Issued by the FW de Klerk Foundation on 11/01/2024

Recent events have highlighted concerns about Parliament listening to the people. South Africa is a participatory democracy. This means more than simply voting in elections. It means that the people have a meaningful voice in the law-making process – based on the constitutional requirement that those who are affected by legislation have the right to be involved in the legislative decision-making process.

The Constitution makes explicit provision for the people’s voice to be heard by Parliament when a proposed law, a bill, is making its way through both houses – starting in the first house, the National Assembly (NA) and thereafter, when it moves on to the second house, the National Council of Provinces (NCOP).

The Constitution mandates both houses to include the public in the law-making process: section 59(1)(a) mandates the NA to “facilitate public involvement in the legislative and other processes of the Assembly and its committees.” Similarly, section 72(1)(a) directs the NCOP to “facilitate public involvement in the legislative and other processes of the Council and its committees.” These sections emphasise the fundamental role of public engagement in shaping legislative decisions, ensuring transparency, and upholding the principles of our democratic governance.

Parliament’s duty to “facilitate public involvement”, however, requires more than mere information and a “tick box exercise”. Parliament can choose what form public involvement takes, but whatever form it takes, it must allow for meaningful public participation. This means that the public must be aware of the proposed law and have enough time to have an adequate say.  The entire process is calculated to produce better outcomes – i.e. better laws – by subjecting the bills to the test of critical debate. 

This is why it is concerning when Parliament fast-tracks legislation such as the Electoral Matters Amendment Bill (“the Party Donation Bill”). The bill was opened for the public’s comment during the festive period, with joint public hearings to be held by the NA and NCOP committees working on the Bill. Concerns arose about the reduced chance for public participation because of this accelerated process, especially because it was reported that the Bill’s passage is targeted for completion by the end of February 2024.

The same concerns over adequate public participation because of truncated timelines hold for other bills, such as the General Intelligence Laws Amendment Bill (“the GILAB” or “Spy Bill”) and the Public Procurement Bill. 

Parliament’s rush to process these laws is understandable, given that any unfinished bills will lapse once this current Parliament dissolves. These bills would then have to start the journey through both houses of Parliament again in the newly elected Parliament post-elections.

However, the need to save time does not do away with Parliament’s duty to give citizens a meaningful opportunity to be heard, which includes a reasonable opportunity to: know about the proposed law, have an adequate say and influence decisions. The reasonable opportunity is something that many have expressed concerns about when it came to, for example, the National Health Insurance Bill.

The problem with achieving a short-term goal such as passing a bill (but where the public feels aggrieved and not listened to) is that the long-term goal of its implementation often gets derailed due to court challenges. 

In conclusion, the Foundation urges Parliament to navigate the delicate balance between expedited legislative timelines and affording the public a meaningful and reasonable opportunity to engage. By ensuring that citizens have a fair chance to be heard within a reasonable timeframe, Parliament can not only meet its constitutional obligations, but also avoid potential court challenges and, more importantly,  reinforce the public’s trust in the democratic process.