Have we been underemphasising public participation?

July 1st, 2017
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By Martin van Staden

Public participation in the affairs of government is democracy in action. Government receives a general mandate once every five years, however, public participation serves to legitimise particular policies. When the ANC was elected to government, the people of South Africa (SA) did not by proxy ‘endorse’ each new policy, such as the Department of Trade and Industry’s (DTI) ill-conceived liquor policy, that will effectively ban the sale of alcohol across the country. Democracy penetrates deeper than a formal election twice every decade.

It is often wrongly assumed that public participation is limited to law, and, indeed, the Constitution is clear that Parliament and the provincial legislatures must facilitate public participation when considering new law. However, s 195(1)(e) of the Constitution mandates that the public must be encouraged to participate in the policy-making process as well. This means that even before something has become law and is merely the policy of government, the public must have their say.

In 2010, the Public Service Commission released a report titled ‘Template for Developing Guidelines on Public Participation’ wherein the commission acknowledged that the ‘nature and extent’ of public participation has up to then been inadequate, and that guidelines on how public participation should be achieved and how it will eventually inform the resulting policy, should be developed. In light of this awareness by government, it is apt to discuss the two most underemphasised aspects of public participation, namely, impact assessments and engagement in good faith.

The Socio-Economic Impact Assessment (SEIA) System

Section 195(1)(g) of the Constitution requires a transparent policy-making process whereby the public is provided with timely and accurate information. The general requirement of rationality, furthermore, requires that policies must be based on evidence and not the mere whim of officials or politicians.

Government has, to an extent, realised that impact assessments are part of the broader public participation constitutional framework. In 2015, Cabinet approved the Department of Planning, Monitoring and Evaluation’s Socio-Economic Impact Assessment System, which stipulates that a SEIA must be done before a policy is enacted.

Unfortunately, judging by the SEIA conducted by the National Treasury on its proposed Financial Sector Regulation Bill B34B of 2015, as well as the SEIA conducted by the Department of Telecommunications and Postal Services (DTPS) on the National Integrated Information and Communication Technologies (ICT) Policy White Paper, some basic principles and requirements are not being met.

Most regrettably, the departments introducing the policies are doing their own SEIAs, which is inappropriate given the obvious conflict of interest and inevitable confirmation bias. This was clear in both the aforementioned SEIAs, where the faux impact assessments went to great length to try and justify the policy intervention and, while listing in minute detail all the supposed (but baseless) benefits, paid only superficial concern to the detriments.

With the ICT White Paper, furthermore, the DTPS did not release their inadequate SEIA, while there was still opportunity for public engagement.

The department claims the SEIA was conducted in February 2016, and Minister Siyabonga Cwele had already declared the policy ‘final’ in December 2016. However, the SEIA was published only in January 2017. How can the policy logically be ‘final’ if the public had not yet seen the SEIA and had not yet engaged government on the results? The requirement of ‘timeliness’ in s 195(1)(g) of the Constitution mandates that relevant information be revealed before a policy is set in stone. In October 2016, the official opposition lodged a Promotion of Access to Information Act 2 of 2000 request to access the SEIA, but received no response from the DTPS. After 30 days, the application was automatically rejected. The Shadow Minister of Telecommunications and Postal Services of the Democratic Alliance, Marian Shinn, subsequently voiced her concern whether a SEIA had been conducted at all.

Such behaviour by government is a clear indication that engagement was not done in good faith.

A proper SEIA should be conducted by a disinterested party – preferably a party outside government or, at least, an autonomous government unit in the presidency, or a parliamentary select committee – rather than by the agency introducing the policy. The SEIA must honestly and accurately record all the risks and benefits it is able to identify. Crucially, the SEIA must not be a memorandum in support of the policy. In other words, it should not ‘agree’ with the stated goals of the policy; it must be neutral.

Public engagement in good faith

After an adequate SEIA has been conducted and published for public comment, the public must be engaged, in good faith, on the content of the proposed policy and whether it should be policy at all.

In eTV (Pty) Ltd and Others v Minister of Communications and Others 2016 (6) SA 356 (SCA), the Supreme Court of Appeal held that when legislation is silent on public participation, the principle of legality (an element of the rule of law imperative in s 1(c) of the Constitution) requires such participation, at least with statutory bodies and industry stakeholders (at para 45). The court held that public participation was also required with determinations on policy and policy amendments (as opposed to laws or regulations).

Government is also required to approach public engagement with an open mind.

In the article ‘Public Participation in South Africa’s Policy Decision-Making Process: The Mass and the Elite choices’ (2016) 14 International Public Administration Review 55, Professor Mokoko Piet Sebola Jr. of the University of Limpopo wrote that public participation does not simply entail passive involvement of stakeholders. Where the engagement does not influence the final decision in some way, it cannot be said that public participation has taken place. Public engagement must be undertaken in good faith.

Good faith is absent if government allows for participation on a policy, law or regulation which is a fait accompli. If government is set on a particular course, it follows that public participation would be without purpose. In Commissioner for Inland Revenue v Golden Dumps (Pty) Ltd 1993 (4) SA 110 (A) the Appellate Division regarded it as a ‘well-approved canon of construction’ to not regard words in statutory texts as redundant. It must be assumed, then, that the Constitution intends more than a mere, useless formality in its repeated provisions for public participation. In other words, public participation must have some perceptible influence on whatever policy decision has been taken.

Relevance to the attorneys’ profession

If legislation, regulation, or policy decisions are not subject to the necessary public participation, or if the public participation is little more than a sham, the legislation, regulation, or policy decision would – in theory – be of no force or effect. The potentially disastrous consequences of a policy without adequate public participation is illustrated by the DTI’s new liquor policy.

The liquor policy provides, inter alia, that liquor establishments must be located at least half a kilometre away from places such as residential areas, public institutions, schools, transport facilities, and recreational facilities. In practice, this means that alcohol would not be sold or served in any urban area anywhere in SA. Furthermore, assuming a road is a transport facility – these terms remain undefined – liquor would also not be sold within 500 metres of a road.

The liquor industry, directly and indirectly, provides employment to vast numbers of South Africans. Alcohol is sold and indirectly relevant in most service-based sectors, including tourism, catering, and cleaning. Shebeens, taverns, restaurants, and liquor stores around the country will be forced out of business as a result of this policy. It will be in the national interest to challenge the ill-considered policy on the basis that the SEIA was defective for the reasons mentioned in this article.

The deficient liquor policy is a single example of improper public participation and incomplete or unreleased SEIAs. It is injustice – technical as it may be – of unimagined proportions.

Conclusion

By challenging law or policy on public participation grounds, lawyers not only assist clients to see justice done, but also contribute to a sorely needed and underemphasised aspect of public law and jurisprudence. Public participation, especially on government policy, as opposed to legislation or regulation, that is too often disregarded, can have a significant influence on governance in SA.

Martin van Staden LLB (UP) is a legal researcher at the Free Market Foundation in Johannesburg.

 This article was first published in De Rebus in 2017 (July) DR 51.

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