by Roger Claude Liwanga
(Note: This article was first published in the Opinions section of the Cape Times on Wednesday, March 5).
A couple of decades ago, South Africa was one of those countries where the population was denied the right of public participation. Public participation, which implies “an acknowledgment that both individuals and people are entitled to be masters of their own destinies and participate in decisions that fundamentally affect their lives”, is one of the basic human rights.
Several juridical instruments establish a human right to participate. For instance, article 25 of the International Covenant on Civil and Political Rights (ICCPRI) states that: “Every citizen shall have the right and the opportunity, without any…distinctions…and without unreasonable restrictions:
“(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote and to be elected at genuine periodic elections which shall be by secret ballot, guaranteeing the free expression of the will of the electors.”
Article 13 of Charter on Human and Peoples’ Rights (“African Charter”) goes further in stipulating that: “Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”
In June 1999, the government set the Directorate of Special Operations (DSO), popularly known as the Scorpions, whose purposes is to investigate and prosecute organized crime and and corruption. Now, so soon after its birth and in a climate of crisis, the state institutions are scrutinizing ways to reduce its power or even to disband it through a legislative Act.
Is it not time to encourage citizens to participate in that process? What are the juridical consequence of failing to involve people in the decision-making process regarding this crucial matter?
In a democratic society, public participation is often reduced to elections. Yet the broader elements, including the “right to access to information”, “the right of participation in decision-making process” and “the right to access to justice” are crucial.
In terms of section 32(1) of the constitution, “everyone has the right to information held by the state (public body) and another person (private body) for the exercise or protection of any right”. The right of access to information therefore provides an opportunity for any person to request records from government and private bodies.
The right to participate in law-making process is the second element of public participation. This implies that citizens must be involved in the process of making law about their destinies.
Accordingly, the 1996 Constitution of South Africa, through sections 72(1)(a) and 118(1)(a), states that: “the National Council of Provinces must facilitate public involvement in the legislative and other processes of the council committees”; and, “ the provincial legislature must facilitate public involvement in the legislative and other processes of the legislature and its committees”. These provisions recognise citizens’ inherent right to be involved in the decision-making process and compel the legislative authority to facilitate this public involvement.
Similarly, in the Doctors Life International v Speakers of National Assembly and Others case, a majority of judges in the Constitutional Court concluded that “the National Council of Province had failed to comply with its obligation to facilitate public involvement in relation to the choice on Termination of Pregnancy Amendment Act 38 of 2004 and the Traditional Health Practitioners Act 35 of 2004.”
This meant those Acts were inconsistent with constitutional provisions. And in terms of section 2 of the constitution, all laws or conducts inconsistent with its provision are invalid.
Since the destiny of citizens depends on the outcomes of Parliament’s decisions on the Scorpions, it is time to involve them in the decision-making process.
Liwanga is the xenophobia and racism project coordinator at SAMGI.
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