During Parliament’s fifth term, many Bills were introduced that bear a potentially significant impact on people living in rural areas or as part of traditional communities. The list of wide-ranging Bills includes the Communal Property Associations Amendment Bill [B12-2017], the Restitution of Land Rights Amendment Bill [B19-2017], the Draft Communal Land Tenure Bill (2017), the Draft Expropriation Bill (2019), and the many Bills pertaining to traditional leadership. This article is particularly concerned with Parliament’s process of public engagement on three bills related to traditional leadership and governance: the Traditional Leadership and Governance Framework Amendment Bill [B8-2017] (“TLGFAB”), the Traditional and Khoi-San Leadership Bill [B23-2015] (“TKLB”) and the Traditional Courts Bill [B1-2017] (“TCB”). At the time of writing, Parliament has passed the TKLB and TLGFAB, which are now awaiting signature by the President, while the TCB awaits finalisation by the National Assembly as the first House considering the Bill.

Where is Parliament lacking?

While there has been some improvement in Parliament’s responsibility and commitment to engaging with the public during the development of legislation, there are still worrying practices that permeate public participation processes. Various common themes arose from the parliamentary processing of the traditional leadership Bills, both at national and provincial levels. This includes flawed public participation, limited public engagement, few opportunities for public participation and the laborious nature of obtaining information from provincial legislatures.

The Portfolio Committee and Select Committee on Cooperative Governance and Traditional Affairs were responsible for processing the TLGFAB and TKLB – sometimes simultaneously, despite the fact that the TKLB will replace the TLGFAB. The Portfolio Committee conducted one hearing on the TLGFAB at Parliament during June 2017, with the Land and Accountability Research Centre being the only stakeholder to make an oral submission. Likewise, the Portfolio Committee on Justice and Correctional Services conducted participation hearings, mostly with invited stakeholders, on the TCB during March 2018 at Parliament only. This limited public engagement meant that not all relevant stakeholders, particularly rural communities who will be impacted the most by these Bills, could participate and have their voices heard.

Photo: Monique Doyle

While the COGTA Portfolio Committee made a commendable effort to travel to all nine provinces to conduct public hearings on the TKLB, procedural issues arose in the manner in which hearings were carried out. Problems included late notification about the publication of the hearings schedule, copies of the Bill were not made available to the public, and when those were made available at some of the hearings, it was on the day of the hearing and were available in English only. This meant that most of the public was not aware of or familiar with the content of the voluminous Bill. As a result of this, at many hearings the public requested the Committee to go back to Parliament, restart the process and return after communities had an opportunity to read and understand the Bill. In Limpopo, a last minute venue change resulted in members of the public arriving late to a hearing and not getting an opportunity to comment. At some hearings, it appeared that the Committee targeted traditional leaders exclusively as most of the people in attendance were traditional leaders and members of traditional councils. At the first hearing in Kimberley in November 2016, the Committee did not arrive and the hearing was postponed.

The COGTA Select Committee did not conduct any public hearings on the TKLB - hearings were held by the provincial legislatures only. The Select Committee invited the public to make written submissions after the provincial legislatures had completed their public participation processes and after the Committee had considered negotiating mandates. However, provincial hearings were also flawed, as with the Portfolio Committee process. In KwaZulu-Natal, the provincial legislature incorrectly insisted that the TKLB concerned only Khoi-San communities and mainly targeted them only. As a result hearing venues were far from other traditional communities who are also directly affected by the Bill. At a hearing in Kokstad, community members from a traditional community were told they could not comment unless they were Khoi-San. In Mpumalanga, the TKLB was mentioned incidentally at a public hearing on the Restitution of Land Rights Amendment Bill, without any public input. In Limpopo, a hearing was postponed twice and was eventually cancelled with no opportunity for public comment. In the Eastern Cape, hearings were not publicised.

