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Constitutional Committee fails public participation test on EWC – IRR

CAPE TOWN — Our courts are hyper-aware of the separation of powers when it comes to pronouncing on legislative decisions. So, when the Cape High Court last week rejected AfriForum’s urgent interdict to prevent the parliamentary adoption of the Joint Constitutional Review Committee’s report on Expropriation without Compensation, nobody was too surprised. However, all the High Court ruled on was the urgency of the application. It may yet pronounce, after separate actions, on the substantive points around the fiercely disputed public participation and actual public contribution to the committee’s EWC recommendations. Here IRR project manager, Terence Corrigan, accuses the committee of ‘tokenism’ in not seriously engaging with the scale and substantive content of 400,000 written submissions. The committee, on its own admission, ‘’sampled” 0.1% of these submissions (about 400) to “get an idea” of what South Africans are saying. That’s riding roughshod over an inviolable Constitutional right of meaningful public participation, he adds, predicting a rough ride for EWC next year. An ANC-heavy committee merely rubber stamping what was adopted by the ruling party’s national conference last year by going through the motions is hardly constitutional democracy, he says. The ANC hoped for a sprint. Expect a marathon. – Chris Bateman

By Terence Corrigan*

Politics is 2018 was marked above all by the raucous and discordant national debate around Expropriation without Compensation (EWC). And so it is coming to an end: the Joint Constitutional Review Committee recommended changing the constitution, the first such intrusion into the Bill of Rights since the document was adopted. An attempt by lobby group AfriForum to interdict Parliament from adopting the committee’s was rejected by the Cape High Court. Parliament has now gone ahead and adopted it.

Terence Corrigan
Terence Corrigan, IRR

These events are important milestones, demonstrating the momentum behind this policy drive. But they also call attention to the obstacles that it will face as we move into the new year.

At issue specifically was AfriForum’s contention that urgent action was necessary to prevent Parliament from adopting the report of the Joint Constitutional Review Committee recommending a change to South Africa’s founding document. In substantive terms, it took issue with the process adopted, specifically pointing to deficiencies in the public participation process.

It is important to note that the court has merely refused an urgent interdict. This was always a long shot. It has not pronounced on the substantive points that AfriForum raised.

Public participation is mandated by South Africa’s constitution, not as a concession, but as a right, and as an intrinsic part of the country’s policy design framework – it is both a normative and a pragmatic requirement. An official guide puts it in these terms: ‘Public participation is the process by which Parliament and provincial legislatures consult with the people and interested or affected individuals, organisations and government entities before making a decision. Public participation is a two-way communication and collaborative problem-solving mechanism with the goal of achieving representative and more acceptable decisions.’

A key measure of public participation in the South African conception is whether it is ‘meaningful’. As a judgment handed down by the Constitutional Court in 2006 – Doctors for Life International v The Speaker of the National Assembly and Others – put it: ‘Interested parties are entitled to a reasonable opportunity to participate in a manner which may influence legislative decisions.’

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Put differently, legislative processes must provide the substance and not just the form of citizen input. Citizens have not only the right to express themselves, but to be listened to, and to have their views properly considered.

In academic literature, participation is frequently conceptualised in terms of the Arnstein Ladder of Participation. Named for its designer – academic and activist Shelley Arnstein – it sees participation proceeding up eight ‘rungs of a ladder’. Participation moves from the lower rungs (‘therapy’ and ‘manipulation’, which together were described as essentially non-participation), through a set of intermediate rungs (‘informing’, ‘consultation’ and ‘placation’, these being viewed as tokenism), to the upper ones (‘partnership’, ‘delegated power’ and ‘citizen control’, each of these expressing some form of citizen power).

Achieving a satisfactory level of public participation has long been a problem in South Africa – often tending more to ‘tokenism’ than to real ‘citizen power’. And so it was with the process that produced the EWC report.

