Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC) (17 August 2006)

I. Introduction

This case concerns an important question relating to the role of the public in the law-making process. This issue lies at the heart of our constitutional democracy. The Court is required to answer three related questions. The first question concerns the nature and the scope of the constitutional obligation of a legislative organ of the state to facilitate public involvement in its legislative processes and those of its committees and the consequences of the failure to comply with that obligation. The second question concerns the extent to which this Court may interfere in the processes of a legislative body in order to enforce the obligation to facilitate public involvement in law-making processes. In particular, whether it is competent for this Court to interfere during the legislative process before a parliamentary or provincial bill is signed into law. The third question concerns the issue whether this Court is the only court that may consider the questions raised in this case.

These issues arise out of a constitutional complaint brought directly to this Court by Doctors for Life International, the applicant. Its complaint is that the National Council of Provinces (“NCOP”), in passing certain health bills, failed to invite written submissions and conduct public hearings on these Bills as required by its duty to facilitate public involvement in its legislative processes and those of its committees.

Following a brief review of the facts, I will identify the issues for determination in this case.

II. Factual background

Parliament has enacted four health statutes, namely, the Choice on Termination of Pregnancy Amendment Act 38 of 2004 (“the CTOP Amendment Act”); the Sterilisation Amendment Act 3 of 2005; the Traditional Health Practitioners Act 35 of 2004 (“the THP Act”); and the Dental Technicians Amendment Act 24 of 2004. The constitutional challenge relates to these statutes, which I shall collectively call the health legislation. The applicant’s complaint is that during the legislative process leading to the enactment of these statutes, the NCOP and the provincial legislatures did not comply with their constitutional obligations to facilitate public involvement in their legislative processes as required by the provisions of sections 72(1)(a) and 118(1)(a) of the Constitution, respectively. In terms of section 72(1)(a), the NCOP “must . . . facilitate public involvement in [its] legislative and other processes . . . and [those of] its committees.” Section 118(1)(a) contains a similar provision relating to a provincial legislature.

The applicant accepts that the National Assembly has fulfilled its constitutional obligation to facilitate public involvement in connection with the health legislation. This, the applicant says, was done by the National Assembly by inviting members of the public to make written submissions to the National Portfolio Committee on Health and also by holding public hearings on the legislation. That process, the applicant maintains, complied with section 59(1)(a) of the Constitution.^¹ The applicant alleges that the NCOP and the various provincial legislatures were likewise required to invite written submissions and hold public hearings on the health legislation. This is what the duty to facilitate public involvement required of them, the applicant maintains.

The constitutional challenge was initially directed at the Speaker of the National Assembly and the Chairperson of the NCOP only. The Speakers of the nine provincial legislatures and the Minister of Health were subsequently joined as further respondents because of their interest in the issues raised in these proceedings.^² I shall refer to all respondents collectively as the respondents, unless the context requires otherwise.

The respondents deny the charge by the applicant. They maintain that both the NCOP and the various provincial legislatures complied with the duty to facilitate public involvement in their legislative processes. They also take issue with the scope of the duty to facilitate public involvement as asserted by the applicant. While conceding that the duty to facilitate public involvement requires public participation in the law-making process, they contend that what is required is the opportunity to make either written or oral submissions at some point in the national legislative process.

The applicant has approached this Court directly. It alleges that this Court is the only court that has jurisdiction over the present dispute because it is one which concerns the question whether Parliament has fulfilled its constitutional obligations. The jurisdiction of this Court to consider such disputes is conferred by section 167(4)(e) of the Constitution. That section provides that “[o]nly the Constitutional Court may . . . decide that Parliament . . . has failed to fulfil a constitutional obligation”. The respondents did not contest any of this. There is therefore no dispute between the parties as to whether this Court has exclusive jurisdiction in this matter under section 167(4)(e).

But the question whether this Court has exclusive jurisdiction in this matter is too important to be resolved by concession.

When the applicant launched the present proceedings it was under the mistaken belief that all the health legislation was still in bill form. But, as it turned out, all of the legislation except the Sterilisation Amendment Act had been promulgated when these proceedings were launched on 25 February 2005.^³ This fact was readily ascertainable all along. The challenge relating to the Sterilisation Amendment Act would have required this Court to intervene during the legislative process. This raised the question of the competence of this Court to intervene in the legislative process. Given the importance of this question, the Chief Justice placed it squarely on our agenda by issuing directions.^⁴ The parties were thus invited to submit written argument on the question, and it was fully debated.

III. Issues presented

The issues that will be considered in this judgment are therefore these:

(a) Does this Court have exclusive jurisdiction over the present dispute under section 167(4)(e) of the Constitution?

(b) Is it competent under our constitutional order for declaratory relief to be granted by a court in respect of the proceedings of Parliament?

(c) What is the nature and the scope of the duty to facilitate public involvement comprehended in sections 72(1)(a) and 118(1)(a) of the Constitution?

(d) Did the NCOP and the provincial legislatures comply with their constitutional obligations to facilitate public involvement as contemplated in section 72(1)(a) and section 118(1)(a)?

(e) If the process followed by the NCOP and the provincial legislatures fell short of that required by the Constitution, what is the appropriate relief?

I now turn to consider these issues.

IV. Does this Court have exclusive jurisdiction over the present dispute?

Whether the applicant is entitled to come directly to this Court in regard to its complaint against the NCOP depends on whether that complaint falls under section 167(4)(e) of the Constitution. The contention that this Court has exclusive jurisdiction under section 167(4)(e) to decide the present dispute rests on two principal propositions: first, section 72(1)(a) imposes an obligation on the NCOP to facilitate public involvement in its legislative processes and those of its committees; and second, the obligation imposed by section 72(1)(a) is of a kind contemplated in section 167(4)(e). If both of these propositions are sound in law, the applicant is entitled to come directly to this Court.

The first of these propositions, namely, that the provisions of section 72(1)(a) impose an obligation, is correct. Section 72(1)(a) provides that the NCOP “must . . . facilitate public involvement in [its] legislative and other processes and [those of] its committees”.^⁵ The use of the word “must” in this context denotes an obligation. It is plain from the wording of section 72(1)(a) that it imposes an obligation to facilitate public involvement. Considering the provisions of section 59(1)(a), the National Assembly equivalent of section 72(1)(a), the Supreme Court of Appeal in King and Others v Attorneys Fidelity Fund Board of Control and Another,^⁶ held that the section imposes an obligation on Parliament to facilitate public involvement in its legislative processes.^⁷ This holding is plainly correct. The conclusion that section 72(1)(a) imposes an obligation on the NCOP to facilitate public involvement in its legislative processes leads to the second proposition, namely, that the obligation to facilitate public participation is the kind of obligation contemplated in section 167(4)(e).

