This blog post aims to provide an overview of the stages and processes involved in making or changing a law.
To understand the legislative process, we must first define relevant concepts
Policies are outlines of governmental goals and plans. Policies are not laws, they are strategic documents that define the regulations, activities, methods and principles that a particular Ministry intends to implement. [The drafting of policies should preceed the compilation of Green and White Papers.]
Green and White Papers are discussion documents that contextualise the landscape and the thinking around a particular policy. A Green Paper is the initial thinking of a policy and once it undergoes processes, a more refined White Paper is produced.
Bills propose new laws, amend or repeal existing laws. Bills are the drafted versions of laws.
Memorandums explain the intentions, goals and financial and other implications of the Bill. Memorandums also contain a list of all persons that have been consulted during the process, legal opinions and certification.
Laws or Acts form the system of rules everyone in the country must follow.
The Policy Making Process:
The Executive branch of the state has the power to develop policies that could eventually become law. If a Department or Minister wishes to regulate or bring change to a particular issue, they can create a policy. Policy-making often precedes the creation of a new law, and the discussions elicited from a new policy provide a foundation for new Bills to be drafted and tabled.
Relevant Ministries or government departments publish Green Papers to outline the key ideas of a potential new policy they are exploring. This opens up a discussion between the public and relevant stakeholders, who are invited to comment, make suggestions and contribute submissions.
Once public comments have been received and considered, the initial Green Paper will be reviewed and improved. After this, a White Paper will be developed to reflect a broader perspective on the new policy, including the public's comments and contributions. White Papers generally include a statement of intent and a detailed policy implementation plan. White Papers usually become the basis for the Department to draft a bill to enforce these policies.
Once the Department has considered input on the Papers published, they can begin to incorporate their proposals and suggested amendments. To make their policy feasible, the Executive must decide whether it will be necessary to enact a new law to enforce the policy. The Ministry or Department will consider the legal frameworks and the institutional requirements that have to be in place before the policy can be enforced - whether this requires a new law or amendment of existing Act. Policy documents, for this reason, often identify legislative requirements that should be affected before the policy comes into effect.
The Law-Making Process:
Now that the Executive has determined that they need to create or amend laws in order to apply their policy, they will begin drafting a bill. Bills must go through many checks before it can become a law. A draft Bill has to go through a public participation process when published in the Government Gazette for public comment. Thereafter the draft bill will be introduced (or tabled) in Parliament where it is given a number and referred to the relevant parliament committee. The Bill is now with Parliament for processing where a number of steps are taken. The steps are summarised below:
A Bill is introduced in the National Assembly, the National Council of Provinces or the Provincial Legislature.
The Bill is referred to the relevant Committee for processing including briefings on the Bill, public participation and detailed deliberations by the Committee
Parliament is empowered to make amendments to the Bill. If there are amendments, various versions of the Bill will be produced to highlight these amendments
Once the Committee accepts the Bill, it will be debated in the National Assembly Should the NA vote in favour of the Bill, it will be sent to the National Council of Provinces (NCOP) for further consideration. The extent to which the NCOP engages on the Bill, depends on whether it is a Section 75 or Section 76 (more about this later)
If the NCOP votes in favour of the Bill, it will be sent to the President or back to the NA (again depending on whether is it a Section 75 or Section 76 Bill). This is also known as 'concurrence'.
The Bill is sent to the President for assent, meaning that it is signed into law.
If the Bill is signed, it becomes an Act of Parliament, and a law of the country.
Processing Different Types of Bills in Parliament:
Bills are defined and classified according to their content, function and legal consequences. The Constitution outlines four categories of Bills and this category influences how the Bill is processed: section 74, 75, 76 or 77 Bills. The Joint Tagging Mechanism (JTM) consults with Parliament's legal unit, and other roleplayers, to determine how to classify or 'tag' the Bill, and only once they reach consensus will the Bill be tagged. If the Bill can fit into multiple categories or sections, then it could stand to be redrafted or split up into multiple Bills.
There are special requirements and procedures to amend the Constitution. The Executive, paarliamentary committee or indiividual Member of Parliament, can introduce a Section 74 Bill seeking to amend the Constitution.
If the Bill seeks to amend the Bill of Rights, it requires a vote of two-thirds of the membership of the National Assembly and the support of six provinces in the NCOP.
All constitutional amendments that affect the provinces must be passed by both Houses. Amendments which affect only certain provinces, must be passed by those provinces. Other amendments do not need to be passed by the NCOP but all amendments, whether or not they must be passed by the NCOP, must be submitted to the NCOP for public debate.
In addition, minimum times are laid down for different stages of the legislative process. All constitutional amendments must be published in the Government Gazette with a call for public comment at least 30 days before being introduced in Parliament. After the Bill which proposes amendments to the Constitution is tabled, 30 days must pass before it can be put to a vote in the National Assembly.
An ordinary Bill that does not affect the provinces can only be introduced in the National Assembly (NA). Once it has been passed by the NA, it must be sent to the National Council of Provinces (NCOP).
