A stable climate is the bedrock upon which every right in the South African Constitution is built: the right to life, health, housing, education, food and good nutrition, a healthy environment, and more. Realising those rights through active citizenry, to create a democracy that is by the people and for the people, calls for more than just casting a vote every five years.
This is Part 4 of a four-part series exploring the importance of citizens’ engagement with government through the provincial or national legislatures, using the public participation processes provided for in South Africa’s Constitution. For a practical guide on how to go about this kind of active citizen engagement, download the Action 24 Toolkit for Citizens’ Engagement with Legislatures.
Active Citizenry: Lessons from the frontline
By Leonie Joubert
A healthy democracy calls on all citizens to be involved in the day-to-day processes of governing the country: law making, implementing those laws, and accountability for those who breach those laws and policies. Written into the South African Constitution are the practical steps that allow citizens to be involved directly with government, in order to keep democracy working, and to ensure a healthy environment. Public participation processes through the provincial and national legislatures is central to that. In reality, though, this may be easier said than done. A few stories from activist groups in South Africa show some of the hurdles to active participation.
Challenging traditional leaders’ authority over rural land
The link between how the country tackles climate collapse, and the power that the state gives to traditional leaders in parts of the country that once fell into apartheid-era Bantustans, may not be immediately obvious. But according to land rights activist Molatelo Mohale from the Nkuzi Development Association (NDA), government’s lawmaking process is giving traditional leaders greater say over whether or not energy-intensive and carbon-pollution activities such as mining can go ahead on communal lands. These laws are stripping power away from the people living on communal land, and denying them the chance to decide how the land is used, excluding women in particular, and potentially opening communities up to violence.
The power that these laws give traditional leaders has resulted in these authorities ‘abusing’ their authority, argues Mohale, resulting in ‘patriarchal, undemocratic and unconstitutional practice’.
Mohale and the Polokwane-based NDA have been taking on the issue, using public participation with the Limpopo Provincial Legislature, in the hope that they will have a greater say in how laws pertaining to traditional leadership authority are written.
In October 2019, NDA representatives attended a meeting organised by the Limpopo Portfolio Committee on Agriculture and Land and Co-operative Governance, Human Settlement and Traditional Affairs, arranged as a public participation process to discuss the Limpopo Spatial
Planning, Land Use and Management Bill.
But the meeting wasn’t well attended by important stakeholder groups. Many of the rural people who should have been at the meeting weren’t able to get there because the venue, which was at a private lodge in Polokwane, was too from their rural homes.
The timing wasn’t good, either: the meeting took place mid-week, during work hours.
‘Traditional communities are living in impoverished situations,’ says Mohale. ‘Mid-week, they’re trying to make ends meet, and do odd jobs.’
If the legislature wanted to get these communities’ input, a public participation hearing should be held at a venue where they can travel to easily, and over a weekend or after hours.
There were very few representatives from the Communal Property Associations and people living and working far from the city, as a result. This left the room largely filled with representatives from the House of Traditional Leaders and the Congress of Traditional Leaders of South Africa (Contralesa).
The handling of the hearing also confirmed for Mohale how government is deferring to traditional leaders’ authority, at the expense of those impacted by the decisions of those authorities. When the traditional leaders’ representatives brought a complaint about how consultative the process relating to the bill was, the portfolio committee allowed these leaders to stop the proceedings in order to hold a closed caucus. Other stakeholders had to leave the room and later merely accept whatever decision had been made in the caucus without their input.
This one event demonstrates how public participation processes may be good in theory, but how, in practice, they can actually exclude people.
NDA responded by submitting a formal complaint to the relevant Limpopo portfolio committee, and Mohale published an article in the Daily Maverick to draw wider public attention to the issue.
This event is just one case that demonstrates the experience of many civil society organisations who were part of the Action 24 project, an initiative running from January 2018 to December 2020 to support civil participation in environmental governance, specifically with the aim of addressing carbon pollution and advancing inclusive development in South Africa. The initiative is led by Food and Trees for Africa, the African Climate Reality Project, the South African Institute of International Affairs, and the South Durban Community Environmental Alliance.
In their feedback following the conclusion of the Action 24 project, participating organisations all gave examples of how important it is to have skilled experts within activist organisations who can help educate and inform vulnerable and less well-resourced communities to access public participation processes.
