GHAI: Public participation in law-making

I wrote last August about the case on the 2023 Finance Act in the Court of Appeal. That court had held the Act invalid because of lack of public participation.

In October the Supreme Court decided the case, saving the Finance Act. It did emphasise the importance of participation, observing that it is an aspect of the sovereignty of the people, which is insisted on in the very first Article of the Constitution.

I want to focus on what else it said about participation – apart from holding that there had in fact been adequate participation on that Act. But first: -

THE CONSTITUTION

People are aware that the constitution makes participation a national value (Art. 10 ).

It also mentions participation specifically in relation to devolution and local decision-making, environment, financial matters and the work of Parliament and county assemblies, including law making.

The courts have required participation in many other contexts, but clearly those picked out by the constitution makers are of special importance.

Various Acts of both levels of Legislature have been declared unconstitutional for lack of adequate participation.

Often the public are given about a week to comment on bills before they reach the stage of amendment – which is usually followed very quickly by the bill being passed – or sent to the other House if both National Assembly and Senate are to pass it.

AMENDING A BILL

One issue in this case was about was a change made to a bill at a late stage that might not have received any or adequate public input.

The Supreme Court agreed with the CA that minor changes made to a bill did not need fresh participation.

Nor was fresh participation needed if the changes were the result of earlier participation.

It said that all the changes in the Finance Act case fitted into one of these categories. The court also seemed to approve an earlier court’s statement:

“for any amendments to be introduced on the floor of the House subsequent to public participation, the amendments must be the product of the public participation and ought not to be completely new provisions which were neither incorporated in the Bill as published nor the outcome of the public input.”

But if some totally new and valuable idea does come out of participation, but the public have had no chance to consider it, is it really right that they continue to be deprived of this opportunity – or that really new ideas cannot be introduced at a late stage?

FEEDBACK

The CA had said that absence of feedback on participation made the process of making the Finance Act unconstitutional.

Good practice in participation internationally says that feedback should be given on how public input is used - or if rejected why.

But I earlier commented “when would that feedback be given – in the committee report or after the Bill is passed? And what would its effect be? Public input is not binding. And the public cannot do much but complain if their views have been rejected – for adequate reasons. Should the absence of feedback really doom the whole Bill?”

Incidentally, the Supreme Court said that the relevant National Assembly committee had responded to views in a chapter of its report amounting to “a whopping 235 pages”, containing “a consideration of views from 161 persons and organizations”.

So it is possible for Parliament to give feedback. The Supreme Court said, “as a matter of good practice, [Parliament must] put in place reasonable measures to guide how Parliament considers and treats the proposals, views, suggestions, and comments received during such exercises.”

But there was no specific constitutional duty to do so, and failure to give feedback could not make the bill invalid.

WHAT PARLIAMENT SHOULD DO

I also agree with the court that, “to enhance transparency and accountability in the law-making process, the public should be able to track and monitor the legislative process at every stage. As a Bill progresses through the various stages of the law-making process, the public must be kept informed, and different versions of the Bill should be made available for their review.”

The main responsibility for improving the system within Parliament lies with Parliament.

The Speakers control, which bills can be introduced in their chambers. They require the so-called Explanatory Memorandum to come with every bill, but this rarely explains much.

Only bills from an independent office or commission must come with information about consultation with stakeholders (in the National Assembly).

Much more information ought to be supplied to help even MPs understand what a bill is about. Even private members should provide substantial background material about a bill they sponsor.

Standing Orders (parliamentary rules of procedure) require committees dealing with bills to carry out participation but there is no exposition of what makes participation effective.

The Standing Orders do say, vaguely, the committee must ‘take account’ of the public input. Some radical changes are needed in the Standing Orders to require participation when genuinely new things are added to a bill in the late stages of the parliamentary process.

Otherwise late changes can be introduced deliberately to avoid participation.

PARLIAMENT IS TOO LATE

Major policy change requiring law should be preceded by a major policy document.

This should examine the problem, and review the existing law, discussing the various possible approaches to dealing with the problem.

If people can comment, knowledgeably, at this stage, there will be much less need for participation at the parliamentary enactment stage.

The documents need to be more detailed and focussed than many policy documents are now. Indeed their preparation should involve participation.

A major problem about leaving participation to the Parliament stage is that even if there were various possible approaches to the issues that led to the bill, a choice has already been made about the approach.

Why is the Law Reform Commission not asked to draft consultation documents for major issues that will probably require law reform?

The LRC’s Act gives it functions such as informing and educating the public about law reform and specific law reviews, advising governments on amendment of the law, collaborating in the formulation of legislation on social, economic and political policies, drafting Bills for governments.

Earlier discussion does not do away with the need for participation at the parliamentary stage, for the actual law considered and ultimately passed may be quite different from earlier proposals.

It has become obvious recently that decisions and policies are often half-baked and yet attempts are made to implement them. This result in the sorts of shambles we see when the new university funding scheme is held unconstitutional or the transfer from NHIF to SHIF leaves patients uncovered.

WHY DOES PARTICIPATION MATTER?

The objective of participation is better law and policy, better-informed citizens and potential difficulties ironed out as much as possible before law comes into effect, even before it is passed.

It is an aspect of the philosophy of our constitution that our democracy is not just a matter of electing people every five years.

It’s not just government that should take this seriously. It is possible to organise to make presentations before Parliament deigns to give a week for comment towards the end of the law-making process.

The NGO Mzalendo often tells us when bills are taken to Parliament. People need to organise to assess bills and make their views known.

Otherwise the whole notion gets distorted. I suspect people may think, “I don’t like this whole Bill. I won’t participate, but after it is passed I can challenge it on the basis on inadequate participation.”

So the participation requirements cease to be about democracy and getting better law, but are weaponised to undermine an unpopular law or an unpopular government.