As the legal fight over the National Health Insurance (NHI) Act becomes increasingly complex, the Board of Healthcare Funders (BHF) has launched a new broadside against the fiercely contested legislation that all of us can understand.
The BHF, representing medical schemes, has previously attacked the president’s decision to assent to the act, while five other parties have separately taken aim at its measures for reforming SA’s health system. It has now turned to the Constitutional Court with an attack on parliament’s public participation process when it considered the NHI Bill. Its core argument is that MPs in the previous administration merely paid lip service to the consultation required by the constitution during the legislative process, and that the ANC used its majority at the time to muscle through a bill that differed in no material way from the version submitted by the executive.
The fact that the bill did not evolve during its four-year passage through parliament is evidence that the extensive public input solicited by MPs was ignored, contends the BHF.
At this stage, we only have the BHF’s argument to consider, as parliament has yet to lodge its response. And the Constitutional Court’s final decision on the matter is likely to be many months, perhaps years, away. Even so, the scrutiny demanded by the BHF of parliament’s processes is important in the here and now, because it reminds MPs that what they do matters.
The constitution places an obligation on parliament to encourage meaningful input into its decision-making processes, and yet time and time again it falls short. In 2023, for example, the SA Iron and Steel Institute successfully challenged parliament for inserting material changes to the National Environmental Management Laws Amendment Bill without public consultation. In its ruling, the Constitutional Court reminded MPs that parties interested in legislation should be given a real opportunity to have their say, that their views matter and that their input should be properly considered.
— The constitution places an obligation on parliament to encourage meaningful input into its decision-making processes and yet time and time again it falls short.
The trouble is that none of the laws governing parliament set out exactly how this should be done, leaving its committees with wide discretion over the extent to which they involve the public in their processes and how they solicit their views. Throw in budget constraints and, to put it politely, wide variation in MPs’ intellectual heft and expertise — and it’s not hard to see why committees approach the job as in as varied a manner as they do.
Some National Assembly committees take draft legislation to the provinces for public hearings, while others leave that job solely to their counterparts in the National Council of Provinces. Some diligent and hardworking MPs take it upon themselves to read as much of the material that is submitted during the public participation process as they can, while others are content to rely on committee support staff and political party researchers. And while committees can theoretically commission research to help fill gaps in their understanding or analyse submissions, in reality they just don’t have the money to do so.
Repairs are still under way to the damage done by the fire that swept through the parliamentary precinct in 2022, and many committees still rarely meet in person, depriving ordinary people of the opportunity to observe proceedings in person. And anyone who wants to scrutinise the input committees receive during the public consultation process on legislation or public inquiries faces an almost impossible task: there is generally no publicly accessible repository of the written submissions received by committees, and there is limited online access to the presentations that are made during oral hearings.
None of this makes for transparent and accountable lawmaking.
The ANC no longer holds an outright majority, but if parliament fails to perform its oversight duty properly, we remain at risk from an executive that can drive through legislation without the checks and balances that are vital to a successful democracy. It is time for MPs to up their game.
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