The merits of the second proposition must be considered at some length. It raises the question of the proper meaning of the phrase “a constitutional obligation” in section 167(4)(e). This question is difficult to resolve. Section 167(4)(e) confers exclusive jurisdiction on this Court to decide disputes concerning a failure by Parliament or the President to fulfil a constitutional obligation. This provision must be construed in the light of the powers of the Supreme Court of Appeal and the High Courts to make orders “concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President”.^⁸ These are very wide powers indeed.

The provisions of section 172(2)(a) contemplate that disputes concerning the constitutional validity of a statute or conduct of the President will be considered, in the first instance, by the High Courts or the Supreme Court of Appeal, which are given the power to declare any law or conduct that is inconsistent with the Constitution invalid, subject to confirmation by this Court.^⁹ The difficulty is that a statute may be invalid for at least two reasons. It may be invalid because its provisions are in conflict with a right in the Bill of Rights. Or it may be invalid because it was adopted in a manner that is inconsistent with the provisions of the Constitution. What compounds the difficulty is that in a constitutional state like ours, where the Constitution is supreme, the Constitution imposes certain obligations on the exercise of legislative authority.

Consider, for example, section 7(2) of the Constitution, which provides that “[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights.” This provision no doubt imposes an obligation on the state to respect, protect, promote and fulfil the rights in the Bill of Rights. But it can hardly be suggested that this Court has exclusive jurisdiction to decide the validity of a statute that violates those rights because in enacting that statute, Parliament has failed to fulfil its constitutional obligation to respect, protect, promote and fulfil rights in the Bill of Rights. Were this to be so, it would undermine the role of other courts. In fact it would be contrary to section 172(2)(a), which contemplates that the Supreme Court of Appeal and the High Courts have the jurisdiction to consider the validity of an Act of Parliament. The Supreme Court of Appeal or a High Court would have jurisdiction under section 172(2)(a) to consider the constitutional validity of the impugned statute.

In the case of a law that infringes a right in the Bill of Rights, the primary source of the dispute is the breach of a right. This dispute flows directly from the infringement of a right in the Bill of Rights. Although, inevitably this means that Parliament has failed to comply with its constitutional obligation, this is not an obligation contemplated in section 167(4)(e). It concerns the validity of the impugned law and not the failure to fulfil an obligation. Sections 167(5) and 172(2)(a) of the Constitution contemplate that such disputes will be considered in the first instance by the High Courts, which are given the power to declare laws invalid, subject to confirmation by this Court. In doing so the High Court would not be deciding whether Parliament has failed to fulfil an obligation, but only whether the statute is consistent with the Bill of Rights.

What all of this points to is that the phrase “a constitutional obligation” in section 167(4)(e) should be given a narrow meaning. If the phrase is construed as applying to all questions concerning the constitutional validity of Acts of Parliament, it would be in conflict with the powers of the Supreme Court of Appeal and the High Courts to make orders concerning the validity of Acts of Parliament.

In President of the Republic of South Africa and Others v South African Rugby Football Union and Others (“SARFU 1”),^¹⁰ this Court, in the context of the conduct of the President, expressed the view that the words “fulfil a constitutional obligation” in section 167(4)(e) should be given a narrow meaning because a broader meaning would result in a conflict with section 172(1)(a) which empowers the Supreme Court of Appeal and the High Courts to make orders concerning the constitutional validity of the conduct of the President.^¹¹ While finding it unnecessary to define the phrase “fulfil a constitutional obligation,” the Court expressed the view that “[i]t may depend on the facts and the precise nature of the challenges to the conduct of the President”.^¹² In my view, there is no reason why this should not apply to the phrase as it relates to Parliament.

In King,^¹³ the Supreme Court of Appeal had to consider whether it had jurisdiction to decide a constitutional challenge to a statute where the challenge was based on the alleged failure by the National Assembly to facilitate public involvement in its legislative and other processes as envisaged by section 59(1)(a) of the Constitution.^¹⁴ The Supreme Court of Appeal concluded that neither it nor the High Court has jurisdiction to consider a constitutional challenge to the validity of a statute where the challenge is based on the alleged failure by Parliament to fulfil an obligation envisaged in section 59(1)(a) of the Constitution.^¹⁵ The basic reasoning of the Supreme Court of Appeal was that the question whether Parliament has fulfilled its obligation to facilitate public involvement is “pre-eminently a ‘crucial political’ question, and section 167(4)(e) reserves it for only the Constitutional Court to make.”^¹⁶ I agree with this reasoning and conclusion.

Section 167(4)(e) must be construed purposively and consistently with the nature of the jurisdiction of this Court in our constitutional democracy. This Court occupies a special place in our constitutional order. It is the highest court on constitutional matters and is the ultimate guardian of our Constitution and its values.^¹⁷ As this Court pointed out in SARFU 1, it was envisaged that this Court would be called upon “to adjudicate finally in respect of issues which would inevitably have important political consequences.”^¹⁸ Consistent with this role, section 167(4) confers exclusive jurisdiction on this Court in a number of crucial political areas; it is given the power to decide disputes between organs of state in the national or provincial sphere,^¹⁹ the constitutionality of any parliamentary or provincial bill,^²⁰ constitutional challenges brought by members of the National Assembly or the provincial legislatures,^²¹ the constitutionality of any amendment to the Constitution,^²² whether Parliament or the President has failed to fulfil a constitutional obligation^²³ and whether to certify a provincial constitution.^²⁴

The purpose of giving this Court exclusive jurisdiction to decide issues that have important political consequences is “to preserve the comity between the judicial branch of government” and the other branches of government “by ensuring that only the highest court in constitutional matters intrudes into the domain” of the other branches of government.^²⁵ And thus while vesting in the judiciary the power to declare statutes and the conduct of the highest organs of state inconsistent with the Constitution and thus invalid, the Constitution “entrusts to this Court the duty of supervising the exercise of this power and requires it to consider every case in which an order of invalidity has been made, to decide whether or not this has been correctly done.”^²⁶

The principle underlying the exclusive jurisdiction of this Court under section 167(4) is that disputes that involve important questions that relate to the sensitive areas of separation of powers must be decided by this Court only. Therefore, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within section 167(4). It follows that where a dispute will require a court to decide a crucial political question and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of this Court.

It seems to me therefore that a distinction should be drawn between constitutional provisions that impose obligations that are readily ascertainable and are unlikely to give rise to disputes, on the one hand, and those provisions which impose the primary obligation on Parliament to determine what is required of it, on the other. In the case of the former, a determination whether those obligations have been fulfilled does not call upon a court to pronounce upon a sensitive aspect of the separation of powers. An example of such a provision that comes to mind is a provision that requires statutes to be passed by a specified majority. The criteria set out are clear, and a failure to comply with them would lead to invalidity. When a court decides whether these obligations have been complied with, it does not infringe upon the principle of the separation of powers. It simply decides the formal question whether there was, for example, the two-thirds majority required to pass the legislation.

