South Africa’s constitutional democracy can be characterized as both representative and participatory in its nature. The representative part of our democracy takes place when citizens elect political representatives. The participatory portion of South Africa’s democracy takes place when laws are made and oversight is conducted at Parliament and the nine provincial legislatures. Parliament consists of the National Assembly (NA) and National Council of Provinces (NCOP).
In terms of the Constitution, sections 59 and 72 mandate Parliament to involve the public and to conduct its affairs in an open and transparent manner. Whilst the Constitution recognizes the need for public participation there is no agreed universal definition of what this means. The process presently is as follows: the minister refers a bill to the relevant parliamentary committee; the bill is then published, informing the public when the committee will conduct public hearings; the public is invited to submit comments on the bill; the public is also given an opportunity to make oral representations to the committee. After public hearings are concluded the committee will deliberate amend and adopt the bill. The bill is debated in both the NA and NCOP before being sent to the President to sign the bill into law.
In the Doctors for Life International v Speaker of the National Assembly (2006), the Constitutional Court ruled that the Legislature must take steps to give the public a reasonable opportunity to participate effectively in the law-making process. This duty to facilitate public involvement requires that, meaningful opportunities for public participation in the law-making process be provided and that measures are taken to ensure that people had the ability to take advantage of the opportunities provided.
In Matatiele Municipality v President of the Republic of South Africa (2007), the Constitutional Courts agreed with the description of the duty to facilitate public participation adopted in Doctors for Life. The court reinforced that the duty to facilitate public participation would have no meaning if the legislators did not: “provide opportunities for the public to be involved in meaningful ways, to listen to their concerns, values, and preferences, and to consider these in shaping their decisions and policies”.
In Merafong Demarcation Forum v President of the Republic of South Africa (2008), the Constitutional Court ruled that participating in the law-making process did not mean that one’s view should be taken into account or such views bound the legislature.
In terms of case law, the definition of “meaningful” public participation is a discretion that is left with Parliament and the Legislatures. If meaningful public participation is discretionary, how does one determine whether public participation measures were sufficient. An applicant unhappy with the process, would have to fork out millions of Rands to take the bill to the Constitutional Court to have the process declared flawed, unconstitutional and referred back to Parliament.
The National Policy Framework for Public Participation in 2006, defines public participation as: ‘an open, accountable process through which individuals and groups within selected communities can exchange views and influence decision-making’ (Department of Provincial and Local Government, 2006).
The High-Level Panel on the assessment of key legislation and the acceleration of fundamental change Report (November 2017), pointed out that Parliament should also facilitate meaningful and effective public participation in the legislative and policy-making cycle. The panel also warned about developing laws ‘in silos’, rather than adopting a cross-sectorial and integrated approach. It was also pointed out Parliament currently appears overly dependent on government departments to develop Bills, which reinforces the problem of siloed interventions.
One of the challenges is in Parliament and the Legislatures not communicating to a stakeholder how a submission was taken into consideration in the law-making process. Many stakeholders spend enormous amounts of money to have a submission drafted and took time to make oral representations. Also, ordinary citizens took time to read and draft a submission. There must be some sort of indication about how that submission or comment was considered or taken into account in the deliberations and finalisation of a bill.
As a way forward, perhaps Parliamentary committees should – before being briefed by the departments on bills or other legislative measures – already have undertaken independent research on who the stakeholders are that are impacted and how they are impacted by a bill. The more serious a matter, the more communication there must be with the affected stakeholders. During the legislative process there are various stakeholders lobbying to keep their interests on the minds of Members of Parliament and Delegates. Stakeholders impacted by a legislative measure must find ways of monitoring the process of a bill and ensure that their comments are taken into account.
South Africa is moving more and more into a space where citizens, other than voting in elections, want to be more involved in law-and-policy-making and other matters affecting their lives. Parliament and the Legislatures must therefore find more creative and innovative measures as to how they involve the public in their processes. This will lead to Parliament and the Legislatures becoming a more effective and inclusive Voice of the People.
Zelna Jansen is the Chief Executive of Zelna Jansen Consultancy.