The Constitution empowers the Executive to prepare and initiate legislation while Parliament has both an initiating power and the ultimate power, as representatives of the people, to consider, pass, amend or reject any legislation. Before proposed legislation (a Bill) is formally introduced in Parliament for consideration and processing, it goes through several stages that are often unknown or unclear to the public.

The focus of this blog is on four areas that are critical to the legislative process, namely: the Socio-Economic Impact Assessment System; National Economic Development and Labour Council (NEDLAC) negotiations; Bill Certification and Cabinet Approval. These are all before the introduction of a Bill in Parliament. 

 

The Socio-Economic Impact Assessment System (SEIAS)

The SEIAS is a framework and process designed to assess and analyse the potential social, economic, and environmental impacts of proposed legislation or bills before they are introduced in Parliament. The SEIAS Unit is housed within the Presidency- Policy and Research Services,  which ensures the implementation, quality control and capacity support for SEIAS across government.

SEIAS reports play a crucial role in the legislative process, particularly before Bills are introduced in Parliament. The purpose and importance of SEIAS reports are multifaceted:

• Understanding Impacts: SEIAS reports help the Executive and Parliament (policymakers and legislators) understand the potential social and economic impacts of proposed legislation. This includes both intended and unintended consequences that may arise from the implementation of a proposed Bill. The reports facilitate the identification and assessment of potential risks associated with the proposed legislation. This includes evaluating the risk of unintended negative consequences, legal challenges, or economic disruptions. SEIAS reports also provide insights into the financial and resource requirements for implementing and enforcing the proposed law, aiding in budgetary planning.

• Informed Decision-Making: By providing a comprehensive analysis of the potential effects of proposed legislation, SEIAS reports enable lawmakers to make more informed decisions. This is crucial for ensuring that legislation aligns with the government's broader policy objectives and does not inadvertently harm certain sectors of society. SEIAS emphasises the importance of engaging with stakeholders, including government agencies, businesses, non-governmental organisations (NGOs), and the general public. Input from all relevant stakeholders helps in identifying potential concerns, ensuring a more comprehensive impact assessment.

SEIAS reports are typically submitted with the introduced Bill to Parliament. The relevant parliamentary committees use SEIAS reports as part of their deliberations during the processing of bills. The inclusion of SEIAS reports allows MPs to consider the broader implications of proposed legislation beyond its immediate legal and regulatory effects.

In summary, SEIAS reports are essential tools for promoting evidence-based policymaking, enhancing transparency, and ensuring that proposed legislation aligns with the broader goals of the government while minimising negative impacts on society.

 

NEDLAC and Public Consultation

NEDLAC is a forum for consultation and collaboration between government, organised labour, business and community organisations on socio-economic issues and policy formation. NEDLAC provides an opportunity for stakeholders to comment on draft Bills and propose amendments. 

It is important to note that not all draft Bills are required to go through NEDLAC before being introduced to Parliament. The involvement of NEDLAC in the legislative process depends on the nature of the Bill and whether it falls within the scope of issues covered by the Council’s mandate. The NEDLAC Act of 1994 outlines the areas where NEDLAC should be consulted. Generally, Bills that pertain to labour, economic policy, social matters, and other related issues may be subject to consultation with NEDLAC. However, the decision to refer a specific draft Bill to the forum is made by the relevant government Department responsible for the Bill, in consultation with the Minister of Employment and Labour.

In its 2022/23 annual report, NEDLAC states that it concluded reports “on ten Bills and policies, while five engagements were still ongoing by the end of the reporting period. The more significant bills included the Public Procurement Bill and the Electricity Regulation Amendment Bill.”

The Council’s functions can be summarised as follows: 

• Consultation and Negotiation: NEDLAC provides a platform for the key stakeholders to engage in discussions regarding proposed legislation. Stakeholders consult, negotiate, and sometimes compromise to reach a consensus on proposed legislation. NEDLAC allows for the input of different stakeholders, ensuring a more comprehensive and inclusive approach to policy development. The forum also fosters an environment of social dialogue and collaboration as it ensures that different perspectives and interests are considered and, if possible, aligned for the common good.

• Impact Assessment: NEDLAC assesses the potential impact of proposed legislation on various sectors of society. This impact assessment is crucial in understanding how a new law might affect businesses, workers, communities, and the economy as a whole. However, the technical work of producing SEIAS reports, including data collection and analysis, is generally carried out by the relevant government departments proposing the Bill. 

• Recommendations and Agreements: The Council can make recommendations or agreements on behalf of its constituent groups regarding proposed legislation. This can include proposed amendments, suggestions for improvement, or even agreements that all parties support concerning specific aspects of the legislation.

Notably, as is the case with all stages of the legislative process, the duration for processing proposed legislation through NEDLAC can vary widely depending on the intricacy of the legislation, the level of consensus among the social partners, and the urgency of the issues at hand. There is no fixed or average timeline for NEDLAC processes, as each case is unique. For example, it took nearly three years for NEDLAC to negotiate and produce a report on the draft National Minimum Wage Bill prior to the Bill’s introduction in 2017.

