Health regulations and police minister fiascos expose contempt for public participation

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Martin van Staden | Legal Fellow | Sakeliga | mail me |


The South African Constitution envisages public participation in the formulation and adoption of public policy. Government claims to consult the public through the participation process, but recent events have confirmed that it effectively ignores public input and regards it with contempt.

In June, the business group Sakeliga was able to unveil some of this contemptuous posture towards public participation by analysing the Department of Health’s own data of public submissions on health regulations which effectively aimed to entrench emergency powers temporarily accessed from 2020-2022. That analysis showed a government acting in bad faith and almost entirely disregarding public opinion going against its policy proposals.

Various civil society organisations, including the public participation platform Dear SA, facilitated the submissions of over 300,000 South Africans on the proposals. Of all comments, sampling and text analysis found that about 97% opposed the regulations. Only less than one percent of the submissions appeared to have been collated and considered with some attention by the department.

The health department knew what it was doing. An email revealed that some in the department believed this mass of disregarded commentary was simply ‘anti-progressive’ and it would have been a ‘waste of resources’ for government to pay any attention at all to it. A staff member in the department even remarked that the “actions of these groups [Dear SA et al.] can be viewed as sabotage, instigating chaos or terrorism against the state.”

More recently, police minister Bheki Cele showed his own contempt for input from the public, telling a citizen to “shut up” and “get out” when the latter probed Cele with pointed questions about the management of the police service. Cele articulated loudly what has silently been government’s approach to public.

This approach to public input processes is far from what the public expects.

National Health Insurance, a new preferential procurement law, and permanent regulations for future pandemics are all at various stages of the public comment process today. On what basis can South Africans confidently participate in these processes given how contemptuously the government has treated comments before? After all, public consultation does not simply mean one has a platform to voice one’s concerns – someone must actually belistening.

When people can play no part in policy-making, laws and regulations rightly lose their legitimacy among the population expected to adhere to them. The principle of nihil de nobis sine nobis (nothing about us without us) is a pillar of a legitimate constitutional order.

The entrenched principles in the Constitution governing public administration require among other things a consultative administration that encourages public involvement in policy-making. The government is expected to always conduct itself diligently and transparently when giving effect to this requirement. There should now be little doubt, however, that South Africa’s government fundamentally lacks a consultative spirit and finds it offensive when members of the public dare oppose its socially and economically destructive policy proposals.

This attitude has unfortunately affected policies in the past.

Only a short while ago Parliament confidently adopted the idea of property confiscation (expropriation without compensation) after going through a highly disorganised public participation process. A clear majority of written submissions were opposed to confiscation. The country only averted disastrous property confiscation because of a political dispute between the ANC and EFF. Otherwise, the Constitution may have been changed, sweeping away security of tenure for millions.

South Africa’s lockdown policies, which were first announced in March 2020 and revised repeatedly for almost two years, were never subject to public consultation. This was likely because government knew the answer, from almost all South Africans, was going to be ‘no way’.

What other important legislation and regulation over the years was rammed through an inadequate public participation process? And what about important future policies?

Given the disdain government exhibits towards a citizenry that is eager to voice its opposition to proposed policy, remains important to make our voices heard. It is much easier for government to ignore a handful of oppositional comments than to ignore an undeniable wave of public opinion against its proposals. The ANC has itself admitted that when this ‘balance of forces’ shifts against it, it is wise to hold back or abandon its plans. And while a new balance of forces often requires substantially more than submitting comments on a new policy, these comments can provide indication of a powerful tide of popular opposition.

Government can only ignore and dismiss the demands and input of the public for so long before the thin veil of political legitimacy falls away. Continued and active participation by ordinary people puts immense pressure on government to either pay serious heed to well-considered input or run afoul of constitutional requirements and lose popular support.




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