We write with grave concern that there has been a failure to meet these constitutional standards in the public participation process concerning the Electoral Amendment Bill, writes a group of civil organisations.
Dear Mr Chabane
Last month, the much-anticipated public hearings into the government’s proposed new electoral bill were held, affording South Africans the opportunity to have their say on which electoral system is to be adopted and implemented ahead of the 2024 national and provincial elections.
This process is considered arguably the single most important piece of legislation before Parliament since the dawn of democracy thanks to the seminal New Nation Movement judgment handed down by the Constitutional Court in June 2020. As such, the public participation process ought to reflect this and be carried out authentically.
We hereby submit as the undersigned signatories that the process was flawed for the following reasons:
Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution place a constitutional duty on the National Assembly, National Council of Provinces and provincial legislatures respectively to facilitate public participation when executing their legislative processes.
While these legislative bodies have broad discretion in determining what processes and procedures will be utilised to facilitate public involvement, the Constitutional Court (CC) over the years has developed tests and principles to determine whether the modes of operation adopted by the legislative bodies are constitutionally compliant and truly constitute meaningful participation.
In Doctors for Life International v Speaker of the National Assembly, the CC succinctly explains this duty by stating “what is ultimately important is that the legislature has taken steps to afford the public a reasonable opportunity to participate effectively in the law-making process”. The CC distilled two aspects of the duty to facilitate public participation. The first is the duty to provide meaningful opportunities for public participation in the law-making process and the second is to take measures to ensure people can take advantage of the opportunities provided. The public participation process should encapsulate providing information and building awareness, with a view to partnering in decision-making.
Considering these established principles, we write with grave concern that there has been a failure to meet these constitutional standards in the public participation process concerning the Electoral Amendment Bill. One South Africa attended these public hearings across the country both to make oral submissions as well as to act as a monitoring group, to ensure South Africans were afforded a meaningful opportunity to participate in what is arguably the most important piece of legislation in our democratic dispensation. Much to our dismay, we observed this process was flawed and there were serious issues in the process that jeopardised the meaningfulness of the process. To that effect, we note the issues:
1. The committee failed to properly educate the public on the Amendment Bill and the purpose of the public participation process.
In Doctors for Life International, the CC directed that:
It is evident Parliament and provincial legislatures have failed in their duty to educate the public on the import of the bill as well as the purpose of the public’s participation. The most glaring example of this is many people have made submissions in favour of or against the inclusion of independent candidates. These submissions were philosophical in nature and largely referenced people’s experiences, positive and negative, in local government and some idealised what independents could achieve in the national government to counteract the shenanigans of party politics in Parliament.
Participants clearly did not understand the CC had already made a ruling to include independent candidates in our electoral system and the purpose of these hearings was to decide on a system that would best incorporate independent candidates into our electoral system. Instead of participants picking between a constituency-based system (as proposed in the Lekota Bill) versus a proportional representation system (in the Amendment Bill), participants are two years behind the curve and still debating the inclusion of independent candidates as a concept.
The committee, as a throwaway line, also said people could express a choice between the minority and majority views expressed in the MAC report. This added absolutely no value to the discussion as firstly, most South Africans do not know what the report is and, secondly, the committee failed to provide the public and participants with the report. To expect ordinary South Africans to express a view on a high-level report that was commissioned for the benefit of the minister and committee with no education on the options is not unreasonable, but also incredibly confusing – the antithesis of the CC’s requirement that they “provide meaningful opportunities for public participation in the law-making process”.
This public participation process was about electoral systems and the question that should have been put forward was whether the public wanted a constituency-based system (Lekota Bill) or a proportional representation system (Amendment Bill) to integrate independent candidates.
Because of the lack of public education, large parts of the data provided in these hearings are totally inconsequential and unhelpful to the committee members who need to report back to Parliament.
2. The committee failed to give adequate notice to the public before the hearings.
In Democratic Alliance v eThekwini Municipality, the Supreme Court of Appeal (SCA) held the council had not complied with its own policy and the seven-day notice period provided to the public to make written submissions was wholly inadequate, as there was no urgency for the decision to be made. The SCA noted common sense dictates where there is no immediate urgency; members of the public should be afforded a reasonable time period to submit inter alia comments and objections.
Although the above findings by the SCA are in respect of notice periods for written submissions, the overriding principle that comes forth from this dictum is notice periods provided for public participation should be reasonable, adequate and in proportion to the urgency of the circumstances at hand.
The CC in Doctors for Life also held that even where matters are urgent, committees should not be too hasty to cut down on time periods for public involvement. As Ngcobo J said: “The timetable must be subordinated to the rights guaranteed in the Constitution and not the rights to the timetable.”
In Moutse Demarcation Forum v President of the Republic of South Africa the Court held that:
In Doctors for Life the CC held in relation to notice:
Two principles may be deduced from the above statements. The first is the interested parties must be given adequate time to prepare for a hearing. The second relates to the time or stage when the hearing is permitted, which must be before the final decision is taken. These principles ensure meaningful participation is allowed. It must be an opportunity capable of influencing the decision to be taken.
On the first score, the fact the committee gave notice to the public on 3 March 2022 that public hearings for the Executive Bill would commence on 7 March 2022 (a mere four days’ notice) is unreasonable and inadequate in that, although the deadline for finalisation of the Executive Bill is looming, by making the notice period so short, the committee was hindering the public participation process in a manner disproportionate to the urgency of the circumstances.
It is further concerning Parliament has resolved to apply to the CC for an application for an extension of the deadline. How can there be an application for an extension, yet the public participation process was so rushed?
On the second score, the fact the hearings are taking place merely three months before the deadline is concerning because Parliament was given an entire two years to legislate. How much impact can a public participation process have on a bill that is due in a few months? Negative inferences can be drawn from the timing of the process, such as that the committee has already decided on a bill and this process was merely to rubberstamp that choice, or Parliament will choose the easiest and simplest bill to meet deadlines. Both outcomes are undesirable in a participatory and representative democracy.
We also note there were little to no advertisements made online, on social media, on local radio stations, newspapers or national television stations regarding the public hearings. This further flies in the face of adequate notice to facilitate meaningful public participation.
3. The legislatures acted unreasonably
The legislature has the duty to act reasonably in executing its duty to facilitate public participation and that standard must be applied in relation to measuring the extent of compliance with the duty to facilitate public participation in the legislature.
The CC has held reasonableness will be judged by factors including:
The test set is whether the legislature acted reasonably in discharging the duty to facilitate public involvement. On the balance of the facts presented, we do not believe the legislatures have acted in a manner that is reasonable.
Therefore, we are of the opinion that the public participation process was flawed in numerous respects and ultimately unconstitutional.
We hereby request the committee to, within 14 days, advise us on how it intends to remedy the public participation process in respect of the Electoral Amendment Bill before the deadline for the publication of the bill, alternatively the extended deadline.
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