Frontline Africa Advisory

Rejected and Court Overturned Laws Should Serve as a Wakeup Call for Government

Rejected and Court Overturned Laws Should Serve as a Wakeup Call for Government

In 2020, government launched the National Policy Development Framework (NPDF) to address increasing weaknesses in South Africa’s policymaking, coordination and coherence.

According to the Presidency, “The National Policy Development Framework will guide all government departments in drafting their respective public policies. The framework seeks to standardise the policy formulation processes across all spheres of government. In doing so, it will set out the basis for policy development (codifying practice and process), coordination, policy making cycle, expected standards and institutional arrangements to be put in place for effective policy development and implementation”. It further stated that it will also contribute to the inculcation of a culture of evidence-based policymaking towards improved service delivery.

Key to the NPDF, is the participation of various stakeholders in the conceptualisation and development of policies. This is to ensure that the policymaking process is inclusive, transparent, and rational, and that ultimately bills are not returned by the President to parliament or rejected by courts on account of failing to pass the constitutional master. The NPDF also ensures that stakeholders do not turn to the courts to have ill-considered laws overturned.

The sheer number of bills rejected by President Ramaphosa since 2020 should be a cause for concern. In 2020, Ramaphosa returned four Bills to Parliament for reconsideration, namely: Performers’ Protection Amendment Bill (2016); Copyright Amendment Bill (2017); Protection of State Information Bill (2010); Liquor Products Amendment Bill (2016). Notably, the Protection of State Information Bill was sent back to parliament after being on the President’s desk for seven years, following concerted pushbacks from various civil society organisations opposed to its signing. In January 2021, the President returned the National Land Transport Amendment (NLTA) Bill to the National Assembly (NA) owing to reservations about its constitutionality.

On 13 January 2022, the Pretoria High Court ruled that South Africa’s Administrative Adjudication of Road Traffic Offences (AARTO) Act, and the AARTO Amendment Act were both unconstitutional. This was after the Organisation Undoing Tax Abuse (OUTA) petitioned the court in October 2021 to declare both the main act and the amendment act unconstitutional.

The case of AARTO should serve as a wakeup call for all government departments and parliamentary portfolio committees when it comes to inclusive and transparent policymaking in the country. In essence, the Department of Transport’s failure to seriously consider submissions from stakeholders such as OUTA, other civil society groups and members of the public, is a setback for South Africa’s efforts to address rampant bad road behaviour and reduce the number of accidents and fatalities on our roads. One of the fundamentals of a democratic government is citizen participation. Thus, wider participation in policy creation and execution is the bedrock of public governance and a key component of community engagement and democracy. Whatever kind of democracy is selected (representative or proportional representation, multi-party, non-party, or one-party systems), public engagement and participation is one requirement that is needed to strengthen and fortify democracy.

Therefore, if policymaking is one sided or narrow, it creates a whole layer of problems and will fail to address future challenges or concerns. The significance of policy design is grossly undervalued in current systems and has ultimately led to narrow policymaking. An increased focus on policy design aids in ensuring that the planned activities are a practical and feasible way of accomplishing the policy objectives.

Thus, wider participation in policymaking is an important instrument in policy design as well as the process of policymaking, so as to capture the views and opinions of everyone who will be impacted by the proposed legislation.

Written by Keabetswe Kganticoe

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