Short comment periods on new laws are unreasonable and unconstitutional

The South African government seems to be making it a habit to publish new laws, regulations, and policies close to or over a holiday period. Moreover, the amount of time it is giving the public to comment on new laws seems to be getting shorter and shorter. The more radical the bill, it seems, the shorter the time allowed for comment. This unreasonable conduct has no place in a modern constitutional democracy founded on the notion of representative and participatory democracy.

On 17 November 2017, the Department of Labour proposed three new, earthshattering laws for comment: The Labour Relations Amendment Bill, the Basic Conditions of Employment Amendment Bill, and the controversial National Minimum Wage Bill. The latter bill, the product of years of intense dialogue between a multiplicity of stakeholders, and the debate far from ended, has been given only 13 days for comment – the deadline is 30 November!

The Latin maxim “Nihil de nobis, sine nobis” translates into “Nothing about us, without us”. This was the philosophy underlying both the American Revolutionary War against Britain and the struggle against Apartheid in South Africa. In both cases, the majority of the population were having decisions made on their behalf without them being allowed any real participation or their consent required. Wars have been rightly fought over this basic principle.

All the aforementioned labour bills have far-reaching consequences that touch every industry and sector – businesses, street-traders, and NGOs alike. No South African or foreign investor will be left unscathed by these interventions. This is why a reasonable period for good faith engagement must be allowed.

Government’s legislative timing, though, is not a new trend.

In 2016, the Department of Justice published the Prevention and Combating of Hate Crimes and Hate Speech Bill in late October, seeking comment by 31 January 2017. That bill has been vigorously interrogated, with most concluding that it is a patently unconstitutional, anti-free speech intervention that would have made the airing of ordinary opinions potentially punishable by 3 to 10 years in prison. For this bill, government allowed only three months for comment, a significant period of that time falling within the holiday season.

Public participation in policy- and law-making is mandated by the Constitution.

Section 195(1)(e) requires that “the public must be encouraged to participate in policy-making”, and subsection (1)(g) requires that “transparency must be fostered by providing the public with timely, accessible and accurate information”. This latter provision applies to laws, regulations, as well as policy. Section 59(1)(a) and section 72(1)(a), respectively, require that Parliament must facilitate public involvement in the legislative process.

The recently-published Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change problematised public participation in South Africa, stating that, “[T]here is a need to rethink the role of active citizens as co-drivers of change. The existing framework for public participation often only enables the public to participate as invited guests in processes as opposed to partners and co-creators”. Even the Public Service Commission, in 2010, reported that “the nature and extent of public participation is generally inadequate”, recommending that every government department introduce guidelines that staff should follow to foster public participation.

In 2016, Professor Mokoko Sebola of the University of Limpopo wrote that “mere passive involvement of the people” does not amount to substantive public participation. Thus, if government does not consider with an open mind the comments of the public, “no public participation can be claimed to have taken place”. Public participation, in other words, must be in good faith and not merely a mechanical check-marked procedure.

With South Africans allowed only 13 days to comment on legislative proposals that promise grave consequences for the economy, it is clear government considers citizens as “guests” in the process, rather than “partners and co-creators”. This undermines the democratic legitimacy not only of these specific bills, but of the whole law-making process. South Africans should pre-empt this eventuality and demand that government adhere to its constitutional obligation to seek the consent of the governed.

Martin van Staden is Legal Researcher at the Free Market Foundation

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