High Level Panel recommendations impact on Parliament’s Public Participation Model

Joint Rules

27 November 2018
Chairperson: Ms B Mbete, Speaker of Parliament & Ms T Modise, Chairperson of the NCOP
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Meeting Summary

The Joint Rules Committee met to discuss the High Level Panel’s (HLP’s) report on Parliament’s public participation model.

The report pointed out some of the challenges faced by the current model, indicating that the country’s electoral system needed to be reviewed. It proposed a change from a proportional representation model to a mixed model, which would include constituency-based elements. This would improve public participation by linking Members of Parliament (MPs) to constituencies, and enable voters to contact those that they had voted for. At the same time, it would make the MPs more accountable to their constituents,

Members held differing views as to the current extent of public involvement in developing legislation, and the Parliamentary feedback system. The role of the National Council of Provinces (NCOP) was seen as important in this regard. Some Members felt that a change in the electoral system was not necessary and that other avenues should be explored.

The Committee did not reach quorum, so no decisions were taken.

Meeting report

Ms Ressida Begg, Division Manager; Core Business Support, Parliament, presented the High Level Panel (HLP) report to the Committee, and began by focusing on the challenges.

The first challenge was that of informing and educating. The Constitution prioritised process values that support informed participation. Public participation in existing legislation should provide an opportunity to tap into the capacity, energy and resources that vest within citizens to drive change and to meaningfully participate in processes that affect their lives. Such processes would empower the public with more information and knowledge about the new members of the executive and their relative skills, experience and merits, and would provide a forum where appointees can publicly commit themselves to applicable standards and to certain objectives, against which their subsequent conduct and performance can be measured. An empowered public would, in turn, be able to assist the legislatures to ensure that executives were more accountable to electorates. There was a lack of informed participation, limited access to quality education, lack of access to information and a lack of education and empowerment.

The next challenge identified was that of consultation. Participation was often confined to consultations with citizens, including preparing integrated development plans, which were intended to be a main instrument for participatory development planning and budgeting at the municipal level Actual participation, however, from ward committees to the Integrated Development Plan (IDP) process, and to workplace forums, had been limited mainly to special interest groups or hindered by short-term self-interest. There had been a series of judgments from the Constitutional Court about the need for effective public participation in the legislative process. The HLP was concerned about repeated failures to sufficiently engage those directly affected through inclusive public hearings, as evidenced by these judgments.

Public involvement was also listed as one the challenges. There was limited public participation, because public participation was not compulsory in local government processes. Public participation at this level was not substantial and not meaningful. The period allocated to participation was too short due to voluminous and complex documents that needed to be perused. There were difficulties for illiterate, potentially affected, communities to participate in customary consultation and negotiation processes in traditional communities. Ward committees were failing to enhance participatory local governance. Among the main reasons for this failure was that communities sometimes perceived that ward committees were ‘owned’ by the ward councillor. Animosity among political parties often hampered participation, and civil society was often deliberately excluded from governance. The functioning of ward committees was affected by the lack of capacity of elected members. The communication links among the councillor, the ward committee, and the community were insufficient.

The need for greater public understanding of ward councillor roles and responsibilities was a critical missing link in this public accountability mechanism. The 2011 World Bank study states that the main reasons for failure to implement public participatory approaches are that the government develops ambitious delivery targets to overcome the backlog in services and provides ample financial resources to meet these targets, but national, provincial, and local institutions for service delivery are still weak, along with technical and managerial capacity. Many sectors stress community and user participation initially, but participation systems are time-consuming and hard to scale, and policy-makers fear this would slow implementation. Consequently, the sectors rely on centralised mechanisms focused on outputs, rather than on more participatory approaches focused on outcomes. The sector programmes invariably became ‘silos’ – supply-driven and focused on the delivery of sector outputs – and in the process take power from citizens. The 30-day timeframe for public participation was too short due to voluminous and complex documents that needed to be perused, and there were difficulties for illiterate, potentially affected, communities to participate. The feedback loop from communities to legislation was dependent on many factors, partly on the electoral system in place. Communities were not getting adequate feedback on outcomes of legislation.

