In a big win for participatory democracy, the Constitutional Court’s unanimous decision in Mogale & Others vs Speaker of the National Assembly & Others has reaffirmed the principle of public participation in public policy-making.
The court declared the Traditional & Khoi-San Leadership Act of 2019 invalid, suspending the court order for 24 months to give parliament the opportunity to rectify the flaws in the law’s enactment process.
The case was about the extent of parliament’s obligation to facilitate public participation in the law-making process, through taking positive steps to enable such participation. The court ruled that parliament is obligated to take proactive steps to enable such participation, providing parties with a real opportunity to state their views and have a reasonable opportunity to influence parliament’s decisions.
The court confirmed several points regarding public participation, including that summaries of legislation have to be made available in at least three dominant languages of an area where public participation is proposed; invitations must be sent at least five weeks before public hearings; provincial legislatures must give at least seven days notice of a hearing; parliament must undertake workshops and awareness programmes before public hearings are undertaken; and notice thereof must to be issued timeously.
Copies of the bill must be made available before public hearings take place, giving participants enough time to acquaint themselves with the contents. Translation services of an adequate standard must be made available during public hearings; enough time has to be allocated to hearings to enable the greatest number of comments; and information about public participation must be made available to the widest audience possible, not just a cherry-picked list of stakeholders.
Transport must be provided to all parties interested in attending workshops and hearings where necessary, and reasonable measures must be taken to ensure that where meetings take the full day participants are meaningfully accommodated. Though the court did not specifically rule that food must be provided, it did state that legislators should not pretend to be unaware of the people’s socioeconomic circumstances in the particular locality in which hearings are being held.
Parliament cannot just cancel or change hearing dates and times without giving participants sufficient notice of such changes. Participants must receive the same treatment before and during hearings, to avoid favouring certain participants over others. All submissions must receive the same consideration.
It must be said that this is not the first time parliament has been found wanting in carrying out its public participation obligations. In Speaker of the National Assembly & Another vs Land Access Movement of SA & Others (2016) the court also deemed public participation in National Council of Provinces processes unreasonable and defective.
The importance of the latest decision by the Constitutional Court cannot be overstated for SA’s public policymaking. Similarly, it could not have come at a better time as SA’s policy-making seems to be veering off course. Over the past decade, the quality of the country’s policy and law making has declined noticeably.
While it was once believed that SA did not lack good policy, only good implementation, it is now clear that the country is struggling to create laws that can withstand judicial scrutiny. This is a reflection on the one hand of weak capacity in government and on the other of a populist governing party that seems more interested in ideological posturing than practicable solutions to SA’s many difficult challenges.
Yet the country has a robust policy-making framework in the Guidelines for the Conduct of Socio-Economic Impact Assessment System, adopted in 2015, and the National Policy Development Framework of 2020. Both documents provide a solid framework to guide policymakers on assessing policy options, facilitating stakeholder input, and ensuring the least difficult and most appropriate policy option is chosen. However, many government institutions seem to view these guidelines as an irritant rather than a tool for creating good policy.
Both government and parliament appear to have deemed the National Economic Development & Labour Council (Nedlac) to be superfluous. On important legislation, Nedlac has been bypassed entirely or its inputs simply ignored. This could reflect internal weaknesses at Nedlac, or an emerging view that Nedlac is an inefficient platform that serves no real purpose.
Particularly egregious is the case of the tobacco bill now serving in parliament, which the department of health seems to have outrightly refused to table. Despite protests by opposition parties, the responsible committee has not seen fit to send the bill to Nedlac.
It is difficult to escape the conclusion that the government and the ANC majority in parliament are reluctant to consider views not aligned to their chosen policy options. The Copyright Amendment Bill adopted by the National Assembly on September 1 2022 is a classic example of parliament simply refusing to assess properly evidence that contradicts the ANC’s chosen path. Similarly, the recently adopted National Health Insurance Bill is by most accounts a court case waiting to happen.
Refocusing policy-making
The Constitutional Court’s Mogale ruling is an important reminder to our government and parliament that participatory democracy remains the ideal to which all political players should aspire, and that elitist machinations designed to deprive ordinary South Africans of a voice in the policy-making space can only impoverish our democracy. The decision also affirms in clear terms that public participation must not be an exercise in managing optics, but rather a genuine effort to enable all South Africans to make their voices heard on critical issues that affect them.
No doubt, implementing the decision of the court will be expensive. However, the government and parliament cannot use cost as an excuse to deny South Africans the opportunity to have their say. Public participation must be broad and in every respect.
• Gcoyi is MD of Frontline Africa Advisory. He writes in his personal capacity.
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