Although NEDLAC's involvement in the pre-introduction stages of legislation aims to ensure that proposed laws are well-considered and take into account the diverse interests and impacts they may have across society, like any public forum and institution, it is not without criticism. 

Some critics have argued that the structure of NEDLAC is not fully representative of all relevant stakeholders, and there are challenges in ensuring that the voices of marginalised groups are adequately heard. Concerns have been raised about imbalances in influence among the different social partners within the forum. For example, there is a general perception that business interests might have more sway than labour or community interests. Second, the consensus-building nature of NEDLAC's processes can be time-consuming. This tends to slow down the decision-making process, especially when there is an urgent need for legislation or policy changes. Related to this, the consensus-driven approach may lead to compromises that some stakeholders find unsatisfactory, and this impacts the efficiency of this important legislative process and the ability to implement effective policies. 

Lastly, even if consensus is reached within NEDLAC, there are, by and large, challenges in the implementation of agreed-upon policies at the Executive and parliamentary level. This is because NEDLAC agreements are not necessarily binding and do not tie Parliament’s hands. The ultimate sovereignty lies with Parliament when it comes to lawmaking. 

 

The Office of the Chief State Law Advisor and Bills Certification

The certification Bills before their introduction to Parliament is a crucial process involving the Office of the Chief State Law Adviser (OCSLA). Before a draft bill is submitted to the Cabinet for approval, it is reviewed by the OCLSA to ensure that it is legally sound, constitutionally compliant, and technically accurate. 

The State Law Advisor provides legal guidance and certification, stating that the Bill is in order from a legal perspective. Beyond legal drafting in consultation with the relevant Department, the OCLSA’s roles can be condensed as follows:

• Review and Analysis: The OCSLA examines proposed Bills, analysing them for legal coherence, consistency, and alignment with the government's policies. The State Law Advisor assesses the technical and legal aspects of the proposed legislation, making recommendations and suggesting potential amendments to improve the quality and effectiveness of the laws.

• Alignment with Constitutional Principles: Ensuring that proposed legislation aligns with the principles and provisions of the Constitution is another vital aspect of the State Law Advisor's role. They assess the constitutionality of the proposed Bills and ensure they comply with constitutional requirements, and prevent the introduction of laws that could potentially be deemed unconstitutional or legally flawed. 

• Technical Assistance and Quality Control: The State Law Advisor ensures the quality and legal integrity of the proposed legislation. They help in the elimination of any ambiguities, contradictions, or potential legal loopholes that could arise within the text of the Bills. As mentioned earlier, the State Law Advisor also provide technical assistance to parliamentary committees and government officials in understanding and addressing legal complexities, ensuring that the proposed laws are well-structured and enforceable.

Notably, the Bill certification process is not without flaws. Some critics could argue that, in some instances, there has been insufficient scrutiny in the sense that the certification process does not always involve a thorough enough examination of the legal and constitutional aspects of proposed Bills. A case in point would be the introduction of legislation that later faces legal challenges or is found to be unconstitutional by the courts.

It is also worth noting that even if the Office of the State Law Advisor flags a Bill as potentially unconstitutional, it can still be introduced in Parliament. The OCSLA operates in an advisory capacity. This means that even if it flags a bill as potentially unconstitutional, the relevant Minister proposing the Bill may decide to proceed with the Bill, although this is very rare. However, such flagging is undesirable and serves as a significant warning about potential constitutional issues and legal challenges that the proposed legislation may face.

In some cases, if the concerns raised by the OCSLA are considered serious, the Bill may be amended to address the constitutional issues before being introduced in Parliament. Alternatively, the bill may be withdrawn altogether.

Also, as the parliamentary process, following the introduction of a Bill, allows for extensive consideration and debate by MPs, a flagged Bill’s constitutionality may be a subject of back-and-forth committee discussions, and amendments may be proposed to address the identified issues. The role of the OSLA can also extend to helping the relevant parliamentary committee process such Bills. 

Ultimately, the constitutionality of any piece of legislation can be challenged in the courts. If a Bill is passed by Parliament and becomes law, it may still face legal challenges in the courts, and the judiciary will have the authority to determine its constitutionality. 

 

Cabinet Approval and the Introduction of Bill in Parliament

After the certification process, the draft Bill is submitted to the Cabinet for approval. Cabinet approval is a crucial step as it signifies the Executive’s endorsement of the proposed legislation.

The Cabinet operates through a system of cluster committees to facilitate more detailed consideration of specific policy areas and issues. Cabinet cluster committees are responsible for reviewing and coordinating matters within their respective clusters before they are presented to the full Cabinet for approval. Cabinet cluster committees consist of relevant ministers and officials responsible for specific policy clusters (e.g., economic, social, governance). While cluster committees may discuss and coordinate on policy matters, they often operate at a higher level of abstraction than the specific details of individual Bills. However, if a proposed Bill falls within the purview of a specific cluster, it may be discussed and reviewed by the relevant cluster committee.

After the cluster committee has discussed and reached a consensus, a draft Bill is then presented to the full Cabinet for approval.

Following Cabinet approval, the draft Bill is then introduced in either the National Assembly or the National Council of Provinces, depending on the type of Bill. 

This blog does not cover all pre-introduction stages exhaustively. You can read more on the Legislative Process.