Why Public Participation is important

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The Copyright Amendment Bill and Performers Protection Amendment Bill was referred back to Parliament. After about two years of public hearings, stakeholders making representations, spending resources attending hearings, making inputs, deliberations from the committee members, etc., the President referred the bills back to Parliament due to his reservations as to whether the bills would pass constitutional muster.

Although he does not specifically mention it, his reservations fall within the ambit and scope of Parliament’s role and mandate of involving the public in its processes. I say this because, in his letter to the Speaker of the National Assembly (NA), dated 16 June 2020, he says that the “…relevant provisions as amended were not put out for public comment before the final version was published. The changes made to this section of the bill were material to scheme as a whole and failure to consult…could render the provisions constitutionally invalid”. 

As background, when bills are introduced in Parliament, they must be tagged to follow a particular process. I mention this because tagging impacts the public participation process. 

Tagging a bill is prescribed in the Constitution, particularly sections: 74, 75, 76 and 77. Schedules to the Constitution provide guidelines on how a bill should be tagged. Tagging is done by Parliament’s Joint Tagging Mechanism. A committee consisting of the Speaker and the Deputy Speaker of the NA and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces (NCOP). 

The tagging process is of utmost importance as it sets out the process to be followed in public hearings. Both Copyright and Performers bills were tagged as section 75 bills. This meant that only the NA would have the final say in what the end product of the bill looked like. The NCOP in this process could suggest amendments to the bill. 

Whereas if the bills were tagged a section 76 bill, the NCOP would have an authoritative say in the outcome of the bills. 

The referral back to Parliament highlights its ability to meaningfully consult with stakeholders most affected by the bills. The constitutional case of Doctors for Life International v Speaker (2005) ruled that public participation must be “meaningful”. The court did not define what “meaningful” participation is. 

This is a good thing, as these definitions are fluid and changes within a given context.

In my Master’s thesis (2016), I explored how various stakeholder perspectives and perceptions impact the legislative process. I used grounded theory methodology. This methodology allows one to gather different insights through literature review and to interview various stakeholders. I interviewed multiple stakeholders in policy and law-making and business about their views on the policy and law-making process. 

Amongst others, I concluded that the public must be involved in the law and policymaking process, particularly, those who participated in the process through public hearings must be kept up to date on the consideration of their submissions. Meaning that if a stakeholder has made a submission, that stakeholder must be informed of how his or her comment was considered and whether it was or why it was not included in the bill.  

I further concluded that applying this method and opening up the process to the public, will make the process more transparent; if the process was more transparent, stakeholders could keep law and policy-makers accountable for their decisions. I further concluded that this would enhance social capital which I defined in my thesis as being the trust citizens have in government.  

But why is public participation so important? Firstly, it allows Parliament, the legislatures and municipal councils to make better and more informed decisions on law and governing issues and be the voice of the people. South Africa’s democracy is both representative and participatory. In terms of sections 59, 72, 118 and 152 of the Constitution, Parliament, the legislatures and municipal councils, are mandated to conduct its affairs openly and involve the public in its business.  

Out of the three branches of government, it is the one that has the role of voicing the issues and concerns raised by the people in the governing process. This was confirmed in the constitutional case of Economic Freedom Fighters v the Speaker of Parliament (2016) and also known as the Nkandla Judgement. The judgement pointed out that “Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa”.

Secondly, public participation is one of the pillars of our democracy. 

There are many definitions defining what democracy is; however, amongst these, it has been noted that democracy must consist of four key elements. Firstly, it must have a political system for choosing and replacing government through free and fair elections. Secondly, there must be the active participation of the people as citizens in both politics and civic life. Thirdly, human rights must be protected. Fourthly, the rule of law must apply. This means that the law must apply equally to all.

Public participation, therefore, impacts the governance of a country. In terms of the Mo Ibrahim Index for African Governance (IIAG) 2018 report, South Africa, ranked number 7 for overall governance. The IIAG assesses the performance of all 54 African countries, each year, in categories such as human rights, the rule of law, sustainable economic opportunities and human development. In terms of human rights and participation, South Africa was at number 4 out of the 54 African countries. However, in the first five months of 2018, a total of 144 service delivery protests were recorded. The protests were against the lack of service delivery.  

The success of South Africa’s democracy is dependent on citizens not only voting but also actively participating in policy, law-making and governing processes affecting their lives. The legislatures should encourage the public to participate in its processes by establishing dedicated units to build these linkages and understandings with the public. Yes, due to the impact of Covid19, there are budget cuts throughout government, however, in time, this will enhance transparency and accountability. 

Most importantly, it will build social capital which is the linkages, understandings and trust the people have in its government.