio Committee to summons the head of a department (rather than the Minister) to appear before a parliamentary committee was confirmed in a letter from the Public Service Commission. This is pursuant to the refusal by the Home Affairs Minister for the Director General to appear before the Home Affairs Portfolio Committee.
Committees Penultimate Report on International Migration White Paper
The Chairperson gave a personal critique of the written responses of the IFP, UDM and Democratic Alliance to the Penultimate Report.
Chairpersons Critique of the IFP response
The Chairperson complained that the IFP did not recognise the constitutional role of this parliamentary committee. He referred the members to the second page of the IFP document, which states that the Minister approached the Committee to request its inputs along with all other public inputs. He described this as an erosion of democracy as the Committee simply had to queue up with the rest of the public to give its input. He stated that this clearly violated the principle that the Committee serve as overseers. Reducing the committees powers to this level made it very difficult for the Committee to uphold the Constitution. He stated that the oversight role of Parliament cannot be taken away by the Minister. Infringing on the separation of powers amounted to a violation of the Constitution. He also criticised the fact that parliamentary involvement of the Portfolio Committee was described as an abuse of power. He described their document as being defensive as it focussed on defending the Minister who was IFP. Minister Buthelezi should not be viewed as an IFP Minister but as a Minister representing the country.
Ms Van Wyk (UDM) interrupted by saying that the critique of the response was prepared by the chairperson and not by the committee. She stated that it was more important that members gave their input instead of just being presented with a one-sided opinion by the chairperson.
The Chair responded that he was merely outlining his viewpoint and that the members would be making the actual decisions.
Chairpersons Critique of the UDM response
He described the UDM response as being very superficial and stated that it was clear that they still do not know what the issues are.
Ms Van Wyk interjected that these were the Chairs personal opinions and asked why only he was being given the opportunity to give an opinion.
The Chair said that they would receive the opportunity once he had finished. He continued with his critique, pointing out that the UDMs submission that the head of state be called in to intervene in order for the process to move forward , was outrageous as the issue involved parliamentary procedure.
Ms Van Wyk interjected that she had not asked for the President to intervene and requested that the Chair reflect her document correctly.
The Chair agreed and apologised stating that he had mixed up her conclusions with that of the Democratic Alliance. The Chair noted that he had asked for responses on the 20th already and had been informed that there were no responses by that date. Only subsequently had the responses started to trickle in. He then admitted that his critique was subjective but stated that members now had the opportunity to give their opinions.
No further discussion took place.
Powers and Duties of a Director General
The Chairperson had requested that the Public Service Commission clarify the Powers and Duties of a Director General and whether a head of a department is accountable to Parliament and can be summonsed by a parliamentary committee to give evidence before it. Prof Sangweni confirmed that this is so in accordance with Rule 138(a) of the National Assembly Rules.
The Chair explained the context in which the duties of the Director General of the Department was being discussed. He stated that he had wanted to call the DG to address the Committee but had been prevented by the Minister from doing so. The Minister said that it was unnecessary to call the DG as he could answer any questions the committee had. The Chair asserted that this amounted to an infringement of their rights and a violation of the principle of separation of powers.
The Chair stated that he had asked the Constitutional Court to send a judge to explain the duties of the Committee. Their response was that he should approach the Parliamentary law advisors to deal with the issue pertaining to the powers and duties of the legislature versus the executive.
He continued that the IFP document had listed 17 stages of policy formulation that the Department had followed but had completely failed to mention the role of the Committee. It appeared as if the Department had done everything and there was now no need for the Committee to do anything.
Letter from Special Advisor to the Minister, Mr Ambrosini
The Chair referred to this document and explained that as a result of his criticisms of Mr Ambrosini in the Penultimate Report, the latter had now threatened to institute legal action against him. Mr Ambrosini felt that his job was being threatened as a result of Mr Makoenas criticisms.
Prince Zulu (IFP) noted that they were now 45 minutes into the meeting and that nothing had been discussed except the Chairs personal opinions. He asked when the parties who had made submissions would be allowed to read out their own responses.