By contrast, where the obligation requires Parliament to determine in the first place what is necessary to fulfil its obligation, a review by a court whether that obligation has been fulfilled, trenches on the autonomy of Parliament to regulate its own affairs and thus the principle of separation of powers. This is precisely what the obligation comprehended in section 72(1)(a) does. While it imposes a primary obligation on Parliament to facilitate public involvement in its legislative and other processes, including those of its committees, it does not tell Parliament how to facilitate public involvement but leaves it to Parliament to determine what is required of it in this regard. A review by a court of whether Parliament has complied with its obligation under section 72(1)(a) calls upon a court to intrude into the domain of a principal legislative organ of the state. Under our Constitution, this intrusion is reserved for this Court only.

A construction of section 167(4)(e) which gives this Court exclusive jurisdiction to decide whether Parliament has complied with its constitutional obligation to facilitate public involvement in its legislative processes is therefore consistent with the principles underlying the exclusive jurisdiction of this Court. An order declaring that Parliament has failed to fulfil its constitutional obligation to facilitate public involvement in its legislative process and directing Parliament to comply with that obligation constitutes judicial intrusion into the domain of the principle legislative organ of the state. Such an order will inevitably have important political consequences. Only this Court has this power.

The question whether Parliament has fulfilled its obligation under section 72(1)(a) therefore requires this Court to decide a crucial separation of powers question and is manifestly within the exclusive jurisdiction of this Court under section 167(4)(e) of the Constitution.

Before leaving this topic, there is one matter to which I must refer. The complaint is directed at the NCOP and not at the National Assembly. In terms of section 42(1) of the Constitution, Parliament consists of the National Assembly and the NCOP. The national legislative authority vests in Parliament.^²⁷ These democratic institutions represent different interests in the law-making process. The National Assembly represents “the people . . . to ensure government by the people”.^²⁸ The NCOP “represents the provinces to ensure that provincial interests are taken into account” in the legislative process.^²⁹ Both must therefore participate in the law-making process and act together in making law to ensure that the interests they represent are taken into consideration in the law-making process. If either of these democratic institutions fails to fulfil its constitutional obligation in relation to a bill, the result is that Parliament has failed to fulfil its obligation.

I am therefore satisfied that the question whether the NCOP has failed to facilitate public involvement in its legislative processes concerns a dispute over whether Parliament has fulfilled a constitutional obligation as contemplated in section 167(4)(e). Only this Court has the jurisdiction to decide such a dispute.

What falls to be considered next is whether it is competent under our constitutional order for declaratory relief to be granted by this Court in respect of the proceedings of Parliament.

V. Is it competent for this Court to grant declaratory relief in respect of proceedings of Parliament?

Introduction

The obligation of Parliament to facilitate public involvement in its legislative and other processes, including those of its committees, raises the question of the competence of this Court to grant relief in respect of the proceedings of Parliament. The enforcement of the obligation to facilitate public involvement in the legislative processes of Parliament invariably requires this Court to interfere with the autonomy of the principal legislative organ of the state. This interference infringes upon the principle of the separation of powers. Yet, as will appear later in this judgment, the enforcement of the obligation to facilitate public involvement in the law-making process is crucial to our constitutional democracy.

In the light of this, it is important to resolve the question when this Court can and should intervene to enforce the obligation to facilitate public involvement in the law-making process. Apart from this, as pointed out earlier, when these proceedings were launched on 25 February 2005, the Sterilisation Amendment Act was still in its bill form. Parliament had passed the Bill but it had not yet been signed by the President. It is therefore necessary to consider whether this Court had jurisdiction to consider the constitutional challenge relating to parliamentary proceedings in connection with the Sterilisation Amendment Act at the time when the constitutional challenge was launched.

It was against this background that the parties were called upon to submit argument on whether it is competent for this Court under our constitutional order to grant declaratory relief in respect of the proceedings of Parliament:

(a) before Parliament has concluded its deliberations on a bill;

after Parliament has passed the bill, but before the bill has been signed by the President; or
after it has been signed by the President but before it has been brought into force.^³⁰

The national legislative process is set out in sections 73 to 82 of the Constitution. Broadly speaking it commences with the introduction of a bill in the National Assembly, consideration and passing of the bill by the National Assembly, consideration and passing of the bill by the NCOP, and consideration and signing of the bill by the President. The specific question presented in this case is whether this Court has jurisdiction to intervene in this legislative process and to grant declaratory relief to the effect that Parliament has failed to facilitate public involvement in relation to a bill.

Parliament has a very special role to play in our constitutional democracy – it is the principal legislative organ of the state. With due regard to that role, it must be free to carry out its functions without interference. To this extent, it has the power to “determine and control its internal arrangements, proceedings and procedures”.^³¹ The business of Parliament might well be stalled while the question of what relief should be granted is argued out in the courts. Indeed the parliamentary process would be paralysed if Parliament were to spend its time defending its legislative process in the courts. This would undermine one of the essential features of our democracy: the separation of powers.

The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings. This principle is not simply an abstract notion; it is reflected in the very structure of our government. The structure of the provisions entrusting and separating powers between the legislative, executive and judicial branches reflects the concept of separation of powers. The principle “has important consequences for the way in which and the institutions by which power can be exercised.”^³² Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.

But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament “must act in accordance with, and within the limits of, the Constitution”,^³³ and the supremacy of the Constitution requires that “the obligations imposed by it must be fulfilled.”^³⁴ Courts are required by the Constitution “to ensure that all branches of government act within the law” and fulfil their constitutional obligations.^³⁵ This Court “has been given the responsibility of being the ultimate guardian of the Constitution and its values.”^³⁶ Section 167(4)(e), in particular, entrusts this Court with the power to ensure that Parliament fulfils its constitutional obligations. This section gives meaning to the supremacy clause, which requires that “the obligations imposed by [the Constitution] must be fulfilled.”^³⁷ It would therefore require clear language of the Constitution to deprive this Court of its jurisdiction to enforce the Constitution.

The question is whether the Constitution precludes this Court from intervening during any or all of the stages of the law-making process in order to enforce the obligation to facilitate public involvement.

There are three identifiable stages in the law-making process, and these are foreshadowed in the questions on which the parties were called upon to submit argument: first, the deliberative stage, when Parliament is deliberating on a bill before passing it; second, the Presidential stage, that is, after the bill has been passed by Parliament but while it is under consideration by the President; and third, the period after the President has signed the bill into law but before the enacted law comes into force. The applicants contended that section 167(4)(e) empowers this Court to intervene during all three stages.

