Union interparlementaire inter-parliamentary union

Executive Oversight

• 
  Improve the efficiency, economy, and effectiveness of governmental operations;
  
• 
  Evaluate programmes and performance
  
• 
  Detect and prevent poor administration, waste, abuse, arbitrary and capricious behavior, or illegal and unconstitutional conduct;
  
• 
  Protect civil liberties and constitutional rights;
  
• 
  Inform the general public and ensure that executive policies reflect public interest;
  
• 
  Gather information to develop new legislative proposals or amend existing statutes;
  
• 
  Ensure administrative compliance with legislative intent;
  
• 
  Prevent Executive encroachment on legislative authority and prerogatives
  

However, according to Mills(1861) and Barnett(2009), respect for the separation of powers indicates that oversight is not synonymous with supervision which Kaiser seems to suggest.

In a constitutional or parliamentary democracy, the Executive is accountable to Parliament as the elected representative institution. It is Parliament’s duty to deliberate on and pass laws, to scrutinize government programmes and expenditure and to make the Executive accountable. Parliament performs its oversight role by scrutinizing government policies, programmes, and expenditure plans. This is done, among other things, by making inputs into, approving and monitoring the national budget. Parliament of Zimbabwe, through its 25 pre-audit oversight committees comprising 19 Portfolio Committees in the House of Assembly and 6 Thematic Committees of the Senate, monitors all government policies and programmes to ensure not only efficient use of national resources, but also greater accountability and transparency. In addition, the Committee of Public Accounts in the House of Assembly has a post-audit function.

A portfolio committee’s terms of reference include monitoring, investigating and enquiring into the budget, policy or any other matter it may consider relevant to the government department falling within the category of affairs assigned to it.
One of the tried and tested methods of enquiry by a parliamentary committee is to conduct a hearing in order to gather evidence to assist the committee to make informed findings and recommendations to Parliament/the House. The enquiry process often involves committee field visits. In Zimbabwe, a committee usually only requires the Speaker’s/President of the Senate’s approval to travel beyond the precincts of Parliament. A parliamentary committee also has powers ‘to summon any person to appear before it to give evidence on oath or affirmation….or to produce any documents’. These powers are enhanced by the Privileges Immunities and Powers of Parliament Act (PIPPA) [Chapter 2:08] which makes it a punishable offence for a witness before Parliament to:

1. 
   willfully fail or refuse to obey any rule, order or resolution of Parliament (and this includes any of its committees);
   
2. 
   disobey any summons issued in terms section eleven;
   
3. 
   refuse to be examined before or to answer any lawful and relevant question put by Parliament or a committee;
   
4. 
   willfully obstruct or prevent a committee of Parliament from conducting its work.
   

Parliamentary privilege is a special right by Parliament as a body, members as individuals as well as witnesses who appear before Parliament. This privilege is part of the law in Zimbabwe. Section 4 of PIPPA provides that the privileges immunities and powers of Parliament and members and officers of Parliament shall be part of the general and public law and it shall not be necessary to plead them but they shall be judicially noticed in all courts. Therefore, failure to comply with any of the above constitutes a punishable contempt of Parliament.

Having outlined the powers and functions of parliamentary committees in Zimbabwe, it is important to share an experience one of these committees has encountered in the execution of its oversight function. Comparisons are also drawn from similar experiences in other Parliaments.

It is clear that undertaking Executive oversight is a challenging exercise as the Executive appears reluctant to cooperate with Parliament for misplaced ‘fear of damaging exposure’, and its intended and unintended consequences, particularly on the perceived sensitivity associated with the mining and sale of the newly found diamonds. Failure by the Executive to timeously clear the visit to Chiadzwa may be viewed as a contemptuous attitude towards Parliament. It is debatable whether Parliament requires clearance to visit areas of interest, particularly protected areas.

Experiences from Australia and South Africa: Claims of Executive Privilege

Conclusion

From the above, it is evident that parliamentary convention and practice do not grant Parliament powers to direct the Executive and its arms to cooperate with any of its committees or to invoke the provisions of parliamentary privilege relating to contempt. It is also clear that in the execution of its oversight function on Executive programmes and activities, Parliament encounters many challenges and these can best be resolved by a persuasive rather than an adversarial approach.

References

1. 
   Anne Lynch and Barbara Allan (2005)
   
2. 
   Constitution of Zimbabwe
   
3. 
   Frederick M. Kaiser, Congressional Oversight, Order Code 97-936 GOV
   
4. 
   Hoffmann and Zeffert (1994), The South African Law of Evidence
   
5. 
   House of Assembly Standing Orders, First Edition. 2005
   
6. 
   Mills, I. S. 1861 Representative Government as cited in Barnett (2009) Constitutional and Administrative Law, Cavendish Publishing Company, London
   
7. 
   Parliament Reform Committee Report(1997), Parliament of Zimbabwe
   
8. 
   Privileges, Immunities and Powers of Parliament Act (Cap 2.08)
   
9. 
   US Military Dictionary (2002) The Oxford Essential Dictionary of the U.S. Military. Oxford University Press, Inc.”
   

