A guide to understanding Parliament: The parliamentary and legislative ecosystem and process in South Africa Law making, oversight and participation 18 July 2016 Abdul Waheed Patel Managing Director Wisahl Jappie Deputy Managing Director
Index Legisla(ve process and procedure Types of legisla(on provided for in the Cons(tu(on Parliamentary Commi:ees Key advocacy, lobbying and engagement opportuni(es
Legislative Process and Procedure
3 Organs of State Giving effect to legisla(on EXECUTIVE PARLIAMENT JUDICIARY / COURTS Formulates draft laws Writes, amends, adopts and passes final text President assents to and signs into law OR Verified Constitutionality and places on the Statute Sends Book back to Parliament
THE EXECUTIVE where it all starts Cabinet sets policy, formulated by the responsible Department Department formulates draq Bill under the authority vested with the responsible Minister Cabinet approves Bill Minister tables and introduces Bill in Parliament Signals Government s intent and objectives Draft policy must be approved by Cabinet Policy is published for comments. Department consults with interested and affected parties Calls for comment in the Government Gazette Department considers comments received Cabinet approves draft Bill Legal instrument to enable policy implementation to achieve Government s strategic objectives Sets out how Government intends to implement policy Consultation with interested and affected parties Calls for Comment in the Government Gazette by the responsible Minister Cabinet can set-up an Inter-Ministerial or Inter-Department Committee on the Bill The Cabinet-approved version of the Bill is published for notification in the Government Gazette by the responsible Minister Bill is certificated by State Law Advisor The Bill becomes Parliament s, as the National Legislative Authority
PARLIAMENT Legisla(ve Authority for crea(ng and amending laws Only Parliament through its two Houses (National Assembly and National Council of Provinces) has the Constitutional authority to create and amend laws Bill introduced in Parliament Na(onal Assembly considers and approves Bill Na(onal Council of Provinces considers and approves Bill Bill transmi:ed to the President for Assent and signing into law Leader of Government Business in Parliament (Dep. President) informs Speaker of Parliament Bill assessed for national and provincial implications Bill tagged by Joint Tagging Mechanism Bill numbered Speaker refers Bill to Committee Parliament determines procedure on the Bill Department briefs Committee Public hearings Committee deliberations Committee amends and revises Bill (Iterative Committee votes on Bill and adopts report on Bill Bill referred to National Assembly National Assembly votes on Bill Bill referred to NCOP Department briefs Committee Public hearings Committee deliberations Provincial hearings and votes on Bill Committee amends and revises Bill (Iterative) Committee votes on Bill NCOP votes on Bill Changes referred back to National Assembly Once signed into an Act and becomes law, Parliament plays an ongoing role in oversight of implementation of the Act by Government Numerous Parliamentary rules, protocols, procedures and processes are adhered to before a Bill becomes an Act of the Republic
THE EXECUTIVE: THE PRESIDENT Assents to Bill, by signing it into law making it an Act May refer back to Parliament on Constitutional, legal, technical, procedural or on grounds of being petitioned Parliament can only address President s particular areas of concern. Legislative procedural grounds i.e. Parliamentary process Bill referred back to Parliament President Cons(tu(onally obliged to consider Bill President s Decision Referral to Cons(tu(onal Court Effec(ve implementa(on announced by Minister No prescribed timeframes unless agreed to with Parliament (Bill can t lapse) Consults various parties: Cabinet Minister responsible Chief State Law Advisor Presidential Legal Advisor Leader of Government Business (Dep Pres) Parliamentary Counsellor Ruling party, including Parliamentary Caucus Signs Bill officially becomes an Act of Parliament and law Can proclaim effective date of implementation Doesn t sign Bill Constitutional affirmation requires Presidential assent Operational date announced by Minister in subsequent regulation Sometimes a transitional period is required to allow Government and the public to prepare for the Act to come into operation Drafting and issuing of Regulations May receive and consider further petitions on the Bill
JUDICIARY AND COURTS Determines Cons(tu(onality Section 165 of the Constitution the judicial authority of South Africa is vested in the courts, which are independent and subject to only the Constitution and the law.. All Bills signed and assented to into an Act, must be compliant with the Cons(tu(on Supreme Law of the land. All other laws must comply with it. Any interested and affected person may challenge the Constitutionality of a law Highest court in the land when it comes to the interpretation, protection and enforcement of the Constitution. Section 167(4) of the Constitution affords the Constitutional Court exclusive jurisdiction in deciding disputes about the powers and constitutional status of branches of government. Only the Constitutional Court may: decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; decide on the constitutionality of any parliamentary or provincial Bill; decide on the constitutionality of any amendment to the Constitution; and decide that parliament or the president has failed to fulfill a constitutional obligation. If the Constitution Court finds a law to be un-constitutional, it can either struck down or refer it back to Parliament to rectified on specific grounds and within defined timeframe.