The recommendations were to inform and educate. Access to quality education, access to information, and informed participation were critical for citizens to hold government accountable and to participate effectively. Knowledge of nation-building goals and constitutional values, equal opportunities, active citizenry, and the social compact, empower citizens for citizenship. There needs to be a greater understanding of ward roles and responsibilities.. Community participation has to be achieved through capacity building and active empowerment of role players so they can clearly and fully understand that participation can be meaningful only if adequate, relevant and timely information is provided.

Parliament should facilitate meaningful and effective public participation in the legislative and policy-making cycle. It should consider opening up debate on the desirability and feasibility of a system that incorporates public participation and Parliamentary oversight for certain categories of appointments to public office to increase independence (where required) and accountability, and to achieve the objectives of a capable developmental state. The legislative process should be overhauled. The accountability of Parliament to the public should be strengthened by more direct linkages between Members of Parliament and their constituencies. The feedback loop from communities to legislation depends in part on the electoral system in place.

The Panel recommends that Parliament amend the Electoral Act to provide for an electoral system that makes Members of Parliament accountable to defined constituencies in a proportional representation and constituency system for national elections. Parliament should consider opening up debate on the desirability and feasibility of a system that incorporates public participation and Parliamentary oversight for certain categories of appointments to public office to increase independence (where required) and accountability to achieve the objectives of a capable and developmental state.

Public consultation and involvement in the law-making process means that an extensive public participation process is required. Parliament should consider identifying and reviewing all legislation that includes a public participation component, including those that relate to Parliament’s interaction with citizens, and ensure that it conducts oversight of, and ensures adequate resources for, the implementation of these provisions, so that where provision is made for the public to be consulted, this consultation is meaningful and effective. The Panel would like to see a more active Parliament, one that ensures the strict enforcement of (or, where lacking, introduces) penalties for lack of performance by the Executive. Parliament should also facilitate meaningful and effective public participation in the legislative and policy-making cycle.

On the involvement side, timeframes for public participation processes need to be extended. Parliament should consider having regular annual mandatory dedicated intersectoral public hearings with departments and stakeholders to obtain feedback from departments and input from the public on progress with the implementation of legislation. Parliament should consider identifying and reviewing all legislation that includes a public participation component, including those that relate to Parliament’s interaction with citizens, and ensure that it conducts oversight of, and ensures adequate resources for, the implementation of these provisions, so that where provision is made for the public to be consulted, this consultation is meaningful and effective.

Discussion

Mr S Tsenoli (ANC), suggested that this was a perfect opportunity for the Committee to look at the gaps that may have existed in their own public participation model. The definition of public participation did not include people solving their own issues, and that was something they should look into. The Cape Town partnership was an interesting model that was designed and run by the people with the support of the municipality and other organs of government. Similarly, in Durban, the Johnny Makhathini multimedia centre was a partnership that the people run, with support from the municipality. This form of public participation had both weak and strong points, with the weak points falling under the legislation that governed these partnerships.

The public participation model was about the government and the public working together, but it also meant the public creating opportunities to be involved in carrying out what may sometimes be thought to be only government work. He recommended that the Committee look at what was known as “Bringing Citizens to The Table”, which was done in the United States of America, which would give the Committee a good idea of the work done in involving the public in the work that government does. There was an understanding, however, that there was some work that the public could not do themselves as they often did not have the knowledge, skills and resources to carry out this particular type of work.

Ms M Boroto (ANC) argued that wanting to change the Electoral Act was a bit problematic. There were Parliamentary Constituency Offices (PCOs) in the constituencies and whenever there was legislation that needs to be processed, there were ways of processing the legislation through public hearings as well as through the National Council of Provinces (NCOP), which was directly linked to the provinces. Changing the electoral system meant amending the Constitution. They needed to test the current system further before deciding to change it, and rather improve on it then change it.

Ms T Didiza (ANC) suggested that before changing the electoral system, they needed to look at other jurisdictions that use this system and take from their successes and implement them in their own system. There was also a concern with some of the recommendations in that they related to the local sphere of government, and thus there was a conflation of the different spheres of government. The national government must be careful not to take on the legal mandate of another sphere of government.

