Role of the South African Parliament in Promoting Constitutional Rights from 1994 to 2023: Challenges, Insights and Lessons Learnt

“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

Introduction

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[1] 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:

1. The Constitution of the Republic of South Africa Act, 1996[2]: This is the highest law of the country which outlines essential rights and principles that buttress the democracy, rule of law and human rights in South Africa.
2. The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000[3]: This is a law that forbids biased discrimination on the basis of several grounds, which comprise race, gender, sex, pregnancy, marital status, sexual orientation, age, disability, and religion.
3. The Labour Relations Act, 1995[4]: This is an act that controls the relationship between employers and employees. The act offers collective bargaining and dispute resolution mechanisms, which are meant to defend workers’ rights and promote social justice at the work place.
4. The Children’s Act, 2005^[5]: This act provides a comprehensive legal framework for the protection of the rights of children, including the right to a safe and nurturing environment, access to education and healthcare, and protection from abuse and neglect.
5. The Criminal Procedure Act, 1997[6]: This act sets out the rules and procedures for the investigation, prosecution, and adjudication of criminal offences in South Africa, ensuring that the criminal justice system operates in a fair and just manner.
6. The National Health Act (2003)^[7]: This legal framework clearly articulates the rights and responsibilities of patients, health care providers, and health institutions.
7. Protection of Personal Information Act (2013):[8] This is a critical statute in South Africa that targets the protection of the privacy of individuals. Consequently, it standardizes the processing of their individual information and governs the collection, use, storage, and sharing of personal information by both public and private entities.
8. National Minimum Wage Act (2018)^[9]: The statute establishes a national minimum wage which applies to all workers. The act excludes those who are covered by sectoral determinations or bargaining council agreements that set higher wages.

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:

• State Capture and Corruption: Parliament has played a significant role in exposing and addressing state capture and corruption in the country. Through parliamentary oversight mechanisms, such as inquiries and investigations, South African parliamentarians have uncovered corruption and malfeasance in government and made a clarion call for accountability and transparency in the management of public resources. This call led to the establishment of the Zondo Commission^[10].
• Gender-Based Violence: The South African Parliament has been making efforts to fight gender-based violence (GBV) through the use of its oversight and legislative functions to address the systemic failures that underwrite to GBV. Consequently, Parliament has encouraged actions to guard and empower women and girls, such as legislating The Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007[11]
• Land Reform: Land has been a contentious issue in South Africa, given the history of apartheid in the country. In seeking to redress the imbalances brought by apartheid when it comes to the land question, parliament has been influential in driving the process in this regard. Parliament has adopted legislation and established oversight mechanisms in a bid to warrant a land reform process that is a fair, equitable, and which is done is a transparent manner.
• Education: Since 1994, a number of South Africans have been struggling to access education and for some, one of the factors that has been contributing is rooted in the historical structures influenced by apartheid which has made them unable to access education. In a bid to promote access to education for all, Parliament has been playing a significant role in advocating for access to quality education for all South Africans. Important mechanisms include oversight and legislative functions in ensuring that education is made accessible, affordable, and of a high quality, predominantly for historically underprivileged societies.
• Health Care: The South African Parliament has been vigorously engaged in efforts to address the health care predicament in the country. Through its legislative and oversight functions, parliament has supported improved funding for health care, better control of health care facilities, and upgraded access to health care services for all South African citizens.

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.

1. Political fragmentation- The country has multiple political parties which are making it very difficult to build consensus on several issues and to pass legislation. Political fragmentation has also cascaded down into affecting major metros coalitions[12] which have been wobbly in numerous instances, leading to some ending before the end of an official term. This has further contributed to the lack of coherence in policy-making and implementation.
2. Corruption: Corruption is endemic in South Africa. It has become a persistent challenge and is slowly but surely spreading its tentacles into Parliament. Due to this spread, corruption is now also affecting this arm of government to hold government officials accountable for their actions. Consequently, corruption has also led to a loss of public trust in government institutions, according to a survey (see pie chart below).

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[1]

1. Socio-economic Inequality: South Africa is the world’s most unequal society. According to Webster (2019), ever since the end of apartheid, the Inequality Trends report shows that pockets of scarcity continue in South Africa’s former homelands. He further contends that in some communities, more than half of households still do not have access to piped water e.g. rural Eastern Cape and KwaZulu-Natal. The country also has the highest levels of income inequality across the globe. This has made it perplexing to warrant that all citizens enjoy their constitutional rights.
2. Resource Constraints: Parliament has often struggled in providing effective oversight of the executive as result of inadequate resources. Literature is awash with examples where the South African Parliament wriggled in providing effective oversight of the executive due to resource constraints. Notable examples include the Eskom Inquiry of 2018 where the Portfolio Committee on Public Enterprises failed to conduct an inquiry, due to inadequate finance for legal and forensic services. Second, the Social Grants Crisis of 2017 which saw Parliament delaying in conducting the inquiry ordered by the constitutional court due to resource constraints. Third, the State Capture Inquiry which has seen the Zondo Commission of Inquiry face substantial resource constraints needed to ensure that legal and forensic services are conducted.
3. Capacity Constraints: Capacity in the form of support staff that offer technical support to Parliamentarians is crucial if Parliament is to play its role well in promoting constitutional rights. Second, capacity in terms of having competent Parliamentarians who are knowledgeable about these rights is also crucial. In light of this, the Parliament of South Africa faces challenges in building its own institutional capacity. There are capacity constraints in terms of the oversight and accountability functions of Parliament. There is evidence which points to Parliament’s lack of capacity to monitor government performance effectively and to ensure its policies and programmes are implemented in accordance with constitutional principles. A clear example is Parliament’s inadequate Oversight of State-Owned Enterprises (SOEs), such as Eskom and South African Airways. In these two enterprises, it is abundantly clear that they have been inundated by corruption, mismanagement, and financial instability, and Parliament has been over time, heavily condemned for its lack of being proactive[1].

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[2] 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.

Conclusion

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.

[1] See https://journals.sagepub.com/doi/full/10.1177/0975087818805888

[2] See https://ddp.org.za/blog/parliamentary-program/

[1] See https://www.afrobarometer.org/online-data-analysis/

[1] See https://www.afrobarometer.org/online-data-analysis/

[1] See https://justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf

[2] See https://www.gov.za/documents/constitution-republic-south-africa-1996

[3] See https://www.gov.za/documents/promotion-equality-and-prevention-unfair-discrimination-act

[4] See https://www.gov.za/sites/default/files/gcis_document/201409/act66-1995labourrelations.pdf#:~:text=Labour%20Relations%20Act%2C%201995%20ACT%20To%20change%20the,bargaining%20at%20the%20workplace%20and%20at%20sectoral%20level%3B

[5] See https://www.gov.za/documents/childrens-act

[6]See https://www.justice.gov.za/legislation/acts/1997-105.pdf

[7] See https://www.gov.za/documents/national-health-act#:~:text=The%20National%20Health%20Act%2061%20of%202003%20intends%3A,local%20governments%20with%20regard%20to%20health%20services%3B%20and

[8] See https://www.gov.za/documents/protection-personal-information-act

[9] See https://www.gov.za/sites/default/files/gcis_document/201811/42060gon1303act9of2018.pdf

[10] See https://www.pinsentmasons.com/out-law/guides/introduction-the-zondo-commission-south-africa

[11] See https://www.gov.za/sites/default/files/gcis_document/201409/a32-070.pdf

[12] See https://businesstech.co.za/news/government/673501/south-africas-coalition-chaos-government-wants-a-new-plan-to-make-parties-work-together/