Correcting the ‘original sin’ fairly | Fin24

Correcting the ‘original sin’ fairly

Dec 18 2018 13:42
Alicestine October

Former chair of Parliament’s Joint Constitutional Review Committee, Vincent Smith, has in the past proclaimed that the process for a proposed amendment to Section 25 of the Constitution is about “correcting the original sin”.

But what about correcting another less obvious constitutional sin – the right of the public to meaningfully participate in lawmaking processes?

Some lobby groups like AfriForum have already approached the courts, albeit unsuccessfully, seeking an urgent interdict against the committee’s report recommending a constitutional amendment for land expropriation without compensation.

The application was based on claims of a flawed public participation process. In a statement, Parliament labelled the court’s dismissal of the application as an “affirmation of the correctness of Parliament’s public participation process”.

But it is not just AfriForum who raised concerns over the process. And concerns over flaws in public participation are not new, nor is it limited to land.

During the final rounds of submissions in Parliament on Section 25, selected organisations and individuals were given ten minutes each to deliver their submissions. MPs thereafter had a chance to ask questions for clarification.

These questions, however, often descended into racial insults and nit-picking on issues and views not consistent with some MPs’ perspectives. Some MPs who disagreed with the public input given went as far as to claim some representatives of organisations like the Land Access Movement of South Africa was “in white pockets” and that their views were “[in]consistent with people who are landless”.

Women on Farms Project (WFP) was also scheduled to make a submission. According to WFP deputy director Carmen Louw, the organisation was given a set time to appear before the committee, but had to rush with a whole contingent of female farmworkers when the committee changed the time slot at the last minute.

Louw said making inputs were important to these women because the female farmworker community brings a unique perspective to the debate on land. On this day, about ten female farmworkers, many taking time off work, accompanied the WFP presenters to help state their case before their public representatives. WFP’s submission was also afforded only ten minutes and after some pleas only one of the farmworkers could read her letter in Afrikaans to MPs. No MP asked for a translation or engaged with it, adding to perceptions that these hearings are often rushed and a mere box-ticking exercise.

Research reports and surveys like those of the Parliamentary Monitoring Group (PMG) captured similar concerns and observations on the lack of sufficient public participation.

In its Public Participation Survey of 2017, PMG asked survey participants whether they were satisfied that their submissions had been “adequately taken into account or considered”. The survey found 30% of respondents were dissatisfied and 37% felt Parliament “did not take their public input seriously”. Almost 80% of the respondents felt that the committee’s feedback after their submissions during the public hearings was inadequate.

Some challenges identified in the survey related to a lack of time and capacity. Some respondents noted they felt “dejected” when stopped halfway through their presentations because “time had run out”. Other observations included respondents feeling that committee members do not seem to listen during hearings, belittle points of view that are generally not agreed with and that some chairpersons were too heavy handed and thus intimidating for participants.

Parliament’s own high-level panel, appointed to assess the impact of legislation passed since 1994, raised concerns over public participation and recommended a total overhaul of the public participation system. In a November 2017 report, the panel raised serious concerns over insufficient public hearings and their lack of inclusivity. The courts, too, left a trail of judgments highlighting the cracks in the national legislature’s public participation process. Not much has changed.

In December, the Constitutional Court again slammed Parliament for its failure to facilitate proper public participation. The South African Veterinary Society had asked the court to declare the section of the Medicines and Related Substances Amendment Act containing the word “veterinarian” as constitutionally invalid as Parliament “failed to facilitate public participation on the version of the bill that refers to veterinarians”.

In the final week before the Parliamentary recess, the national legislature established an ad-hoc committee to steer the legislative process for amending Section 25 of the Constitution. This committee is expected to report back to Parliament on 31 March 2019.

In terms of the rules of Parliament, it can receive submissions from the public, permit oral evidence and conduct public hearings. This presents Parliament with another opportunity to get this right.

The less obvious constitutional sin of inadequate public participation cannot simply be reduced to a dichotomy between those for and those against land expropriation without compensation.

These concerns are real. It speaks to the core of our democracy, where the public not only chooses who represents them, but should also be able to meaningfully participate in and influence decisions made on their behalf.

Any attempt to correct what has been labelled an “original sin” should start there.

Parliament passed a total of 23 bills this year, any of which could end up in court based on the same claims of inadequate public participation.

Only time will tell.

*Parts of this article originally appeared in the digital newsletter Parly Beat.

Alicestine October is a freelance journalist. 

This article originally appeared in the 20 December edition of finweek. Buy and download the magazine here or subscribe to our newsletter here.


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