EDITORIAL: Public participation is key

By Business Day Live

A rocket from the Constitutional Court is well deserved. Parliament must do better.

When the Constitutional Court dispatches a rocket, it usually does so with great accuracy. In the matter of the Traditional and Khoi-San Leadership Act, it not only found the act to be unconstitutional but also that “parliament and the provincial legislature overwhelmingly failed to fulfil their constitutional obligations to facilitate a reasonable public participation process”.

The details explain the strength of the court’s language. It found, inter alia, that “Insufficient notice was given ahead of many of the hearings. At some hearings, there was a failure to conduct prehearing education. Some of the hearings were inaccessible. Limited transport was provided, and hearings took place in venues far from where people lived.” Documents were also not provided in the right language.

In SA we have a habit of interrogating bad news through a lens of trying to understand the angle, to understand who benefits. But, as has been said in various ways, it is not always right to ascribe to malice what might be due to incompetence or indifference.

It is right for the court to have upbraided parliament so strongly for its disrespect for the full democratic process. Public participation, most especially in legislation that will have profound consequences for the lives of poor people who have few advocating for them, is critical in delivering the protections promised in the constitution. Duly admonished, parliament must do better.

This article first appeared in Business Day Live on 2 June 2023.

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