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Chapter 3- DEMOCRACY, GOVERNMENT & PUBLIC PARTICIPATION

Structures of national government and public participation

The different branches of government at national level provide different opportunities for public participation. The following section firstly looks at the structures of national government and secondly at the possibilities for public participation within these structures.

Structures of national government

The executive branch

The executive branch is responsible for the day-to-day running of the country. These are some of the functions of the executive:

• to initiate laws and policy
• to carry out laws passed by parliament
• to carry out policies
• to co-ordinate the functions of the government departments and administrators
• to plan, monitor and evaluate government programmes

Key role-players and structures in the executive

It is important to know what structures exist as they can be useful as a point of entry for your lobbying action.

The President, Cabinet and Deputy Ministers are called the Executive y. The head of state is the President and he/she leads the Cabinet. The President is elected by the National Assembly from among its members, and leads the country, in accordance with the Constitution and the law.

The key role-players in the executive that may play a role in formulating policy or drafting law will be:

• Head of state
• Deputy-head of state
• Heads of ministries who are in charge of different government departments
• Inter-departmental committees

Often policy will cut across a number of ministries and departments. Inter-departmental committees are set up, using representatives from different departments, to deal with the policy as a whole. For example, in the case of delivery of water, this may involve the department of water affairs, environmental affairs, tourism, finance and local government affairs. In 2009 Cabinet identified the priorities of government and adopted a new approach to planning and monitoring called the Outcomes Approach. – under the Minister of Performance Monitoring and Evaluation in the Presidency.

12 Outcomes were adopted by Cabinet as follows:

• Outcome 1: Improved quality of basic education.
• Outcome 2: A long and healthy life for all South Africans.
• Outcome 3: All people in South Africa are and feel safe.
• Outcome 4: Decent employment through inclusive economic growth.
• Outcome 5: A skilled and capable workforce to support an inclusive growth path.
• Outcome 6: An efficient, competitive and responsive economic infrastructure network.
• Outcome 7: Vibrant, equitable and sustainable rural communities with food security for all.
• Outcome 8: Sustainable human settlements and improved quality of household life.
• Outcome 9: A responsive, accountable, effective and efficient local government system.
• Outcome 10: Environmental assets and natural resources that are well protected and continually enhanced.
• Outcome 11: Create a better South Africa and contribute to a better and safer Africa and World.
• Outcome 12: An efficient, effective and development oriented public service and an empowered, fair and inclusive citizenship.

The legislative branch

The legislative branch of government has the following functions:

• to develop and pass laws
• to contribute to developing policy
• to act as a watchdog on the activities of government institutions in the executive

The legislature consists of national parliament which is made up of different structures, for example, a National Assembly, National Council of Provinces (NCOP) and various parliamentary committees. These are the key structures that you can lobby in the legislature:

Parliamentary committees

The national parliament usually divides the members of parliament into small groups which focus on specific areas of governance. These smaller groups are called parliamentary or portfolio committees. The main role of the portfolio committees is to -

• make sure that issues and new bills are properly debated and looked at carefully
• allow members of parliament to become specialized in a particular field of interest, such as defence or agriculture
• provide a forum where the public can interact with parliament and government on specific issues and new bills
• discuss and assess the activities of other government departments

At the time of writing, there were 36 portfolio committees in national parliament, one for each government department and several internal to Parliament. For example there are portfolio committees on correctional services, health and international relations and cooperation.

The parliamentary committees of the National Council of Provinces are called Select Committees. There are 14 select committees.

Other important role-players in the legislature include:

• the speaker of parliament
• the political party whips
• the parliamentary committee chairpersons
• the committee secretaries
• political party caucuses and study groups (these are not open to the public but you can lobby key members before meetings to raise issues)

Public participation in the process of making laws and policies at national level

It is important to know how laws and policies are made as these processes provide opportunities for public participation

What is the difference between a law and a policy?

A law sets out standards, procedures and principles which must be followed. If a law is not followed, those responsible for breaking them can be taken to court.

A policy outlines what a ministry hopes to achieve and the methods and principles it will use to achieve them. It states the goals of the ministry. A policy document is not a law but it will often identify a need for new laws in order to be able to achieve its goals.