It also proved challenging to find and receive information about the processing of Bills from the provincial legislatures. Gruelling efforts to maintain contact with some provincial legislatures proved futile, while others provided ongoing positive responses to requests for information. It is unclear whether details of public hearings were made publicly available in the Northern Cape. In the Western Cape, a hearing in Beaufort West was poorly attended, with attendees expressing their concerns about the hearing not being adequately advertised. It is evident that even after the 2016 Constitutional Court’s judgment in Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others (“LAMOSA”) - which sets out standards for proper public participation, including advertising hearings widely and well in advance to afford the public an opportunity to participate effectively in public engagement processes - provincial legislatures are still failing at this constitutional duty. The LAMOSA judgment was an outcome of civil society taking government to the Constitutional Court due to flawed public participation on the Restitution Amendment Bill. Provincial legislatures seemed to be repeating the same problems with public engagement on the processing of the Bills on traditional leadership. It is thus necessary for provincial legislatures to develop their methods of working with the public in order to become more accessible and useful to their constituencies.

Unequal treatment of the public in public engagement: Prioritising traditional leaders over communities

While public engagement is meant to afford all members of the public an opportunity to participate effectively in the processing of legislation, there was unequal treatment of the public by government officials in the processing of the package of legislation on traditional leadership. Often government targeted and prioritised the views and inputs of traditional leaders over ordinary community members. At most hearings on the TKLB and the TLGFAB, traditional leaders were sat either in the front section of the audiences or with the members of the legislature committee concerned. In addition, traditional leaders were given special mentions and at some hearings one of the traditional leaders was given an opportunity to welcome the committee on behalf of all the traditional leaders. Furthermore, at the end of many of the hearings on the TKLB, traditional leaders were taken to a separate room to have lunch with members of the committee while ordinary community members were left in the main venue. In the Eastern Cape the COGTA committee conducted a separate hearing with traditional leaders and another one with community members. At some hearings, it appeared that the COGTA committee specifically targeted traditional leaders only to the exclusion of ordinary community members. In the Eastern Cape and North West, for example, it was revealed that copies of the TKLB were distributed to traditional councils only, while ordinary members of the public only received copies at the hearing. At Peter Mokaba stadium in Polokwane a community member making a submission on TKLB, rejected the hearing based on the fact that over 90% of the “public” in attendance were traditional leaders and members of traditional councils. The community member said the hearing should be called a meeting of traditional leaders and the committee should come back again to conduct a proper public hearing with community members. This was after the venue of the hearing had been changed the night before and only traditional leaders were made aware of this, and as a result managed to get to the hearing on time and in great numbers. The KZN hearings were also dominated by traditional leaders.

Kimberley public hearing on TKLB | Photo: Sobantu Mzwakali, GroundUp

In the Eastern Cape all the hearings on the TLGFAB and some of the hearings on the TKLB by the provincial legislature were convened at Great Places and the majority of the public in attendance were traditional leaders. The provincial legislature encouraged traditional leaders to go back and talk to “their people” about the TLGFAB, rather than engaging directly with those people. At a hearing that was held at Mngqesha Great Place in the former Ciskei, when the provincial legislature was questioned about abdicating to traditional leaders its constitutional duty of conducting public participation, the provincial legislature response was that because traditional leaders are office bearers they have a constitutional duty to conduct public participation. However, according to the Constitution only the National Assembly, National Council of Provinces and Provincial Legislatures have the duty to conduct public participation, not traditional leaders.

The Portfolio on Committee on Justice and Correctional Services (Justice Committee) also prioritised traditional leaders over ordinary community members while conducting public participation on the Traditional Courts Bill in 2018 and 2019. At the initial stakeholder engagement in Parliament in 2018 the committee allowed members of the National House of Traditional Leaders (NHTL) in attendance to interrogate oral submissions by stakeholders from civil society. In February 2019 the committee finalised, adopted and referred the Bill to the National Assembly after conducting further consultation with the NHTL, Contralesa and Provincial Houses of Traditional Leaders, while ordinary community members were afforded no opportunity to comment on the Committee’s proposed changes to the Bill.

The fifth Parliament’s exercise of public engagement on legislation regarding traditional leadership has thus excluded ordinary community members and tilted power towards traditional leaders to dominate with inputs that eventually shape the final content of legislation.

Concerns over intimidation

Public engagement processes by the various committees of Parliament were also sometimes characterised by intimidation on the part of the government and parliamentary officials conducting the hearings and their support staff. Civil society organisations attending the hearings were accused of “following” the hearings and influencing members of the public who were attending the hearings. In some locations, intimidation took the form of close range photographers of community members, activists and researchers attending the public hearings by the official parliamentary photographers, as well as threatening remarks by parliamentary support staff.