It is no exaggeration to say that few matters dealt with by Parliament since the adoption of the constitution have attracted this level of engagement. Between 720,000 and 780,000 written submissions were received, following an invitation by the committee. Then committee co-chair Vincent Smith remarked on this positively in June: ‘In terms of public participation, it is incontestable, it is unprecedented.’ He went on to say that ‘it is a sensitive matter, it must be dealt with accordingly.’

Whatever that may have meant, it evidently did not mean that they would be read and studied. The number of submissions received was, in subsequent communications, dramatically lowered, and those recognised as valid were numbered at some 400,000. It is unclear exactly what criteria were used to do this – something that requires explanation to the 300,000 plus people whose submissions and, therefore, their right to participation may have been discounted.

Nevertheless, 400,000 submissions would still represent a very healthy public engagement. But from the committee’s perspective, it seemed now to represent a logistical inconvenience. To deal with this, most would not be read. Said Mr Smith: ‘We should not leave here thinking that we did not apply our minds…we had more than 400,000 written submissions and we will not be able to process all submissions …We took a decision to do a sample and we did a sample [of about 400] and I am happy that from the sample we have an idea of what South Africans are saying.’

But having declined to review 99.9% of the submissions received, that is a difficult statement to justify. Whether or not it has ‘an idea’, it consigns hundreds of thousands of South Africans to non-participation in this process.

Besides, in ignoring the input of individuals and institutions, it not only undermined the rights of citizens, but also its own capacity to make informed policy decisions. Making it possible to be exposed to arguments and to weigh evidence in the interests of good policy is part of the value proposition of public participation. It is also – perhaps this needs emphasising – a large element of the work that Parliamentarians are mandated to do.

And so when it was argued – as Tebogo Mokwele of the Economic Freedom Fighters did – that the process was not a referendum but rather an attempt to canvass argument, this is correct. And it is of great concern that a decision was made to avoid doing so.

Some attempt has been made to argue that what really mattered was the mass public hearings. Leaving aside that these afforded participants no more than a few minutes each to express themselves on complex issues – hardly conducive to engagement, a problem noted globally with this form of participation – hard questions could be asked about the manner in which they were conducted. In this writer’s observation, the committee chair allowed himself considerable latitude to select speakers – ‘you there in the back… you in the red shirt… no, not you… I want to hear from more women…’ It was also notable that no translation facilities seemed available, although participants addressed the committee in a variety of languages. None of this seemed geared to airing and receiving nuanced arguments.

But perhaps this was never going to be of much concern. EWC as a policy has been presented by government and the ruling African National Congress (ANC) as a done deal since it was adopted at the latter’s national conference last year. Changing the constitution has become a visible symbol of sorts for this – one might be forgiven for thinking that the outcome was always predetermined. Indeed, it would be hard to argue that a constitutional change was not a foregone conclusion (or had become one) after President Cyril Ramphosa’s late-night address on 31 July. Although the public participation process was ongoing, with hearings still underway, he declared that ‘it has become patently clear that our people want the Constitution to be more explicit about expropriation of land without compensation, as demonstrated in the public hearings’. 

Taken together, all of this suggests a process that can most generously be described as tokenistic, and falling well short of the meaningful participation to which South African legislation must adhere. And the citizen power that it is meant to confer. Ironically, a media statement from Parliament attacked AfriForum’s application as being ‘intended to gag both Parliament and thousands of South Africans who expressed their views through the public participation process’. Yet gagging seems a more apt description of the committee’s conduct.

The court action is not concluded – and AfriForum’s challenge will not be the only one.  The issues are profoundly important, and extend beyond the dangers posed by EWC. They reach into the conduct of South Africa’s democracy and its potential for abuse by those in power. The events of the last year set the scene for what is to come; the last few weeks erected a number of important markers on the road. But a long, difficult path lies ahead in 2019

  • Terence Corrigan is a project manager at the Institute of Race Relations. The IRR will be challenging in court the process that produced the report recommending a constitutional amendment. Readers are invited to join the IRR  sending an SMS to 32823 (SMSes cost R1, Ts and Cs apply).
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