Types of Legislation Provided for in the Constitution
Types of Legisla@on provided for in the Cons@tu@on SECTION 74 BILLS: Bills amending the Cons(tu(on SECTION 76 BILLS: Bills affec(ng provinces Introduced in either NA or NCOP Must be considered by both Houses SECTION 75 BILLS: Not affec(ng provinces Can only introduce in the NA Sent to NCOP once passed for concurrence SECTION 77 BILLS: Money Bills, Appropria(ons, taxes, levies, du(es Only Government can formulate and introduce Private Members Bills
How Sec@on 75 and 76 Bills work If the Bill contains issues that affect the provinces (s76 Bill) Members of the Select Commi:ee go to their own provinces to review the Bill. If the Bill contains issues that do not affect the provinces (s75 Bill) The NCOP considers the Bill and can either reject or propose changes that are recommended by the Select Commi:ee. Each Province may hold public hearings as they deem appropriate, to inform their provincial mandates Each Provincial legislature gives a provincial mandate that recommends changes or leaves it as it stands. Each member of the NCOP votes according to their province, not their party. If the NCOP accepts the Bill as referred by the NA without any changes, it can adopt and pass the Bill, for transmission to the President for assent. Provincial representa(ves report back to the NCOP Select Commi:ee on their provincial decisions. The NCOP Select Commi:ee must hear all provincial concerns and sugges(on arising from Provincial mandates. If the NCOP makes changes to the Bill, it will need to go back to the NA for considera(on. The NA must decide if it accepts the NCOP s recommenda(ons or not. Departmental, State and Parliamentary Legal Advisors afforded an opportunity to respond to provincial concerns and sugges(ons The Select Commi:ee deliberates on all of these inputs. The Select Commi:ee then nego(ates a final version of the Bill and sends a report of their decision and any suggested changes to the NCOP. The NCOP considers the report and then votes on the Bill. Each province gets one vote. If the NCOP makes changes to the Bill, it will need to go back to the NA for approval.
PARLIAMENTARY SYSTEM & MANDATE Matters in the national interest The NA is responsible for choosing the President, passing laws, ensuring that the members of the execu(ve perform their work properly and providing a forum where the representa(ves of the people can publicly debate issues. The Speaker is the head and spokesperson of the NA. EXOGENOUS FACTORS Government Policy Party Policy Na(onal Assembly Rules & Procedures Cons(tu(on Commi:ees Legisla(on Public Par(cipa(on Budge(ng Na(onal Council of Provinces (NCOP) Oversight & Accountability Mandate, Powers & Func(ons of Commi:ee Matters affecting Provinces The NCOP is also involved in the law making process and provides a forum for debate on issues affec(ng the provinces. Its main focus is to ensure that provincial interests are taken into account in the na(onal sphere of government. The Chairperson of the NCOP is the head and spokesperson.
Legisla(ve tagging and classifica(on The tagging mechanism is only ini(ated when the Bill is formerly introduced in Parliament as tagging and classifica(on of the legisla(on is a Parliamentary process. Once the Bill is introduced by the relevant Minister it is allocated a Bill number, which then ini(ates the tagging process. A Bill may be tagged a Sec(on 76 if certain sec(on(s) are deemed to affect Provinces in a substan(al and substan(ve measure. What cons(tutes a substan(al measure is not specifically defined but rather determined by the nature and extent to which sec(on(s) affect Provinces. Accordingly, one sec(on deemed to affect Provincial competencies may render the Bill a Sec(on 76 in its en(rety, which would mean that Provinces submit inputs on the en(rety of the Bill. All sec(ons of a Bill are read separately and in isola(on, during the tagging process, as it pertains to Provinces when determining whether or not it affects Provincial competencies.
Parliamentary Committees
Parliamentary Commi:ees Parliament has an extensive system of Commi:ees Conduct core business of Parliament Administer internal rules, processes and procedure CommiXee Type Amount Joint Commi:ees 4 Ad Hoc Commi:ees 4 Standing Commi:ees 6 Na(onal Assembly Porbolio Commi:ees 30 NCOP Select Commi:ees 13 Special Commi:ees (Mul( Party Women s Caucus) 1 TOTAL 58
Parliamentary Commi:ees: Func%ons and Powers Monitor and oversee work and budgets of government Hold government and agencies to account Consider and amend Bills, and may ini(ate Bills Consider private members legisla(ve proposals and special pe((ons Consider and ra(fy interna(onal trea(es and agreements Take care of domes(c parliamentary issues Enquire and make recommenda(ons about any aspect of the department, including its structure, func(oning and policy. Mee(ngs are open to the public, but may be closed for good reason Oversight, Public Hearings, Legisla(on, Workshops and Stakeholders Work of Commi:ees are not restricted to government Receive representa(ons or submissions from the public Power to summon any person to give evidence or produce documents May inves(gate any ma:er of public interest within their responsibility Examine specific areas of public life or ma:ers of public interest
Parliamentary Commi:ees Mirroring Cabinet Clusters
Parliamentary Commi:ees House Chairpersons Management CommiXee Party caucuses Opposi@on poli@cal par@es Ministerial and Department Parliamentary Liaison Officers Levers of influence Party study groups Party caucus staff Minister and Department officials responsible Independent Technical Specialists Parliamentary Legal Advisor CommiXee Researcher and Content Advisor
Key advocacy, lobbying and engagement opportunities
Key advocacy, lobbying and engagement opportuni(es Level of Ac@vity Engagement and outreach focal points Execu(ve ac(vity Tabling in Parliament by the Minister Briefings by the Department to Commi:ees Ministerial Parliamentary Liaisons and Advisors Parliamentary Counsellor to the President Office of Leader of Government Business State Law Advisors Presiden(al assent In-Commi:ee Commi:ee hearings Clause by clause delibera(ons and amendments Adop(on and resolu(on by Commi:ee Commi:ee chairperson and whips Engaging technical sub-commi:ees Parliamentary Administra(on Commi:ee secretariat, researchers and content advisors Parliamentary legal advisors House silng Member statements during House debates Ministerial cluster Ques(ons and Answers Party poli(cal Party poli(cal study groups and party poli(cal researchers Opposi(on shadow ministers and spokespersons Alterna(ve private members legisla(ve proposals Media Parliamentary Press Gallery Associa(on
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