What must be emphasised at the outset is that in this case we are concerned with a constitutional challenge based on an alleged failure to facilitate public involvement in the legislative processes of Parliament as required by section 72(1)(a) of the Constitution. The questions posed by the Chief Justice must therefore be answered with reference to this specific challenge to the extent required by the facts of this case. It will be convenient to consider, first, whether this Court can interfere with the legislative process when the bill is before the President; second, after the President has signed the bill into law but before it comes into force; and third, during the deliberative process.

Is it competent for this Court to grant declaratory relief after a bill has been passed by Parliament but before it is signed by the President?

The express provision of the Constitution that is relevant in this context and which limits the jurisdiction of this Court is section 167(4)(b). That section provides:

“(4) Only the Constitutional Court may ─

. . .

(b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121”.^³⁸

Section 167(4)(b) confers exclusive jurisdiction on this Court to decide the constitutionality of any parliamentary or provincial bill. However, this power is expressly limited in that this Court “may do so only in the circumstances anticipated in section 79 or 121”. Thus while the section confers exclusive jurisdiction on this Court to consider the constitutional validity of a national or provincial bill, this power is expressly limited to a challenge brought by the President or a Premier and in circumstances contemplated in section 79 or 121 of the Constitution.^³⁹ The provisions of these sections are too clear to admit of any other construction. In the UDM case, this Court held that the Constitution “contains clear and express provisions which preclude any court from considering the constitutionality of a Bill save in the limited circumstances referred to in sections 79 and 121 of the Constitution, respectively.”^⁴⁰

Counsel for the applicant nevertheless submitted that it is competent for this Court to grant relief after Parliament has passed a bill but before the President has signed the bill. To surmount the hurdle presented by the limited power of this Court to decide the constitutionality of a parliamentary or provincial bill under section 167(4)(b), counsel for the applicant advanced two propositions. First, there was a conflict between the provisions of sub-sections 167(4)(b) and 167(4)(e). This conflict arises because section 167(4)(b) permits only the President or the Premier to approach this Court in respect of a passed bill. By contrast, it was submitted, section 167(4)(e) is concerned with failure to fulfil a constitutional obligation, and it imposes no restriction on the identity of the applicant or the stage of the challenge. Second, this conflict, which is more apparent than real, can be removed by construing the word “constitutionality” in section 167(4)(b) as limited to the contents of the bill and not to the procedure required by the Constitution.

But the narrow meaning that counsel sought to assign to the word “constitutionality” in section 167(4)(b) is neither supported by the plain meaning of that word nor by the constitutional scheme of which it is part. The submission by counsel ignores the provisions of section 79 of the Constitution to which section 167(4)(b) refers. The provisions of section 167(4)(b) must be read with section 79 in order to determine the scope of the jurisdiction of this Court to decide the constitutionality of a bill. It is plain from the provisions of section 79(3) that the President has the authority to raise the constitutionality of a bill on both procedural and substantive grounds. It provides that the NCOP must participate in the reconsideration of the bill “if the President’s reservations about the constitutionality of the Bill relate to a procedural matter that involves the [NCOP]”.^⁴¹ Nothing could be clearer. The President may raise as the source of his or her reservation a procedural matter.

It is necessary to stress here that a complaint relating to failure by Parliament to facilitate public involvement in its legislative processes after Parliament has passed the bill will invariably require a court to consider the validity of the resulting bill. If the Court should find that Parliament has not fulfilled its obligation to facilitate public involvement in its legislative processes, the Court will be obliged under section 172(1)(a) to declare that the conduct of Parliament is inconsistent with the Constitution and therefore invalid. This would have an impact on the constitutionality of the bill that is a product of that process. The purpose and effect of litigation that is brought in relation to a bill after it has been passed by Parliament is therefore to render the bill passed by Parliament invalid. This is precluded by the express provisions of section 167(4)(b).

The question that falls to be determined is whether the provisions of section 167(4)(e) can be invoked while the bill is under consideration by the President. It is here that the interrelation between the provisions of section 167(4)(e) and section 167(4)(b) becomes relevant. There are two principles of interpretation that are relevant in this regard.

The first is that where there are provisions in the Constitution that appear to be in conflict with each other, the proper approach is to examine them to ascertain whether they can reasonably be reconciled.^⁴² And they must be construed in a manner that gives full effect to each. Provisions in the Constitution should not be construed in a manner that results in them being in conflict with each other. Rather, they should be construed in a manner that harmonises them. In S v Rens,^⁴³ this Court held that “[i]t was not to be assumed that provisions in the same constitution are contradictory” and that “[t]he two provisions ought, if possible, to be construed in such a way as to harmonise with one another.”^⁴⁴

The other principle of construction to keep in mind in this regard is that where there are two provisions in the Constitution dealing with the same subject, with one provision being general and the other being specific, the general provision must ordinarily yield to the specific provision. In Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re Certification of the Constitution of the Province of KwaZulu-Natal, 1996,^⁴⁵ this Court held that a “general provision . . . would not normally prevail over the specific and unambiguous provisions”.^⁴⁶ The specific provision must be construed as limiting the scope of the application of the more general provision. Therefore, if a general provision is capable of more than one interpretation and one of the interpretations results in that provision applying to a special field which is dealt with by a special provision, in the absence of clear language to the contrary, the special provision must prevail should there be a conflict.

The question then is whether the provisions of sections 167(4)(b) and 167(4)(e) are capable of being reconciled.

Although both these provisions deal with the exclusive jurisdiction of this Court, each deals with a specific subject matter. The subject matter of section 167(4)(e) is “a constitutional obligation”. It confers jurisdiction on this Court to decide whether Parliament or the President has failed to fulfil a constitutional obligation. It regulates constitutional challenges that seek to enforce the fulfilment of constitutional obligations and contains no restrictions as to the person or the stage at which a challenge may be launched. By contrast, section 167(4)(b) confers exclusive jurisdiction on this Court to decide the constitutional validity of any parliamentary or provincial bill but expressly limits such jurisdiction to the specific instances set out in sections 79 and 121 of the Constitution. The provisions of section 167(4)(b) therefore specifically deal with challenges to a bill that has been passed by Parliament or a provincial legislature.

Now I think it can fairly be accepted that section 167(4)(e) covers a wider field in that a constitutional obligation may relate to the process that Parliament is required to follow before passing a bill, such as the obligation to facilitate public involvement in its processes as contended by the applicants. By contrast, the provisions of section 167(4)(b) are specifically limited to constitutional challenges to parliamentary or provincial bills. It seems to me therefore that a constitutional challenge under section 167(4)(e) whose purpose and effect is to render invalid a bill will be barred by section 167(4)(b). In this sense, the scope of the provisions of section 167(4)(e) is circumscribed by the specific provisions of section 167(4)(b), which limit a constitutional challenge to a bill to the more specific circumstances contemplated in section 79 or 121. It follows therefore that the provisions of section 167(4)(b) and section 167(4)(e) can be harmonised by understanding the provisions of section 167(4)(b) as limiting the scope of section 167(4)(e) when the purpose and effect of a constitutional challenge under section 167(4)(e) is to render a bill invalid.

