Law-making for dummies

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Unpacking the role of the legislature and the making of laws in South Africa

By Noelle Garcin
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Walking down the alley of the Company’s Gardens in Cape Town, I never fail to be impressed by the majesty of the red and white Parliament building that emerges between the trees. Only last year, as I attended a parliamentary Committee meeting, did I learn that it is the house of the National Council of Provinces (NCOP), one of South Africa’s two national parliamentary chambers.
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NCOP building © African Climate Reality Project
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Travel 1,700 km northeast of Cape Town, and you will find another complex equally impressive in size and colours tucked away in Lebowakgomo, 50 km south of Polokwane. It is the seat of the Limpopo Provincial Legislature, one of South Africa’s nine provincial parliaments, which I have had the opportunity to visit recently as part of ‘Action 24’, a project co-funded by the European Union.
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Limpopo Provincial Legislature © African Climate Reality Project
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The styles are very different, an architectural reflection of the country’s diversity, as it were. But what really matters about these buildings is what they stand for. These places, which form part of the South Africa’s legislature, are at the core of our democracy.

I suspect that, just like me, many South Africans are intrigued by what happens within these institutions. Government does appear, at times, as a distant, complicated and opaque system, a mish-mash of red tape and party politics which many citizens will find hard to relate to – never mind engage. Strangely enough, the institutions mandated to represent the people seem to be the ones that citizens understand the least and feel the most distant from. Ask yourself and those around you: do you know who represents you in the national and provincial legislatures? How many of us even know how these institutions function, and what they are currently working on – on our behalf?

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A key feature of democratic states like South Africa is that they are governed by three distinctive, independent, yet interrelated arms: the legislature, the executive and the judiciary. Each of them has specific powers and areas of responsibilities delineated in such a way as to balance and hold each other in checks in the act of governing the country. This separation prevents the concentration of power in the hands of one institution, which increases the risks of abuses.

The legislature consists of the national Parliament based in Cape Town and the nine provincial legislatures in each of the country’s provinces. Together with the municipal councils, it is the only arm of government whose members are elected by the citizens of South Africa, whether directly or indirectly. As such, it plays a critical role in ensuring that “government is based on the will of the People” (Preamble of the South African Constitution,1996).

More specifically, the Constitution of South Africa gives the legislature three mandates: represent the people; make laws; scrutinise the actions of the executive arm of government, and hold them to account on behalf of the people.

The legislative process has a critical influence on the content of the law. Thus, it is essential to build the public’s understanding of the procedures that the legislature must follow in order to consider and pass legislation.

Let’s be honest: unless reading the Constitution or the Hansard is your idea of a fun evening, deciphering the law-making process might not be the most exciting thing, and the language does get technical. Parliament and the provincial legislatures are putting some efforts in educating the public, but it isn’t an easy task. While the material they provide online is very informative, it is not necessarily sufficient to get a clear picture. The Parliamentary Monitoring Group also offers a wealth of information, including a useful tool to track and document the process followed by each bill tabled in Parliament.

Perhaps one easy (-ish) way to understand the process in broad strokes is to use a bill currently under consideration as a concrete example.

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Parliament is currently considering amendments to the National Environmental Management Act of 1998, which governs the principles for decision-making on matters affecting the environment, and the roles and procedures for co-ordinating environmental functions in South Africa.

The environment is one of the areas for which both the national and the provincial spheres of government are competent. In other words, the Constitution provides that both the national and provincial spheres of government may pass legislation on environmental matters. Schedule 4 of the Constitution provides a list of all the areas considered of “concurrent national and provincial legislative competence”.

The National Environmental Management Laws Amendment Bill has been categorised as an “ordinary bill affecting the provinces”, which means that Parliament must involve the nine provincial legislatures when considering the bill. The procedure is defined in Section 76 of the Constitution – hence these bills are often referred to as “Section 76 Bills”.

Conversely, some bills do not affect the provinces. Section 75 of the Constitution outlines the procedure to be followed for those bills, in which the National Council of Provinces plays only a consultative role.

But back to our Bill. The proposed amendments were introduced by the Minister of Environmental Affairs, in charge of the environmental portfolio in government. While most bills are drawn up by government departments, they may also be initiated by Parliament – except for “money bills” that deal with the allocation of public money. The same applies at provincial level, where both the Executive Council and the legislature can initiate bills.

This Amendment Bill, aka ‘B14-2017’, was tabled in Parliament in May 2017. It went first to the National Assembly where it was referred to the Portfolio Committee on Environmental Affairs. The Committee is responsible for conducting all the necessary reviews and consultations on the bill, before putting it to the National Assembly for consideration and vote. Usually, this is the best time to lobby for changes or to challenge the principle of the bill.

In this case, the Committee was briefed on the proposed amendments by the Department of Environmental Affairs (January 2018); requested legal opinion on the bill (March); and organised a public hearing in April, allowing for several stakeholders from the public to raise issues or make recommendations regarding the implications that these changes may have on the management and protection of South Africa’s natural environment. A few days ago, the Committee invited the Department to respond to the submissions made by the public.

From this review, the Committee will draw a report including its findings and recommended changes, if any. It will be submitted to the National Assembly for a vote on the Bill and on the suggested changes.

The Bill will then go to the National Council of Provinces. Because it affects the provinces, the vote in the NCOP will be determined by the decision that each provincial legislature will make on the Bill. To do that, the provincial institutions will consider the text and vote following a process similar to the one of the National Assembly. Here again, the provincial legislatures are supposed to engage and consult the public on the Bill, especially interested parties that may be affected by it. Once each of them has reached a decision, the NCOP will debate the Bill in plenary and vote to either pass, amend or reject it.

Should the two Houses of Parliament disagree on what to do with the Bill, it will be referred to a Mediation Committee to seek a compromise. If the matter cannot be resolved, the National Assembly will have the power to override the NCOP’s decision, provided that it gets a two-thirds majority of votes. To some extent, this gives the Assembly the upper hand, although

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How law is made is a defining feature of our democratic society. The procedures, designed in 1994, aim to uphold the public interest and the rights of all citizens. Each one of us should have an understanding of that process, and the opportunities to influence it.

Those already in the know should equally reflect on whether they make the most of their right – and duty – to take part in shaping the rules of society. This is all the more important because the decisions that we make today define the type of society, and the quality of the environment, that the future generations will inherit from us.

So next time you pass a Legislature buildings in Cape Town or elsewhere, be an active citizen: go check what is happening inside.
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Law-making for dummies

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