“The Constitution is the people’s promise of a better life. The South African Parliament has a constitutional obligation to deliver on that promise by ensuring that the government respects, protects, promotes and fulfils the rights enshrined in the Constitution.”- Advocate Tembeka Ngcukaitobi
By: Nyasha Mcbride Mpani
In 1994, South Africa became a democratic nation and this resulted in an establishment of the first democratic Parliament. The establishment of this important arm of the government was to ensure that it advances the protection and promotion of the country’s constitutional rights. In the modern world, South Africa’s bill of rights/constitution is amongst the leading constitutions as it warranties a plethora of rights which range from right to dignity, freedom of expression, access to healthcare, equality, among others. This paper examines the role of the South African Parliament in promoting constitutional rights over the past three decades, the challenges it has faced, and the insights and lessons learnt.
The Role of the South African Parliament in Promoting Constitutional Rights
The Constitution of South Africa, Chapter 4 details the role of the country’s National Assembly and the National Council of Provinces. According to Chapter 4, Parliament has been given the prerogative to ensure that all laws and policies are in line with the country’s constitutional provisions and principles. Among the three major roles that the South African Parliament has to perform, the most important role of the three is that of being the legislative body. This role mandates the National Assembly to create and amend the country’s laws. According to section 44 of the South African Constitution (1996), the National Assembly has the power to initiate and pass legislation. Consequently, Parliament is mandated to not just pass legislation but pass legislation that supports and protects constitutional rights. Since 1994, Parliament has passed numerous laws which have had a substantial influence on the realization of constitutional rights in the country. Several laws that stand out include:
It should be noted that the above ground breaking laws have been tangential in encouraging and guarding human rights, addressing historical inequalities, and progressing the realization of constitutional rights in South Africa.
Moreover, another important role of Parliament has been to hold the government responsible for putting into practice the policies and laws that stimulate constitutional rights. Parliament has innumerable instruments for holding the executive accountable. These mechanisms comprise Parliament question time, Parliamentary debates, oversight committees, and public hearings. Through these instruments, the South African Parliament has been able to ascertain several areas where the Executive has dismally failed to promote and protect constitutional rights and to take corrective action. Some of the notable ground-breaking areas in which the South African Parliament has been able to assert the executive’s failure to promote and protect constitutional rights and take corrective action are:
Challenges Faced by the South African Parliament in Promoting Constitutional Rights
Despite the significant progress made in promoting and protecting constitutional rights since 1994, the South African Parliament has faced a plethora of challenges over the past three decades. These challenges include political fragmentation, corruption, socio-economic inequality, resource constraints and capacity constraints.
Respondents were asked: How many of the following people do you think are involved in corruption, or haven’t you heard enough about them to say? Members of [Parliament]Source: Afrobarometer (R8 2019/2021) South Africa
Insights and Lessons Learnt
Despite the challenges faced, the South African Parliament has made significant progress in promoting and protecting constitutional rights. Some of the insights and lessons learnt include the need for increased capacity-building for Members of Parliament to enable them to perform their oversight functions effectively. Organisations, such as the Democracy Development Programme (DDP) have started working with Parliamentarians through their Parliamentary Programme Unit in a bid to enhance the capacity of these Parliamentarians. These efforts need to be commended as it is the first correct step in addressing the challenge. Furthermore, increased collaboration, co-operation, partnership between Parliament and civil society organizations that endeavours to promote and protect constitutional rights is much needed. Furthermore, there is a need for greater public involvement in the legislative procedure to guarantee that laws are receptive to citizens’ demands. While it is commended that the South African Parliament has made necessary strides to increase public participation through public hearings and consultations, more needs to be done so that citizens are enthusiastically involved in the legislative process.
The South African Parliament has played a crucial role in promoting and protecting constitutional rights since 1994. Despite the challenges faced, Parliament has made significant progress in passing laws that promote constitutional rights and holding the government accountable for implementing these laws. There is a need to continue building the capacity of Parliament, increasing public participation in the legislative process, and strengthening collaboration between Parliament and civil society organizations to promote and protect these constitutional rights.
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