At the stakeholder engagement on the TCB in March 2018, civil society organisations making submissions experienced dismissive and discriminatory remarks on the basis of their race, gender, age and nationality by the Justice Committee. A representative from the Centre for Child Law was told to ask older women how to raise children before presenting research or comments about children’s rights to the Committee. She was also interrogated about her nationality and ability to speak South African languages. Representatives from COSATU and the Children’s Institute were similarly dismissed from commenting about traditional courts on the basis of their race. This had the effect of closing down spaces for effective public engagement on the Bills.

What is Parliament doing right with public engagement?

While there are still strides to be made in relation to public engagement, Parliament has shown improvement in some areas during its fifth term. There seems to have been some shifts in perception about public participation, with Members of Parliament (MPs) increasingly aware of the dangers of failing to properly engage with citizens on legislation being dealt with. This manifested through repeated references in meetings and public hearings to Parliament’s constitutional duty to facilitate public participation, and the concomitant threat of litigation for failure to do so. Although these references were at times used instrumentally for party political purposes, and rarely actually translated into effective opportunities for open engagement, MPs were unable to escape from acknowledging that public engagement is a necessary component of their mandate. In some instances, MPs and committee staff made visible adjustments to their conduct once they were aware that their public participation processes were being monitored. MPs have thus been forced to at least appear to treat public participation seriously, rather than consider it an optional and experimental foray into public perceptions.

Based on this increased awareness of being seen to be interested in public views, Parliament has in relation to the TKLB attempted to create some opportunities for participation - the Portfolio Committee on Cooperative Governance and Traditional Affairs, for example, had hearings across all nine provinces. Whether those opportunities then actually facilitated an effective exchange of ideas and information between Parliament and members of the public is less certain, based on the numerous problems described above.

Generally-speaking, free physical access has been permitted to the parliamentary precinct, meetings and public hearings around the three traditional leadership bills. Access was only an issue when there was no public information available about specific meetings, or they did not appear on the schedule. This meant that even National Parliament’s Visitors’ Centre could not approve access to the relevant parliamentary venue. Committee secretaries have mostly been approachable and open to being contacted by members of the public - although their willingness and dedication to sharing information was hit and miss depending on the specific legislature and committee concerned.

Parliament has been particularly effective in its use of online and social media platforms to distribute information about legislative activities. Thus, members of the public with access to computers, smart phones, internet and mobile data are able to find schedules, press releases, and information about MPs with fair accuracy on Parliament’s website. Parliament’s twitter feed usually includes alerts about similar information and occasionally reports live from plenary debates. Parliament also regularly streams live video feeds of plenary sessions in the National Assembly and National Council of Provinces via its YouTube channel. Although Parliament is sometimes slow to update its content and technical glitches occur, these are important sources of current information for people who are unable to physically attend Parliament. This is particularly true for those citizens who are based in rural communities and, while they are interested in Parliament’s activities around the traditional leadership bills and land reform, are situated far from Cape Town and other city centres.

Nonetheless, there is massive room for improvement, with Parliament’s technology and social media presence being a key growth area. Provincial legislatures are less consistent with providing information about their activities online - it is often incredibly difficult to find information about legislature contacts, committee members, schedules or public hearing opportunities. With sufficient will and resources, provincial legislatures could model national Parliament’s existing initiatives and expand on them. Video and audio recordings of public hearings that are held outside of the legislative precinct are also not made available or streamed to the public - even at national Parliament level, and even though there are usually parliamentary film and sound crews present. Increasing the accessibility of these recordings by, for example, streaming them on YouTube or online radio or podcast platforms, presents an expedient opportunity for transparent law-making on the part of the legislatures and improving perceptions about MPs and their day-to-day functions. This live streaming was done, for example, when the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe, held public hearings across the nine provinces in 2016 and 2017.

Although the costs associated with internet access do exclude many sectors of South African society, online resources and communication by Parliament is increasingly becoming a key means of accessing information and maintaining a public record of public participation and other activities by Parliament. For those who cannot access legislatures online or in their physical locations, public hearing processes are still the most important way to connect and share ideas with lawmakers. Thus, the depth and effectiveness of the public participation process itself remains a major area of concern.

Thiyane Duda and Ayesha Motala are research officers at the Land and Accountability Research Centre at the University of Cape Town. Monica de Souza Louw is deputy director and heads LARC’s programme on traditional governance.