The Chair responded that the members would receive the opportunity to respond on Wednesday, 1 November 2000.
Prince Zulu enquired whether Mr Mokoena was signing letters on behalf of the Committee or on his own behalf. He referred to the letter addressed to Mr Ambrosini in which the Chairperson had started using the word I but had then later switched to the plural we as if he was speaking on behalf of the Committee. Prince Zulu asked that the Chair state clearly in which capacity he is acting (especially since this letter had never been discussed with the Committee)
The Chair conceded that Prince Zulu was correct in his observation but stated that he had not meant to imply that he was speaking on behalf of the Committee. He explained that his tendency to use the word we was merely a habit. He stated that he would proceed in this matter in his personal capacity if the Committee did not support him.
Ms Van Wyk asked how they would take the process further. She stated that the Penultimate Report needs to be finalised and the Chairs comments were not taking the matter any further. She recommended that the Committee go through the Report page by page.
The Chairperson agreed that this would have been ideal but that time did not allow for it. He stated that it could be dealt with in this way on Wednesday. He pointed out that the way the parties had responded had made such an approach difficult. For example, the UDM had only responded to certain paragraphs while he would have preferred that it had been dealt with on a point by point basis.
He gave credit to the IFP and the way in which they had dealt with the document but stated that he could not accept it without criticising it. He stated that despite his criticisms, the document would accompany the main report when it is presented to Cabinet. He stated that the possibility then exists that Cabinet will accept points raised by the Minority and reject those of the Majority report.
Recording of Committee Meetings
Mr Kalako (ANC) then brought it to the attention of the committee that the meeting was being recorded [by a member of the public] and asked whether this was allowed.
The Committee secretary explained that this usually only took place at the request of the committee.
The Chairperson stated that one could not record members without their permission and that Mr Ambrosini (who had at this stage joined the meeting) was thus not allowed to record the proceedings without the knowledge of the members. It was unclear whether the Chair knew for a fact that the tape recorder belonged to Mr Ambrosini.
Another member observed that Mr Ambrosinis cell phone was on and said that this should not be allowed as anyone could be listening in on the proceedings.
Mr M Waters (DP) commented that this discussion indicated how relationships had deteriorated. He could not see how the recording was a problem as these meetings were open to the public in any case.
The Chair responded that it was relevant since Mr Ambrosini was threatening to institute legal action against Parliament.
Mr Waters responded that the tape would have no value in court since it had been obtained without the prior knowledge or consent of the Committee.
The Chair then ordered the person to switch off the tape recorder. Mr Kalako felt that the tape should be confiscated but the Chair disagreed.
Mr Waters requested that Wednesdays proceedings be recorded as it would serve to cover everyones backs which is necessary when dealing with sensitive issues such as the one facing the Committee.
A decision about recording the meeting will be taken on Wednesday.
Penultimate Report on International Migration White Paper (continued)
Prince Zulu asked whether the Penultimate Report was an ANC report.
The Chair replied that he had stated this at the beginning and that this was the reason that they had invited the minority parties to respond. He said that members are faced with a radical piece of legislation and that it was not only their duty to see that legislation gets passed but also to ensure that proper procedure is followed. It is for this reason that their oversight duty becomes important as the Committee is the eyes and ears of Parliament.
Chairpersons Critique of the Democratic Alliance response
The Chair stated that there is no such thing as a Democratic Alliance party in Parliament and instructed the parties involved [Democratic Party and the New National Party] not to submit a document as such.
He objected to their statement that the process had been reduced to political mudslinging and likened this to the view of the Minister that the Committee should not exercise an oversight duty. He described their suggestion that the President be dragged in as a joke. He responded to their comment that the public is waiting by saying that this did not mean that they were exempt from applying their minds properly.
In response to the statement by the Chair that there are ten stages in the legislative process, Mr Waters argued that this was not the case and that there is in fact no such thing in law.
The Chair responded that even though it was not always adhered to, one cannot deny that these stages do exist.
Mr Waters said that if all Committees had to adhere to ten stages, they should do so even when dealing with an ANC minister.
The meeting was adjourned until 2 November 2000.
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