This construction of section 167(4)(e) is consistent with the scheme of the Constitution. This scheme entrusts the President with the power to raise with this Court the constitutionality of a parliamentary bill. The decision to provide the President with the power to decline to assent to a bill and to challenge its constitutionality was based on the conviction that the power to make laws must be carefully circumscribed. It is a power to be shared by the National Assembly, the NCOP, the President and the provinces. The President’s role in the law-making process reflects a careful effort to ensure that the law-making process is kept under check consistent with the principle of checks and balances. The scheme is founded on the trust that our system has for the role of the President, namely, the responsibility it vests in the President to “uphold, defend and respect the Constitution as the supreme law”,^⁴⁷ and thus to ensure that laws that he or she assents to and signs, conform to the Constitution.

In addition, the constitutional scheme contemplates that challenges to the constitutional validity of a bill passed by Parliament must await the completion of the legislative process. During this process, the rights of the public are safeguarded by the President who has the authority to challenge the constitutionality of a bill consistent with his or her duty to uphold, defend and respect the Constitution. Once the process is complete, the public and interested groups may challenge the resulting statute. This scheme seeks to ensure that judicial intervention in the law-making process is kept to the minimum; hence it is limited to challenges by the President.

Counsel for the applicant contended that by its nature the duty to facilitate public involvement in the law-making process requires that it be enforced there and then. Its delay is its denial. The argument does not take sufficient account of the role of Parliament and the President in the law-making process. As pointed out earlier, the President has a constitutional duty to uphold, defend and respect the Constitution. The role of the President in the law-making process is to guard against unconstitutional legislation. To this end, the President is given the power to challenge the constitutionality of the bill. The President represents the people in this process. The members of the National Assembly perform a similar task and have a similar obligation. Thus during the entire process, the rights of the public are protected. The public can always exercise their rights once the legislative process is completed. If Parliament and the President allow an unconstitutional law to pass through, they run the risk of having the law set aside and the law-making process commence afresh at great cost. The rights of the public are therefore delayed while the political process is underway. They are not taken away.

I conclude therefore that after Parliament has passed a bill and before the President has assented to and signed the bill, it is not competent for this Court to grant any relief in relation to the bill, save at the instance of the President and in the limited circumstances contemplated in section 79.

In its notice of motion the applicant sought an order declaring that the conduct of the NCOP and the provincial legislatures was invalid and any other consequential relief. The effect of a successful constitutional challenge to the Sterilisation Amendment Bill would be to render that Bill invalid. This Court would have been precluded by the provisions of section 167(4)(b) read with section 79 from making an order declaring the Sterilisation Amendment Bill invalid. The fact that the Bill has since been enacted into law and this Court has jurisdiction to pronounce on the constitutional validity of the Sterilisation Amendment Act matters not. The question whether this Court has jurisdiction must be determined as at the time when the present proceedings were instituted and not at the time when the Court considers the matter. The crucial time for determining whether a court has jurisdiction is when the proceedings commenced.^⁴⁸

It follows therefore that the challenge to the Sterilisation Amendment Bill as enacted into law must be dismissed. Nothing further need be said about it.

That brings us to the question whether it is competent for this Court to grant relief once the President has signed a bill into law but before it has been brought into operation. This was the position with regard to the remaining legislation when the present challenge was launched.

Is it competent for this Court to grant relief in respect of an Act of Parliament that has not yet been brought into force?

The express provision of the Constitution which caters for this eventuality is contained in section 80, which provides:

“(1) Members of the National Assembly may apply to the Constitutional Court for an

order declaring that all or part of an Act of Parliament is unconstitutional.

(2) An application –

(a) must be supported by at least one third of the members of the National

Assembly; and

(b) must be made within 30 days of the date on which the President assented

to and signed the Act.

(3) The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if –

(a) the interests of justice require this; and

(b) the application has a reasonable prospect of success.

(4) If an application is unsuccessful, and did not have a reasonable prospect of

success, the Constitutional Court may order the applicants to pay costs.”

This provision must be construed in the light of the powers of this Court under section 172(2)(a), which empowers this Court to make an order concerning the constitutional validity of an Act of Parliament. These are very wide powers indeed.

In Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others,^⁴⁹ this Court was concerned with, among other issues, whether it could consider a provision which had not yet been brought into operation. The Court held that it has jurisdiction to consider provisions in a statute that have not yet been brought into operation. For its holding, the Court relied upon the provisions of section 172(2)(a).^⁵⁰ The basic reasoning of the Court was that section 172(2)(a), which empowers the Court to declare Acts of Parliament invalid, does not distinguish between Acts of Parliament that have been brought into force and those which have not. It added that in the case of a provision that has not yet been brought into force, the legislative process is complete and there is a duly enacted Act of Parliament.^⁵¹ In my view, this reasoning applies equally to a statute which has not yet been brought into force.

It is true, in Khosa, this Court did not consider the provisions of section 80. The purpose of section 80 is to make provision for abstract review at the instance of members of the National Assembly. It merely regulates the conditions under which members of the National Assembly may challenge an Act of Parliament. It does not preclude a member of the public from challenging a provision of an Act of Parliament that has been promulgated during the period of thirty days within which members of the National Assembly are required to approach this Court to challenge all or part of the Act of Parliament.

In terms of section 81, “[a] Bill assented to and signed by the President becomes an Act of Parliament”. The fact that the statute may not have been brought into operation cannot deprive this Court of its jurisdiction. There is nothing in the wording of section 80 that precludes this Court or any other court from considering the validity of an Act of Parliament at the instance of the public. Nor is there anything in the scheme for the exercise of jurisdiction by this Court that precludes it from considering the constitutional validity of a statute that has not yet been brought into operation. The legislative process is complete, and there can be no question of interference in such a process. Once a bill is enacted into law, this Court should consider its constitutionality.

I conclude therefore that it is competent for this Court to grant relief in respect of the proceedings of Parliament after the bill has been enacted into law but before it has been brought into force. It follows therefore that this Court has the jurisdiction to consider the constitutional challenge to the Dental Technicians Amendment Act, the CTOP Amendment Act and the THP Act.

It now remains to consider the last question posed in the directions, namely, whether it is competent for this Court to grant relief in relation to the proceedings of Parliament before Parliament has passed the bill.