So, policy sets out the goals and planned activities of government but it needs laws to implement the policy. Laws, on the other hand, when they are being drafted, will be guided by the current policy.

All laws and policies are made in terms of the Constitution and may not contradict the rights embedded in the Constitution.

Making new policy

This is a basic format to show the process of making new policy:

1. The government identifies the need for, and drafts a new policy.
2. Government identifies key issues
   The appropriate department will identify key issues that are relevant to the problem. This is done through research and consultation with people in the field.
3. Government explores policy options. Once the department has explored the key issues, it will draw up a document outlining the key issues and give suggestions for solving the issues. This document is called a green paper or discussion document, and is open to the public for comment (typically for a few months)
4. Government finalises the policy
   The Department and Ministry look at all the issues and options, decide which issues are important and how they intend to address these. They also take into account public comment on the green paper or discussion document. Cabinet will have to approve the government's final policy positions. The policy is then published as a white paper. The white paper often forms the basis of laws which have to be passed in order to give effect to the policy.

When can you participate during the policy-making processes?

There are critical key moments in the policy and law-making process when it is best to lobby. These are linked to -

• the stage in the process of developing policy or law
• knowing the institution and person involved who has the power to make changes, etc

Making new laws

The job of drafting new laws is most often done by government departments. The government may decide they need new laws to achieve their objectives or to carry out policies that have been drawn up. A draft bill is a draft law that has not been passed by Parliament. 'Passed' means approved. An act is a law that has been passed by Parliament.

This is a summary of the basic steps for passing a law:

1. A draft bill is drawn up. A bill can be introduced in the National Assembly by a Cabinet Minister or Deputy Minister, a parliamentary committee, or a member of the National Assembly. The draft bill can be made open to the public for comment. Once the public has made its comment the department will make any changes that they think are necessary.
2. Minister tables the bill in parliament. The bill is given a number, for example, Bill 25 of 20101
3. Parliament looks at the contents of the bill and sends it to a parliamentary portfolio committee for consideration.
4. The parliamentary committee debates the bill. The parliamentary committee may ask the public for comment on the bill. They will then usually hold hearings for anyone to attend where they debate the bill. Once they have made any changes they must send their report back to parliament.
5. Parliament votes on the bill. At least half the members of the National Assembly must vote in favour of the Bill for it to be approved. If there is no majority, the Bill is rejected.
6. If the National Assembly has approved the Bill it gets sent to the National Council of Provinces (NCOP). The NCOP considers the Bill. It can approve, suggest changes or reject the Bill. If it approves the Bill, it refers it back to the National Assembly to be passed.

If the bill is about something that only the National Assembly can make law on:

The NCOP can approve the bill or suggest changes but the National Assembly decides what the Bill finally says. Each member of the NCOP has one vote, and a simple majority of members is needed to approve the Bill. (A simple majority means half the votes plus at least one vote must be for the Bill.) – called a Section 75 Bill

If the matter is one that provinces can make law on: (Section 76 Bill)

The NCOP can approve, suggest changes or reject the Bill. To approve the Bill, each province has one vote and at least five of the nine provinces must vote in favour of it.

If the NCOP suggests changes or rejects the bill and the National Assembly doesn't agree, the NCOP can refer the bill to a mediation committee to resolve any differences.

- The mediation committee consists of 9 members of the NCOP and 9 members of the National Assembly.
- If the mediation committee resolves the differences, it refers the bill to the National Assembly to be passed.
- If the National Assembly and NCOP still can't agree, then the National Assembly has to have a special vote to make the bill law. It will only become an act if it gets a two-thirds (66%) majority in the National Assembly.

7. The NCOP may advertise public hearings on Bills where they ask for public comment. People can also send their written submissions to the NCOP.
8. The National assembly passes the bill.
9. Head of state signs the bill and it gets published in the Government Gazette. When this has happened, the bill becomes law and it is called an Act.

When can you participate during the law-making process?

There are critical key moments in the law-making process when it is best to lobby. These are linked to -

• the stage in the process of developing law
• knowing the institution and person involved (who has the power to make changes, etc)

PARTICIPATING DURING THE LAW-MAKING PROCESS PARTICIPATING DURING THE LAW-MAKING PROCESS

The following example summarizes the policy and legislative processes leading up to the passing of an Act of Parliament, the Water Management Act.