As the proposed constitutional amendments to allow land expropriation without compensation faces its first court challenge, Parliament now has another opportunity to deal with its legislative mandate’s great Achilles’ heel – meaningful public participation.
On November 15, after nationwide public hearings spanning two months, the joint constitutional review committee in Parliament adopted its report in favour of amending section 25 of the Constitution.
However, lobby group AfriForum launched a court application to have this report set aside, citing serious concerns over the public participation process.
Certain opposition parties also hinted at possible court challenges based on the process followed.
Parliament has since indicated it would oppose AfriForum’s application.
The national legislature has also chosen to pride itself on what it labels a process that will be remembered as one of the “most consultative, participatory processes of our democracy – outside of our regular non-racial elections”.
Concerns over the quality of public participation in law-making are not limited to the controversial section 25 issue alone, neither is it a simple dichotomy between those for and against land expropriation without compensation.
The concerns raised in this court challenge and by others present Parliament with yet another opportunity to review and improve its public participation model.
Public Participation “ritualistic, diluted”
Projects manager at the Parliamentary Monitoring Group, Rashaad Alli, told ParlyBeat that Parliament’s public participation process in general was often “ritualistic, diluted and falling short of its intended purpose”.
The group had monitored, captured and researched proceedings in Parliament since 1995.
According to Alli their research found most participants complain that meaningful public participation was often lacking.
“[We also found] MPs are not always open-minded and can be hostile to views they disagree with.” Referring to the public hearings on expropriation without compensation, he said they found Parliament in this case was overwhelmed and unprepared at the volume of submissions received for the land expropriation hearings.
“It did not have the capacity to process the submissions and had to outsource this function,” Alli said.
In its public participation survey of last year, the monitoring group asked survey participants whether they were satisfied that their submissions were “adequately taken into account or considered”.
According to the findings, 30% of the respondents were dissatisfied and 37% felt that Parliament “did not take their public input seriously”.
Almost 80% of the respondents also felt the committee’s feedback after their submissions during the public hearings was inadequate. Some of the challenges identified in the survey related to a lack of time and capacity.
Some respondents also noted they felt “dejected” when they were stopped halfway through their presentations “because time had run out”.
Other observations included respondents feeling that committee members “do not seem to listen during hearings, ‘belittle’ points of view that are generally not agreed with and that some chairpersons were too ‘heavy handed’ and thus intimidating for participants”.
Much of the same…
Fast-forward to October and November this year, and the observations remained the same when Parliament had its final rounds of submissions on the proposed section 25 Constitutional amendment.
Selected organisations and individuals were given 10 minutes each to deliver their submission and MPs had a chance to ask questions for clarification.
These questions often derailed into racial insults, nit-picking of issues and views not consistent with some MPs’ perspectives.
For example, MPs who disagreed with the public input went as far as to claim the presenter of the Land Access Movement of South Africa’s (Lamosa’s) submission was “in white pockets” and their views were “[in]consistent with people who are landless”.
The organisation Women on Farms Project was scheduled to make their submission on the same day.
According to the organisation’s deputy director, Carmen Louw, they were given a set time to appear before the committee but had to rush with a whole contingent of female farmworkers when the committee changed the time slot at the last minute.
“These oral submissions are important to us as we believe the female farmworker community brings a unique perspective to the debate on land,” Louw said. “We are grateful for any opportunity to give input and go through great lengths to get our people there with us.”
On this day about 10 female farmworkers, many of them taking time off from work on farms in the Winelands, accompanied the presenters.
“So, it is a big thing for the women to go to Parliament and be heard.”
The Women on Farms Project submission was also afforded only 10 minutes and after some pleas only one of the farmworkers could read her letter in Afrikaans to MPs.
No MP asked for a translation or engaged with it, and Louw said this added to perceptions that these hearings were often just a box-ticking exercise.
Co-chair of the committee, Stan Maila, told ParlyBeat the committee was “satisfied” with how the public participation process unfolded. According to him the participation process was even extended to allow for more submissions.
“We cannot pass laws without the people. We have never in democratic South Africa, seen a public participation process conducted with such rigour,” he said.
“And time was of the essence. We had to manage and select among those who had serious and quality contributions to make.”
Maila also said it was the leaders of organisations’ responsibility to explain the processes to their members.
A report published last year – the high-level panel report on the assessment of key legislation and the acceleration of fundamental change – recommended that the legislative process be “overhauled” especially given a series of judgments from the Constitutional Court about the need for effective public participation in the legislative process.
The panel too, raised serious concerns over insufficient and lack of inclusive public hearings.