When is it bull-dozing?

Since the start of this election year, accusations have been made about important pieces of legislation being pushed or “bulldozed” through Parliament, specifically pointing fingers at the ruling party who has been accused of rushing through bills to garner more support from the public.

Some of the concerns were that insufficient consultation time was given to the public committees and the provinces to deliberate on the bills, and consequently, that the proper legislative process was not being adhered to.

The parliamentary stage is the culmination of a much longer process that starts with the formulation, drafting and certification of a bill. The parliamentary process is specific and is set out both in the Constitution and the Rules of Parliament.

Given the ongoing concerns about the number of bills being “rushed through”, People’s Assembly decided to examine: a) the average time it takes for a bill to be passed by Parliament from introduction, and b) the average time it takes for the President to sign a bill into law. For the latter enquiry, we were interested in finding out how much time the President takes in exercising his constitutional obligation. The study focused on bills introduced in 2012 and 2013.

The legislative process can take up a major portion of Parliament’s time. Our investigation showed that the average time taken for bills to be passed by Parliament from the date of introduction was 266 calendar days (excluding parliamentary recess). It is interesting to note that of the bills introduced after 1 October 2013 (27 bills in total), the average time taken for bills to be passed by Parliament decreased to 96 days.

The Protection of State Information Bill (POSIB) is claimed to be the most controversial piece of legislation in post-apartheid South Africa. The bill triggered an unprecedented storm of protest by civil society and the media. As a consequence, it underwent an exhaustive process in both the National Assembly and the National Council of Provinces. There were close to 100 committee meetings - public hearings and deliberations - on this bill, making it one of the most consulted bills since 1994. In contrast, it could be argued that there are other bills of equal importance that have been passed hastily. These include the Minerals and Petroleum Resources Amendment Bill where some of the provinces expressed reservation about the public participation process not being comprehensive enough.

It is not always a bad thing if a bill is fast tracked. It might even be a necessity. In 2013, the National Assembly and the National Council of Provinces (NCOP) amended the Sexual Offences Act in a matter of days. The speedy processing was due to a Western Cape High Court finding that Parliament had omitted to prescribe sentences for at least 29 offences in the Act, and so it had to postpone all such cases until this flaw was fixed.

It is hard to draw any conclusions why some bills are processed quicker than others as there are too many variables. Some bills are complex, some are contentious, and quite often the process is stalled because the implementing Department has not costed the Bill or addressed outstanding issues. Added to this, Parliament operates in terms of a programme and MPs have other oversight and constituency work. Sometimes these commitments will supersede their legislative work.

In respect of the second enquiry, we found out that the President took an average of 57 days to sign a bill into law. This figure is slightly distorted given that a Bill is not immediately signed. Parliament must first conclude its own internal process, which includes translation.

Another factor that contributes to the delay is that the President has to apply his mind as to the constitutionality of a bill- there are currently 34 bills awaiting his signature. This means he has to seek counsel and consider submissions made to him before deciding whether to sign a bill into law. When the POSIB was sent to the President for assent, he returned it to Parliament citing the “irrationality and unconstitutionality” of clauses 42 and 45 of the legislation. The Bill was corrected and passed by Parliament and then resent to the President for assent in mid November last year. It is however puzzling that it has not yet been signed even after his concerns had been addressed. Cynics have suggested that it is not politically convenient to do so close to an election.

The ultimate test may not be how rapidly Bills are passed by Parliament but whether legislators have passed good laws that can withstand scrutiny. The Speaker of the National Assembly sums this up best, saying:

“More and more legislation is returned to the National Assembly for correction – either section 75 legislation which the National Council of Provinces (NCOP) has recommended that the Assembly amends to make it constitutional, or legislation that was found to be unconstitutional by the courts. This speaks both to the constitutionality of the legislation passed, as well as its quality.

The poor quality of legislation is often the consequence of inadequate scrutiny. As the subject matter of legislation becomes more sophisticated and highly technical, our Parliament and members must become more professional. This requires the necessary capacity both in terms of technical support by the officials and capacity building for Members”.