Dr Hafnaoui AMRANI, President, thanked Mr Austin ZVOMA for his communication and invited members present to put questions to him.
Mr Alain DELCAMP (France) said that parliamentary oversight was a key topic for parliaments today, and he suggested a general debate at a future session. He noted the difference between the French and Westminster approaches to the subject. In the French tradition, Parliament could overthrow the Government, while in the Westminster tradition, Parliament was there to support the Government. Parliaments made laws, but were not there to contribute to instability apart from in a crisis. Oversight should be a daily task for parliaments and parliamentarians. Parliamentarians needed to engage in post-legislative scrutiny to see how the laws they had passed were implemented in practice.
Mr Mohammed Kazim MALWAN (Afghanistan) said that in his view oversight was key to effective relations between Government and Parliament. However, when this concept was wrongly understood, Government sought to minimise oversight and Parliament sought to intervene in executive decisions. He asked what the main tools were for achieving a balance between these tendencies.
Mr Emmanuel ANYIMADU (Ghana) said that in his experience, parliamentary committees often lacked the expertise to conduct oversight effectively. He asked if parliamentary committees in other countries engaged experts before embarking on inquiries, and what problems they encountered in taking on this assistance.
Dr V.K. AGNIHOTRI (India) concurred that “oversight” and “supervision” were not synonymous. In India, parliamentary committees’ recommendations had only persuasive value, and were not binding on the Government. The Government was much more loath to reject the recommendations of ad hoc select committees than it was to reject those of standing committees, because those of ad hoc committees had to be defended and potentially voted on in the Chamber.
Mrs Doris Katai Katebe MWINGA (Zambia) asked Mr Zvoma to what extent he had sought to verify claims by potential witnesses that the sub judice rule applied to the evidence being requested of them. She also noted the tendency of potential witnesses to claim that defence and security considerations applied to their evidence. Committees in Zambia had considered calling former First Ladies to give evidence, and she wondered if this had also happened in other countries.
Mr Claude FRIESEISEN (Luxembourg) explained that his national Parliament operated many of the traditional forms of oversight described by other speakers. He noted two particular developments over the past ten years: first, that the chairmanship of the most sensitive committees in his Parliament was now, with the blessing of the Government, given to a member of the Opposition; second, the role of parliamentarians in evaluating the impact of policies previously adopted, as mentioned already by Mr Delcamp.
Mr Zingile DINGANI (South Africa) commented on the failure of Ministers to appear before the Zimbabwean Public Accounts Committee, and suggested that there was a constitutional requirement for them to appear. Committees needed to have recourse to the Speaker or presiding officer if a deadlock emerged between the will of a committee and that of the Executive, but committees sometimes forgot that they were creatures of the House rather than independent entities. Committee chairs often preferred to listen to legal advice as opposed to procedural advice, and this sometimes led to mistakes. The answer to this was to ensure that combined legal and procedural advice were available through a single source. He also asked how it could be consistent with oversight and parliamentary independence that a committee of Parliament should need to ask the Executive for permission to conduct inquiries. Finally, he asked what would have happened if the companies mentioned by Mr Zvoma had refused to respond to the subpoenas issued to them.
Mr Edwin BELLEN (Philippines) asked if the Zimbabwean Parliament had any rules governing the conduct of committee inquiries. In the Philippines, Congress was required by the Constitution to have such rules and to respect the rights of witnesses. He also asked how the Zimbabwean Parliament could cite a witness as being in contempt, and whether this could be challenged in the courts. Finally, he asked who had the right to invoke executive privilege, and on what grounds.
Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) mentioned recent legislative instruments in her country aimed at supporting the scrutiny function of Parliament. She asked for clarification on the matter of Chiadzwa Diamond Fields.
Mr Austin ZVOMA agreed with Mr Delcamp’s suggestion that there should be a future general debate on related issues, particularly given the clear differences between the French and Westminster models of oversight. He noted the power of Westminster-based parliaments to overthrow Governments by means of a vote of no confidence. He also agreed with Mr Malwan’s proposition that committee oversight was a tool for co-operation between Parliament and Government, but that Governments tended not to see it so positively. In response to Mr Anyimadu’s point, Parliaments did indeed often lack expertise, particularly when compared with the Executive, and there was a constant fight for adequate resources. The Zimbabwean Parliament did sometimes hire experts from the private sector and universities to work with committees, and was seeking to build capacity in areas of particularly sustained focus. Committee teams were trained, for example, to understand resource-based management accounts and budgets, as used in Government. Parliament needed to add value to the law-making process, not just simply to be a pathway through which laws passed. While there were rules for setting up ad hoc committees, these were very rarely invoked. The sub judice rule could not be used to avoid appearing before a committee altogether. Committee Members could not use privilege to override statutory requirements for them to receive clearance before visiting a protected area. Witnesses did sometimes appear before committees in private. Zimbabwe did not have the problem of First Ladies cited by Mrs Mwinga, and only the President could refuse altogether to appear before a committee. Mr Zvoma was very interested in pursuing the idea of post-legislative scrutiny. In response to Mr Dingani, he suggested a fuller discussion of the role of the Speaker. Permanent Secretaries in Zimbabwe were directly responsible to Parliament for the day-to-day administration of their departments, as opposed to policy, which was a matter for Ministers. Executive privilege was rarely applicable, except where matters of military secrets were concerned: it was always possible for a witness to appear before a committee in private.
Dr Hafnaoui AMRANI, President, thanked Mr Zvoma for his convincing and thorough communication, and hoped that the matter would return to the agenda at the next session in Panama.

The sitting rose at 4.48 pm.
THIRD SITTING

Tuesday 5 October 2010 (Morning)
Dr Hafnaoui AMRANI, President, in the Chair

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