There was inadequate public consultation at recent public hearings in Limpopo by Parliament to elicit public comment on the law-making processes as embedded in the Constitution. Rural communities were deprived of a right to access information, over-crowded and remote venues made it virtually impossible for many to participate. Parliament has failed to comply with all set requirements for meaningful and substantive public consultation.
In one month, Limpopo witnessed various hearings on legislative processes by Parliament, at various stages, from the review of Section 25 of the Constitution to Traditional and Khoi-San Leadership Bill (TKLB), Indigenous Knowledge Bill (IKB) and Restitution of Land Rights Amendment Bill (RLRAB).
Though public hearings have concluded, it is necessary to put on record the disturbing pattern that emerged from them. For one, the frustrations of rural communities promised transport that never arrived and the lack of supporting documentation and no attempt made to provide accurately translated summaries.
On the 6 June, a TKLB hearing was held in Polokwane at Bolivia Lodge in a manner parliament seemed to shape consultation in ways that excluded people who would be affected by the bill. Firstly, there were no notices made to the wider rural communities, poor advertisement of and limited accessibility to the hearings seemed as deliberate attempts to exclude those who would be affected by the bill and to silence opposition.
Rural communities had to rely on non-governmental organisations (NGOs) to alert them to legislation that could have serious implications for them.
Meanwhile, the IKB hearing was held on the same day in Lebowakgomo. For these reasons, participants at TKLB hearings were informed on arrival that the hearings were postponed due to “poor attendance” and the new date would be communicated in due course – which never materialised. In the postponement of TKLB hearings, it is suspected that it was due to poor attendance of traditional leaders who were at the IKB hearings.
Unlike ordinary rural citizens at TKLB hearings, traditional leaders at IKB went through the brief of the bill beforehand and enjoyed transportation to and from the hearings. Parliament had planned single public hearing in Limpopo which took place during the week. The prior consultation and political education, with traditional leaders, including their transportation, to the exclusion of ordinary community members, will result in legislation that grossly skews relationships in favour of traditional leaders at the expense of people that they are supposed to serve.
Attending public hearings on both TKLB and IKB, that may have massive implications for rural communities with claims of equality before the law and access to resources, was a task fraught with difficulties. The practical difficulties of getting to the actual hearings were combined with the difficulties of understanding the substance of the legislation, in order to engage with legislation meaningfully.
A pattern emerged from the public hearings on the amendment of Section 25 of the Constitution and the Restitution of Land Rights Amendment Bill that was exclusionary of rural citizens in the law-making processes, the hastily organised hearings located at great distances from affected regions undermined a fundamental premise of constitutional democracy.
Public hearings on the amendment of Section 25 were held in large towns and cities — far from the province’s main landless rural people with no security of tenure residing in communal areas and commercial farms. This deliberately excluded majority of the rural poor who could not make it to urban areas due to distance.
In all of the three hearings held in the province, a tabled motion at Parliament and the Section 25 of the Constitution – in its current form – was neither distributed to communities nor explained to them before the hearings.
Hearings were organised during the week; the working rural populace such as farm workers automatically missed out. It is a public knowledge that commercial farmers refuse to release farm workers to attend events of this nature, especially at short notice.
Local languages were not adequately accommodated in all the public hearings. For instance, in Sekhukhune, only Sepedi version of the RLRAB draft was circulated. This happened despite the fact that only two public hearings were organised in the same province, a distributed draft failed to cater for other vernaculars spoken in the province.
With only one Sepedi translator the parliamentary committee failed to adequately translate the oral submission made by a farm dweller who spoke in Ndebele. None of the parliament committee members spoke the language. Instead, members of the public were asked to volunteer to translate.
Had there been adequate spoken translation perhaps the absence of documents would not have been so serious, but a combination of formal translation and any written information on the bill, or even the Constitution, itself, put the community members at a considerable disadvantage.
In terms of Section 72 of the Constitution, amongst other key responsibilities, Parliament must facilitate the involvement of the public in the legislative processes. However, this was not adequately adhered to by parliament during the recent public hearings.
In 2014 parliament organised public hearings on Restitution of Land Rights Amendment Bill and quickly rushed to enact the Bill into law before the 2014 general elections. Land Access Movement of South Africa(LAMOSA) supported by the Legal Resource Centre(LRC) and other civil society organisations took the government to court. Part of their reasons to take the matter to court was that the public hearings were not adequately conducted and excluded key people that are affected by the possible amendments. It seems like parliament has ignored this landmark judgement on public hearings as it continues to commit the same mistakes as in 2014.
The need to open this conversation about the realisation that the public has the right to participate in the review or amendment of South African laws as enshrined in the Constitution goes to the heart of the role of Parliament in contemporary South Africa.
It is my hope that this opinion will facilitate such a discussion. DM
Molatelo Mohale is a Programme Officer at Nkuzi Development Association, a partner of Tshintsha Amakhaya
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