Delegates in the NCOP vote individually and the Bill must be passed by a majority of delegates present. If the NCOP rejects a S75 Bill or proposes its own amendments, the Bill is returned to the NA which will pass the Bill with or without taking into account the NCOP amendments or it may decide not to proceed with the Bill. The NCOP's role in Bills that do not affect the provinces is therefore a limited one. It can delay a Section 75 Bill, but it cannot prevent it from being passed.
A Bill that affects the provinces may be introduced in either the NA or the NCOP, but must be considered in both Houses.
Members of the NCOP do not vote as individuals on Section 76 Bills but rather as provincial delegations. Each provincial delegation has one vote so there are nine possible votes regarding a S76 Bill.
These Bills must also be discussed by each provincial legislature so that each legislature can give its NCOP delegation a voting mandate. This makes it necessary to have six-week legislative cycles so that a number of Bills can go to each province at one time.
Bills are usually considered by a provincial committee, which may hold public hearings on the Bill to receive comments and suggestions. These committees make recommendations to their legislatures, which then decide on their position on each Bill and mandate their NCOP delegation accordingly.
The four special delegates to the NCOP go to national Parliament to join the six permanent delegates. The full delegation of ten people participate in the national debate on the Bills, to enable the provinces to contribute to national legislation that affects them. The delegation then casts its one vote on behalf of its province and in accordance with the provincial legislature's mandate.
The NCOP must pass, amend or reject a section 76 Bill. If the Bill was introduced in the NA, however, the NA can override the NCOP decision with a two thirds majority of its Members.
Money Bills allocate public money for a particular purpose or impose taxes, levies or duties. They can only be introduced by the Minister of Finance and they must be introduced in the National Assembly. They follow the same procedure as that for Bills that do not affect the provinces (Section 75 Bills).
At present Money Bills may only be debated and not amended as, according to the Constitution, Parliament must still devise legislation for a procedure to amend Money Bills.
Legislative process In the Provincial Legislature
Schedule 5 of the Constitution lists the functional areas in which the provincial legislatures may only make laws. This includes provincial roads and traffic, liquor licensing, provincial planning and provincial sport. Members of the Executive Council (MEC), Members of the Provincial Legislature (MPL) or a Committee in the Provincial Legislature can introduce provincial bill. The Bill will be published in the Provincial Gazette, during which time the public has at least 14 days to comment on the Bill. When Money Bills and ordinary Bills are put before the Provincial Legislature, the following processes will unfold:
Only the MEC responsible for Finance is able to introduce a Money Bill in the Provincial Legislature. Money Bills are referred to the Committee of Finance for discussion for a maximum of seven working days.
After discussion, the Committee submits a report to the House.
The Committee is not allowed to propose any amendments to the Bill, as there is not yet legislation that allows this.
When an ordinary Bill is introduced in the Provincial Legislature, it will be referred to the relevant Standing Committee. The Standing Committee may invite interested parties to comment and make submissions. The Committee then considers the Bill and may propose amendments to it. After consideration by the Committee, a report with recommendations on the Bill is submitted to the House. A debate takes place on the Bill in the House and the MPLs vote. If there is a majority of votes in favour of the Bill, the Bill is passed. If there is no majority, the Bill is rejected.
Initiating A Bill
Only certain bodies can initiate Bills:
Ministers can initiate national Bills. MECs can initiate provincial Bills.
These are also known as Private Members' Bills. Affected departments and state organs must offer input, and Committees must be briefed by the MP or MPL on the Bill. Committees dealing with Private Members' Bills will first adopt a motion of desirabilty to determine whether the processing of the Bill can go ahead or not.
Committees can only introduce legislation if they receive permission from the National Assembly. Before they officially introduce the Bill, however, they must leave three weeks for a public participation process. During this time, they must publish the draft bill and the explanatory memorandum in the Government Gazette, enabling the public to comment and make submissions. The Committee must also consult with relevant state departments and seek advice from the JTM to classify the Bill. To introduce the Bill in the NA, the Committee must submit the Bill and memorandum to the Speaker of the NA.
How to Participate in the Legislative Process
The public can participate in law-making through a variety of public participation channels. For example, when a draft Bill is Gazetted, this is the first opportunity to voice your thoughts on the proposed Bill. This can be voiced from an individual standpoint, on behalf of a community or on behalf of an organisation. The public can also endorse the comments submitted by other civil society organisations by offering their names and signatures. A comment can be as brief as a sentence, address specific aspects, or respond to all aspects of a proposed Bill.
While written submissions prove to be useful, citizens also have the option to attend public hearings on a Bill. A public hearing is a formal meeting where those who have submitted written comment on the Bill, can be invited to make this comment in person and engage the Committee directly on the Bill.
People's Assembly encourages you to make your voice heard when a Bill is introduced that impacts you or your community. You do not need any special requirements to comment - it is your right to make your voice heard. Parliament is the forum where public voices must be considered when making laws.
[The Department of Justice and Constitutional Development: The Legislative Process]
[The South African Constitution: Chapter 4, Section 42-82]
[Educating & Training Unit: The Policy and Law Making Process]
[Parliamentary Monitoring Group: The Legislative Process]