Mr J Mthembu (ANC) said that the solution that was being suggested in the report was already in existence at the local level, agreeing with Ms Didiza. When conducting the review, it was important to look at the public participation mechanism at the local level, taking into account the constituency-based election of ward councillors. To say that feedback was not given to the people was inaccurate as the NCOP, in their public participation model, reported back to their respective communities. The review should not be done in abstract, but should also take into consideration what the communities had done on their own. The review also needed to ensure that the different spheres of government were not conflated, and that each mechanism in each sphere of government should be listed as such.

Mr J Steenhuisen (DA) said that there was a need in South Africa to reinforce the causal link between Members of Parliament and the communities that elect them. One of the concerns from both national and provincial government was that people feel disconnected from who their representatives are. One had to find a way to bring people closer to the Parliamentary processes. There was not enough use of the chapter 9 institutions, and incorporating their work in the work of Parliament.

Ms C Labuschagne (DA) suggested that they needed to start looking at the process of enacting new legislation and reviewing existing legislation. There was a public participation process involved in enacting new legislation. The NCOP had an explicit role to ensure that the impact of legislation should be measured and monitored. When taking Parliament to the people, they work with themes and not legislation, so there was a gap between oversight and public participation. This needed to be changed within the NCOP. The NCOP had a mandate to ensure that provinces had representation in legislation. This included representation in both the making and the reviewing of laws and seeing what the impact of that law would be on the provinces.

Mr A Mahlalela (ANC) was not sure of the extent to which the HLP looked at Parliament in its entirety when conducting the review, including the NCOP and its involvement in legislation. When legislation is referred to the NCOP, the NCOP goes to the provinces and involves the community in the legislative processes. Regarding feedback on legislation passed by Parliament, he agreed with the report, as he did not remember Parliament having a feedback mechanism on legislation passed and the impact it had on communities. Parliament needs to create a feedback mechanism.

Chairperson Modise disagreed with Mr Mahlalela, pointing out that in the rules of Parliament there was provision for feedback. The powers of Committees enabled them to determine their own agenda. Thus they were not precluded from including feedback mechanisms in their mandate.

Mr M Waters (DA) asserted that there was a disjuncture between Parliament and the public. Bringing in constituencies would make Members of Parliament more accountable to the voters. Voters know who to go to in local governments because they voted for the person, whereas at provincial and national level, they do not know who is representing them as they voted for a party and not the people explicitly. There was a need to look into a system that made Members of Parliament more accountable to the people.

Mr N Matiase (EFF) said that there were three inherent conceptual weaknesses with Parliament, and these weaknesses needed to be overcome. The first was the over-reliance on its own internal models. These models were often bureaucratic and obsolete, including relying on apartheid era legislation. Secondly, there was a post-democratic dispensation where the ruling elite often display paranoia against civil society organisations, which were often treated as agents of foreign powers. This paranoia had to be overcome because if civil society organisations were not encouraged, it weakened the whole concept of public participation. Thirdly, there was a pliant citizenry which accorded government divine powers, allowing it to govern around the concept of democracy without seeking to be held accountable. There needed to be an active citizenry which holds their government accountable.

Ms B Mbete (ANC), suggested that they should identify some issues that would find their way into the training of the sixth Parliament. She said the voluminous documents mentioned as time frame issues, were not a concern as she could not imagine that those in the rural areas would even have access to these documents. The issue here was the real problems that people faced on a daily basis -- that was what that should be tackled, and not the concern with voluminous documents.

Mr S Mohai (ANC) agreed that there needed to be a holistic review. He suggested that the current Parliament look at the status quo to get an idea of what was working and what was not working, so as to better assist the sixth Parliament.

Mr Mthembu made reference to jurisdictions with a constituency-based electoral system, and commented that even these systems had not shown an improvement in public participation. The constituency-based model did not guarantee public participation. He did not remember meeting with the HLP to discuss what public participation model they used. One could only make a meaningful criticism of something that one had knowledge of.

Mr Waters said the constituency-based electoral system was not only limited to public participation, but also branched into how one could make MPs more accountable to voters. He commented that MPs did not bring constituency issues to Parliament.

The Chairperson concluded the meeting by stating that because they had not reach a quorum at the beginning of the meeting, they had agreed that they would discuss the HLP report but not take any decisions.

The meeting was adjourned.

 

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