Is it competent for this Court to issue a declaratory relief in respect of parliamentary proceedings before Parliament has concluded its deliberations on a bill?

The question whether it is competent for this Court to grant a declaratory relief to the effect that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in the legislative process before the parliamentary legislative process is completed is more complex. There is no express constitutional provision that precludes this Court from doing so. On the one hand, it raises the question of the competence of this Court to interfere with the autonomy of Parliament to regulate its internal proceedings, and on the other, it raises the question of the duty of this Court to enforce the Constitution, in particular, to ensure that the law-making process conforms to the Constitution.

Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question.^⁵² Courts have traditionally resisted intrusions into the internal procedures of other branches of government. They have done this out of comity and, in particular, out of respect for the principle of separation of powers. But at the same time they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, courts have developed a “settled practice” or general rule of jurisdiction that governs judicial intervention in the legislative process.

The basic position appears to be that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, courts take the view that the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. However, there are exceptions to this judicially developed rule or “settled practice”. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.^⁵³

The primary duty of the courts in this country is to uphold the Constitution and the law “which they must apply impartially and without fear, favour or prejudice.”^⁵⁴ And if in the process of performing their constitutional duty, courts intrude into the domain of other branches of government, that is an intrusion mandated by the Constitution. What courts should strive to achieve is the appropriate balance between their role as the ultimate guardians of the Constitution and the rule of law including any obligation that Parliament is required to fulfil in respect of the passage of laws, on the one hand, and the respect which they are required to accord to other branches of government as required by the principle of separation of powers, on the other hand.

That said, however, it is not necessary to reach any firm conclusion on whether it is competent for this Court to interfere in the deliberative process of Parliament to enforce the duty to facilitate public involvement. Although the parties were called upon to address this question, none of the statutes involved in this case were at a deliberative stage of Parliament when this litigation commenced. Notwithstanding the importance of this question, I consider that it is not desirable to answer it in these proceedings. It is a question that must be answered with regard to a specific challenge raising it pertinently. This is not such a case. It is better to leave it open for consideration when an occasion to consider it arises.

It now remains to consider the main item on our agenda, namely, whether the NCOP and the provincial legislatures have fulfilled their obligation to facilitate public involvement in their respective legislative processes as required by the Constitution. I have already concluded that this complaint, so far as it relates to the Sterilisation Amendment Act, must be dismissed. This leaves the Dental Technicians Amendment Act, the CTOP Amendment Act and the THP Act.

VI. Did the NCOP and the provincial legislatures facilitate public involvement in their respective legislative processes as required by the Constitution?

What do the public involvement provisions require?

The requirement to facilitate public involvement in the legislative processes of the NCOP is governed by section 72, which provides:

“(1) The National Council of Provinces must –

(a) facilitate public involvement in the legislative and other processes of the Council and its committees; and

(b) conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken –

(i) to regulate public access, including access of the media, to the Council and its committees; and

(ii) to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.

(2) The National Council of Provinces may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.”

Identical duties are imposed on the National Assembly by section 59 and on the provincial legislatures by section 118.

The provisions of sections 72(1)(a) and 118(1)(a) (“the public involvement provisions”) clearly impose a duty on the NCOP and the provincial legislatures to facilitate public involvement in their respective legislative processes. The question is what is the nature and scope of the duty comprehended by these provisions and to what extent is it justiciable.

The contentions of the parties

The applicant contended that the public involvement provisions require that public hearings must be held in respect of all legislation under consideration by a legislature whether at the national or provincial level. In the alternative, it was contended that a legislature should hold public hearings whenever there is evidence that a bill under consideration is controversial. The applicant submitted that in this case, public hearings should have been held in respect of each Bill, in each province and by the NCOP sitting in plenary session. For their part, Parliament and the provincial legislatures, as well as the Minister of Health, conceded that the public involvement provisions require public participation in the legislative process but contended that what is required is some opportunity to make either written or oral submissions on the legislation under consideration.

It is therefore common cause between all the parties to these proceedings that sections 72(1)(a) and 118(1)(a) require public participation in the legislative processes of the NCOP and the provincial legislatures. However, the parties differ on the nature and scope of the duty to facilitate public involvement.

The contentions of the parties require this Court to consider the meaning and scope of the duty to facilitate public involvement. This duty must be construed and understood in the light of: (a) the constitutional role of the NCOP in the national legislative process and, in particular, its relationship to the provincial legislatures; (b) the right to political participation under international and foreign law; and (c) the nature of our constitutional democracy. All of these provide the context within which to determine the meaning and scope of the duty to facilitate public involvement in legislative processes.

The role of the NCOP in the national legislative process

The legislative authority is vested in Parliament, which consists of two Houses: the National Assembly and the NCOP. Section 42(4) of the Constitution defines the role of the NCOP as follows:

“The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participation in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.”

The NCOP performs functions similar to the National Assembly but from the distinct vantage point of the provinces.^⁵⁵ Its role is both unique and fundamental to the basic structure of our government. It reflects one of the fundamental premises of our government, which sees national, provincial and local governments as “spheres within a single whole,”^⁵⁶ which are distinctive yet interdependent and interrelated.^⁵⁷ The NCOP ensures that national government is responsive to provincial interests while simultaneously engaging the provinces and provincial legislatures in the consideration of national policy. From this perspective, the NCOP plays a pivotal role “as a linking mechanism that acts simultaneously to involve the provinces in national purposes and to ensure the responsiveness of national government to provincial interests.”^⁵⁸

The NCOP shares many of its structural characteristics with the German provincial body known as the Bundesrat, or council of state governments, upon which the NCOP was modelled.^⁵⁹ Like the NCOP, the Bundesrat represents the interests of the Länder, which in this context are equivalent to the provinces in our country, in the national government. Meanwhile, a second parliamentary body known as the Bundestag, like the National Assembly, is elected to represent the people as a whole. The members of the Bundesrat are members of the state governments and are appointed and subject to recall by the states. They serve in the council as representatives of the Länder. The German Constitution provides that the Länder shall participate, through the Bundesrat, in the national legislative process.^⁶⁰ As constitutional partners, both the Bund, or national government, and the Länder have an obligation to consult, cooperate and communicate with each other, consistent with the principle of Bundestreue.^⁶¹

The procedure for enacting legislation under our Constitution similarly requires institutional co-operation and communication between national and provincial legislatures. Without such co-operation, the national legislative program may be severely compromised. Indeed, the Constitution contemplates that provincial interests will be taken into account in the national law-making process. The NCOP institutionalises the principle of co-operation and communication by involving the nine provinces directly in the national legislative process and other national matters. The local government is also involved indirectly in that local government may designate up to ten part-time, non-voting representatives to participate in the NCOP proceedings.^⁶² Thus the NCOP represents the concerns and interests of the provinces and as well as those of local government in the formulation of national legislation.^⁶³