For organisations such as NDA, this goes beyond simply letting communities know when hearings are taking place, or helping them to get to venues. It also means equipping them with the language and technical support necessary so that people can understand the contents of the laws or other issues being addressed at the hearings, what the implications of those laws are for them, and formally submitting communities’ concerns and needs at these hearings.
Reaching out to the legislature
The drive from Makhaza, a neighbourhood in Khayelitsha, to the centre of Cape Town usually only takes 20 minutes if the traffic is clear. But for people who don’t have much spare cash to spend on non-essential travel, it still may be a bridge too far.
If their reason for making the journey is to visit Parliament and better understand how public participation through the legislatures work, they might also not have the know-how or means to arrange the visit. These are real hurdles to communities being active as citizens in how the country and their neighbourhood are governed.
Makhaza residents are amongst the communities that have been working with civil society organisation Environmental Monitoring Group (EMG) through the Western Cape Water Caucus, whose work aims at being actively involved with government, particularly around the issue of water and sanitation service delivery in their community.
‘Parliament is not as accessible to communities as government may think,’ explains EMG’s Siyabonga Myeza, who helped organise an educational tour of parliament for community members in 2019. ‘It is an intimidating space.’
When Myeza contacted the legislature directly to ask about if communities could visit the Parliamentary buildings, he says they didn’t know that educational tours were an option.
‘We explained in our letter that we wanted to understand how public participation processes work, but also that we wanted to see the structure of the buildings and the people who work there,’ says Myeza. ‘We found out that the legislature has an entire programme set up for precisely this kind of thing.’
The two-hour tour was an eye-opener for the six Water Caucus members, he says. For many of them it was their first visit to the provincial parliament.
Demanding accountability in a mining environmental impact assessment
In March 2020, just as the country was about to go into strict lockdown to contain the spread of the coronavirus, a Gauteng mining firm submitted a draft environmental impact assessment (EIA) for a planned extension of its existing operation. If it gets the go-ahead, Ergo Mine (Pty) Ltd will be given a license to process mining tailings at Marievale, about 60km south-east of Johannesburg, to recover gold residue in mining waste sitting in tailings dams there. Part of this project involves installing a pipeline to move the waste about.
Civil society group 360 Degrees Environmental Organisation has specific concerns about the pipeline aspect of the development, and has been representing affected communities since the EIA process started in October 2019.
But after the draft EIA was submitted, COVID-19 restrictions disrupted the public participation processes that should have taken place for the EIA to be completed in time for the final July 2020 deadline.
In the organisation’s ongoing efforts to represent communities’ needs and allow them to be part of this important public participation process, 360 Degrees’ Sandile Nombeni raised a red flag about concerns the organisation had relating to how inclusive the EIA process was, as well as gaps in the analysis within the EIA itself.
The first correspondence to the consultancy firm that was hired to do the EIA on behalf of the mine was to ask that the deadline for the final EIA be rescheduled so that the necessary communities could have the opportunity to have their voices heard. The second correspondence was to draw attention to the fact that the issue of climate change was absent from the EIA, meaning that it did not stand up to the requirements of South Africa’s legal frameworks which call for a ‘full and proper assessment of climate change impacts’ for this kind of mining application process.
Nombeni, who handled the submissions relating to Ergo Mine (Pty) Ltd’s EIA process, pointed out that the mine’s activities already contribute to ‘air pollution in the area, dust contaminants affecting the community of Geluksdal in Tsakane and other surrounding areas and farms’, and that the EIA for the new development ignores the ‘potential impacts of a changing climate on the exploration activities’.
‘There must be a climate change impact assessment to understand how this application will worsen the impacts felt and experienced by communities,’ Nombeni writes in his submission.
The process of submitting this kind of paperwork, in order to follow the necessary public participation procedures, is just a small part of the wider community mobilisation which 360 Degrees is involved with, in an effort to have communities’ voices heard in mining development decision making. But this process, and reading Ergo’s EIA paperwork, shows how technically complex and bureaucratic the whole process can be, which for many can be an insurmountable hurdle to taking part in democratic governance.
Nombeni says 360 Degrees has roped in experts to assist, including a researcher from the University of the Witwatersrand, to help the organisation and the communities better understand the details of the proposed development and access the EIA processes.