Governance warning lights flashing: Shortcuts and fudged legislative processes undermine SA democracy

3 Sep 2023

Ministers rushing draft laws to Parliament in the last months of 2023 may reduce their to-do lists and clinch a PR moment or two before next year’s electioneering. But it’s the illusion of governance – and the shortcuts and fudging of legislative processes undermine democracy.

Only 11 out of 42 laws in a 2023 Cabinet legislative programme that includes 14 priority Bills, were correctly tabled in Parliament during the first eight months of the year, according to the National Assembly programming committee.

The final deadline for ministers to get their draft laws to the national legislature was Monday, 4 September 2023, it emerged at Thursday’s committee meeting. The extension was agreed to after a request by Deputy President Paul Mashatile in his role as leader of government business, or liaison between the executive and legislative spheres of state.

But the reality is that Parliament’s capacity to deal with a last-minute ministerial legislative dump is at best limited. Some five months remain in the parliamentary calendar before the 2024 elections anticipated in May.

Crucially, a draft Bill submitted under Joint Rule 159 is not tabled; it’s just giving parliamentarians a heads up to plan their programme. A Bill is only properly in Parliament for processing when it’s tabled under National Assembly Rule 276. And getting the paperwork right, including the state law adviser’s certification, is key.

That’s something ministers keep fudging, as does the Presidency’s Operation Vulindlela initiative with National Treasury. While such fudginess might make good optics and PR moments for politicians, it does nothing for fact and evidence-based good governance.

It’s not all of Parliament’s making, even if its acquiescence to the executive brings self-inflicted pressure and pain.

In 2022 Parliament – twice – had to ask the Constitutional Court for extensions to finalise the electoral amendment legislation so independents could contest national and provincial elections. MPs waited for Home Affairs Minister Aaron Motsoaledi’s draft law some 18 months into the 24 months the Constitutional Court in June 2020 gave Parliament to fix the law.

The Electoral Amendment Act is currently challenged in the Constitutional Court, while public record shows the apex court found defects in at least 16 laws for the national legislature to fix.

It’ll be interesting to see if Parliament’s Joint Standing Committee on Intelligence will do its own Bill on amending intelligence services legislation after delays by the ministry, as it indicated in the May Budget Vote debate.

A ministerial draft General Intelligence Laws Amendment Bill is now before Parliament “for information” under Joint Rule 159, according to the Announcement, Tablings and Committee Reports of 29 August.

Cabinet’s lackadaisical, even cavalier, attitude to lawmaking is best illustrated by its handling of key structural reform legislation for South Africa’s socioeconomic improvement.

Water and Sanitation

On the water front, where outages and pollution threaten communities’ health and wellbeing and also economic activity, Operation Vulindlela as far back as mid-2022 pledged an agency to coordinate, regulate and supervise bulk water resources and infrastructure.

In September 2022 Water and Sanitation released a draft law for public comment, extended to March 2023. The Cabinet approved the draft law for submission to Parliament at its meeting on 21 June.

At the end of August 2023, that National Water Resources Infrastructure Agency Bill was in Parliament – but only “for information” under Joint Rule 159. Formal tabling remains outstanding, and until that’s done, MPs can’t start processing this legislation.

But at 14 months to date, this Water and Sanitation legislative process is one of the faster ones.

Electricity and energy

On the electricity and energy front, fudginess prevails.

After a messy four-month delay after a “for information” submission under Joint Rule 159, Parliament now has properly before it the Electricity Regulation Amendment Bill to overhaul the electricity regimen from transmissions operator to feeding private power to the national grid.

It’s taken some 17 months to get here.

On 10 February 2022, the draft Bill was published for public comment, with Mineral Resources and Energy Minister Gwede Mantashe saying it would be before Parliament at the end of July 2022, according to his then Budget vote speech.

Although Parliament’s mineral resources and energy committee has a full legislative and Budget oversight programme, political pressure may be brought to bear. Or as the most recent Operation Vulindlela update put it, “Engagement is underway to ensure that the Bill can be considered within the Sixth Parliament, given its importance in addressing the energy crisis.”

Unlikely, without shortcuts given the parliamentary calendar – and workload that now includes processing adjustment allocations of October’s Medium-Term Budget Policy Statement.

But even more bizarre is the much-promised Energy Security Bill which Electricity Minister in the Presidency Kgosientsho Ramokgopa two Sundays ago again indicated would soon be done and dusted.

Daily Maverick couldn’t trace even a draft Bill released for public comment, the first stage in the executive law-making process. It’s understood that’s because it’s still being drafted.

But, according to President Cyril Ramaphosa in his 31 May Budget Vote speech, this energy security legislation to “streamline the regulatory framework and accelerate the construction of renewable energy projects” would “soon” be in Parliament.

“I call on the Members of this House, from all political parties, to pass this critical legislation in record time, while adhering to required Parliamentary processes. We need to do so in months, not years…”

Pretty words and manufactured PR moments are not what’s needed for the quality lawmaking required to resolve South Africa’s urgent priorities from electricity and water to fighting corruption and more.

Parliament needs to assert itself as the constitutional legislator. It’s absurd the national legislature has just five legal drafters – word is more are to be recruited – and MPs don’t have the support to get necessary quality technical information for decision-making.

The executive’s supercilious attitude and lack of pace are unhelpful at best. Cabinet’s failure to deliver on its self-set legislative programme – 11 out of 42 is a sliver over 25% – is yet another disservice to a country in need of so much. Quality legislation is a first step to remedy South Africa’s socioeconomic priorities. DM

Categories:

Tags:

DM is much better if you are signed in...

South Africa

Water and Sanitation

Electricity and energy