Issued by the FW de Klerk Foundation 15/03/2024 

A recent Mail & Guardian article made reference to a letter sent by former President Mbeki to the Department of Home Affairs (“DHA”). In his letter, former President Mbeki criticised DHA’s White Paper on Citizenship, Immigration and Refugee Protection for containing serious inconsistencies and omissions. (Mbeki said this made it impossible for the public to provide “constructive comments”). (The Paper was opened for public comment by DHA from 13 November 2023 to 31 January 2024.)

Public participation is exactly what allows for better policies and laws to be made, because it exposes flaws, such as inconsistencies, unintended consequences and omissions to public debate, critique and recommendations. 

“Should a final version of the White Paper still contain the same inconsistencies and omissions, this will beg the question of whether the public participation was truly meaningful, because all views expressed by the public must be considered”, says Daniela Ellerbeck, Constitutional Programmes Manager at the FW de Klerk Foundation.

There is a constitutional requirement that the people who are affected by laws should have the right to be meaningfully involved in the making of these laws. The purpose is primarily to influence decision-making processes that affect the will of the people. The standard for whether the Government allowed for meaningful public participation is reasonableness, i.e. did the Government do everything reasonably necessary in the circumstances to ensure that people have both the information and the effective opportunity to exercise their political rights and have a say?

“The Foundation echoes the Constitutional Court that public participation provides vitality to democracy and encourages active citizenship when it comes to the country’s public affairs”, says Ellerbeck. “It strengthens the law’s legitimacy in the people’s eyes.”

In conclusion, the Foundation urges the State, whether it be the Executive or the Legislature, to ensure that all views expressed are considered.