Indeed, the principle of institutional co-operation and communication finds expression in the principle of co-operative government to which chapter 3 of the Constitution is devoted. The role of the NCOP should be understood in the light of the constitutional principle of co-operative government, which shares similarities with the principle of Bundestreue.^⁶⁴ The basic structure of our government consists of a partnership between the “national, provincial and local spheres of government which are distinctive, interdependent and interrelated.”^⁶⁵ The principle of co-operative government requires each of the three spheres to perform their functions in a spirit of consultation and co-ordination with the other spheres.^⁶⁶

Both the manner in which the NCOP delegates are selected and the manner in which they vote on legislation affecting the provinces provide the provinces with a significant voice in national legislation. The NCOP consists of ten delegates from each of the nine provinces, including six permanent delegates and four special delegates. The Premier of the province, or his or her designee, serves as one of the special delegates.^⁶⁷ The Premier, or his or her designee, heads the delegation.^⁶⁸ The remaining delegates are appointed by their respective provincial legislatures on a proportional basis.^⁶⁹ In the case of a bill that affects the provinces, the section 76 bill, each provincial delegation to the NCOP “has one vote, which is cast on behalf of the province by the head of its delegation”.^⁷⁰ It is common cause that in these proceedings we are concerned with section 76 legislation.

Each delegation votes on the basis of a mandate given by its provincial legislature. This is clear from the Constitution, which provides that the provincial legislatures have the responsibility to confer authority on their delegations to cast votes on their behalf in the NCOP.^⁷¹ As this Court has explained, the NCOP “is a council of provinces and not a chamber composed of elected representatives. Voting by delegation reflects accurately the support of the different provincial legislatures for a measure under consideration.”^⁷² In this manner the provincial legislatures are given a direct say in the national law-making process through the NCOP.

The procedure stipulated in section 76 for bills that affect the provinces “gives more weight to the position of the National Council of Provinces” than does the constitutional procedure for bills that do not affect the provinces.^⁷³ After a bill has been passed by the National Assembly it is referred to the NCOP, which can pass the bill, pass the bill subject to amendment or reject the bill.^⁷⁴ If the NCOP and National Assembly cannot agree on a bill, it is sent to a mediation committee established to facilitate the resolution of disputes between the two houses.^⁷⁵ If the two chambers cannot reach an agreement following mediation, the original bill lapses but may still become law if it is passed again but now by two-thirds of the members of the National Assembly.^⁷⁶ In this way, although the NCOP does not wield a final veto over section 76 bills, it can delay their passage and force a two-thirds majority in the National Assembly.

The relationship between the NCOP and the provincial legislatures

As pointed out earlier, in relation to section 76 bills, the NCOP delegations vote on the basis of mandates given to them by their respective provincial legislatures. Naturally, this will require provincial legislatures to study and deliberate on the bill in question so as to give informed mandates. And in doing so, provincial legislatures no doubt take part in the national legislative process. This is so because in the national legislative process, the NCOP “represents the provinces to ensure that provincial interests are taken into account in the national sphere of government.”^⁷⁷ And “[i]t does this mainly by participating in the national legislative process”.^⁷⁸ In this way, the provincial legislatures become involved in the national legislative process by considering how they should vote on the bill under consideration at the national level.

As the provincial legislatures are involved in the legislative process, albeit at the national level, they are engaged in the “legislative [or] other processes” of the legislatures.^⁷⁹ It is in this sense that the provisions of section 118(1)(a) of the Constitution become relevant in the context of national legislation. Neither Parliament nor the nine provinces contended otherwise.

The allegation by the applicant that the provinces did not comply with the provisions of section 118(1)(a) in connection with the health legislation must be understood in the light of this relationship between the NCOP and the provincial legislatures.

The duty to facilitate public involvement in the legislative process is an aspect of the right to political participation. International and regional human rights instruments provide a useful guide in understanding the duty to facilitate public involvement in the context of our country. I consider it necessary therefore to refer to the right to political participation as understood in international law.

The right to political participation under international and foreign law

The right to political participation is a fundamental human right, which is set out in a number of international and regional human rights instruments. In most of these instruments, the right consists of at least two elements: a general right to take part in the conduct of public affairs; and a more specific right to vote and/or to be elected.^⁸⁰ Thus article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) provides:

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.^⁸¹

Significantly, the ICCPR guarantees not only the “right” but also the “opportunity” to take part in the conduct of public affairs.^⁸² This imposes an obligation on states to take positive steps to ensure that their citizens have an opportunity to exercise their right to political participation.^⁸³ The right enshrined in article 25 must be understood in the light of article 19 of the ICCPR, which provides:

“2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Both articles 19 and 25 guarantee not only the positive right to political participation, but simultaneously impose a duty on states to facilitate public participation in the conduct of public affairs by ensuring that this right can be realised. Taken together, they seek to ensure that citizens have the necessary information and the effective opportunity to exercise the right to political participation.

Since the adoption of the ICCPR, various regional human rights instruments and declarations have reaffirmed the right to political participation. The relevant regional human rights instrument in the context of our country is the African [Banjul] Charter on Human and Peoples’ Rights (“African Charter”), adopted on 27 June 1981, which was acceded to by our country on 9 July 1996. The African Charter is more specific than the ICCPR in spelling out the obligation of states parties to ensure that people are well informed of the rights in the African Charter. The relevant articles are articles 9, 13 and 25 which provide:

“Article 9

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

. . . .

Article 13

1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

. . . .

Article 25

States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.”

Similarly, the American Convention on Human Rights provides in article 23 that all citizens shall enjoy the right and opportunity “to take part in the conduct of public affairs, directly or through freely chosen representatives”.^⁸⁴ The Harare Commonwealth Declaration proclaims the “individual’s inalienable right to participate by means of free and democratic processes in framing the society in which he or she lives”.^⁸⁵ The Inter-American Democratic Charter re-affirms that “the participatory nature of democracy in [the American] countries in different aspects of public life contributes to the consolidation of democratic values and to freedom and solidarity in the Hemisphere”.^⁸⁶ It further asserts that “[i]t is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy.”^⁸⁷

Nature and scope of the right

The precise nature and scope of the international law right to participate in the conduct of public affairs is a matter for individual states to determine through their laws and policies. Under article 25 of the ICCPR, states are to establish “powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25” in national constitutions and other laws.^⁸⁸ As the Human Rights Committee has explained, “[i]t is for the legal and constitutional system of the State party to provide for the modalities of such participation.”^⁸⁹

The right to political participation has been described as an open-textured “programmatic” right, which is open to experimental reformulation and which will necessarily change in the light of ongoing national experiences:

“Fresh understandings and different institutionalizations of the right in different cultural and political contexts may reveal what an increasing number of states believe to be a necessary minimum of political participation for all states. That minimum should never require less of a government than provision for meaningful exercise of choice by citizens in some form of electoral process permitting active debate on a broad if not unlimited range of issues. But it could require much more.”^⁹⁰

The idea of an evolving human right to political participation comports with this Court’s view of human rights as open to elaboration, reinterpretation and expansion. As the Court has explained, “rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on a new texture and meaning.”^⁹¹ This must be particularly so for programmatic rights like the right to take part in the conduct of public affairs, which must be realised through the programs and policies of states. But more importantly, the right to political participation must be left to gather its meaning and content from historical and cultural experience. What is required is for “States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.”^⁹²

The right to political participation includes but is not limited to the right to vote in an election. That right, which is specified in article 25(b) of the ICCPR, represents one institutionalisation of the right to take part in the conduct of public affairs. The broader right, which is provided for in article 25(a), envisages forms of political participation which are not limited to participation in the electoral process. It is now generally accepted that modes of participation may include not only indirect participation through elected representatives but also forms of direct participation.^⁹³

According to the Inter-Parliamentary Union, an international organisation of Parliaments of sovereign States, which serves as a focal point for worldwide parliamentary dialogue, “[d]irect participation means that not only elected representatives, but citizens too are able to participate directly in public affairs, either through public debate and dialogue with elected representatives, referendums and popular initiatives or through self-organisation, guaranteed under the freedoms of expression, assembly and association.”^⁹⁴ In this regard the Human Rights Committee has explained that:

“Citizens participate directly in the conduct of public affairs when they exercise power as members of legislative bodies or by holding executive office. This right of direct participation is supported by paragraph (b). Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b). Citizens may participate directly by taking part in popular assemblies, which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government.

. . . .

Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.”^⁹⁵

The right to political participation can therefore be realised in many ways. As one commentator has observed of article 25 of the ICCPR:

“[T]he right to political participation can be realized in multiple ways, and it is not possible to derive from this provision one single means of realizing it. In this context, the heterogeneity of the parties’ political systems and the different degrees of political participation provided for, even in democratic states, should not be overlooked. Democratic systems and theories may be more or less focused upon representation and may balance the division of powers between central and local authorities differently. For some theories on democracy, the right to vote for representatives is satisfactory. Other theories are more expansive and place a higher value on participatory elements in society. The latter approach suggests citizens’ participation before local authorities with decentralized power and public involvement in local government.”^⁹⁶

The idea of allowing the public to participate in the conduct of public affairs is not a new concept. In this country, the traditional means of public participation is imbizo/lekgotla/bosberaad. This is a participatory consultation process that was, and still is, followed within the African communities. It is used as a forum to discuss issues affecting the community. This traditional method of public participation, a tradition which is widely used by the government, is both a practical and symbolic part of our democratic processes. It is a form of participatory democracy.

Neither is the idea of allowing the public to participate in the parliamentary decision-making process a new concept. The right to political participation has deep historical roots, dating back to the Middle Ages.^⁹⁷ The Magna Carta guaranteed the right to petition the government for the redress of grievances,^⁹⁸ and over time this right became a central part of English constitutionalism, whereby “the disenfranchised joined the enfranchised in participating in English political life.”^⁹⁹ The English colonists to the United States brought with them an understanding of petitioning as the foundation of public participation in politics,^¹⁰⁰ and the right to petition the government is now protected by the First Amendment to the U.S. Constitution.^¹⁰¹ Likewise, Article 17 of the Basic Law for the Federal Republic of Germany guarantees the right of every citizen to present written requests or complaints to Parliament or other appropriate authorities.^¹⁰² Members of the public exercise this right individually and collectively in substantial numbers, and a petitioner is generally entitled to have his or her petition examined on its merits and to be informed of the decision taken and the reasons for that decision.^¹⁰³

More recently, a growing number of national Constitutions, in particular those adopted since the entry into force of the ICCPR, expressly embrace the principle of participatory democracy. Several, like our Constitution, include provisions that promote participation in law-making, whether through written petitions, oral hearings or other mechanisms of public involvement. For example, the Constitution of Tanzania provides that “[e]very citizen has the right and the freedom to participate fully in the process leading to the decision on matters affecting him, his well-being or the nation.”^¹⁰⁴ Citizens of Portugal have the right to submit petitions, representations or complaints to governmental institutions, and the law must determine conditions under which the National Assembly, sitting in plenary session, will consider these submissions.^¹⁰⁵

The Constitution of Colombia includes as one of the essential goals of the state, the goal “to facilitate the participation of everyone in the decisions that affect them and in the economic, political, administrative, and cultural life of the nation.”^¹⁰⁶ More specifically, it provides that “[a]ny citizen has the right to participate in the establishment, exercise, and control of political power. To make this decree effective the citizen may . . . [p]articipate in elections, plebiscites, referendums, popular consultations, and other forms of democratic participation.”^¹⁰⁷ Other jurisdictions also provide for the direct involvement of their citizens in the law-making process.^¹⁰⁸

Conclusions from international law and foreign law

The international law right to political participation encompasses a general right to participate in the conduct of public affairs and a more specific right to vote and/or be elected into public office. The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that is not all; it includes the duty to facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary information and effective opportunity to exercise the right to political participation.

While the right to political participation in international law can be achieved in multiple ways, it is clear that this right does not require less of a government than provision for meaningful exercise of choice in some form of electoral process and public participation in the law-making process by permitting public debate and dialogue with elected representatives. In addition, this right is supported by the right to freedom of expression which includes the freedom to seek, receive and impart information. In our country, the right to political participation is given effect not only through the political rights guaranteed in section 19 of the Bill of Rights, as supported by the right to freedom of expression^¹⁰⁹ but also by imposing a constitutional obligation on legislatures to facilitate public participation in the law-making process.

The duty to facilitate public involvement in the legislative process under our Constitution must therefore be understood as a manifestation of the international law right to political participation. Public involvement in the legislative and other processes of legislatures of our country is a more specific form of political participation than the participation in the conduct of public affairs that is contemplated by article 25 of the ICCPR.

Thus the Constitutional Assembly, in framing our Constitution, was not content only with the right to vote as an expression of the right to political participation.^¹¹⁰ It opted for a more expansive role of the public in the conduct of public affairs by placing a higher value on public participation in the law-making process. As Ms N Mokonyane, a Gauteng member of the NCOP, has recently noted:

“Our struggle against apartheid was necessitated not just by our hatred of the apartheid system, and the suffering and the injustice it inflicted on the people of our country; it was also inspired by our vision of a democratic alternative as opposed to a system based on an institutionalised racialism and exploitation.

	Links to media summary

South Africa: Constitutional Court

Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC) (17 August 2006)