Public Participation, Statutory and Regulatory Framework that Governs Public Participation in the South African Government by Victor K Makwakwa

1 INTRODUCTION

South Africa has come a long way from an Apartheid regime to a democratic dispensation. Over this period of time, the challenges faced by government have changed, the needs and desires of people and also their involvement in government affairs. The citizens of the nation are affected by the actions and inaction's of the government’s functions and policies. Public participation is extremely important because the public are the people who reap what the government sows. The promotion of democracy and development cannot be achieved if there is no public participation. This mechanism promotes and strengthens democracy, promotes decision making and solidifies community development. There are statutory and regulatory frameworks which have been promulgated for public participation since the beginning of democracy in South Africa. The aim of this assignment is to discuss public participation in the local government, and to critique the statutory and regulatory framework that governs public participation in the South African local government. Key terms to be defined in this assignment would include public participation, democracy, local government and legislative framework. Furthermore to be discussed are the mechanisms used to facilitate municipal community participation. Without community participation within municipal affairs, officials and those in high decision making positions will make decisions that do not reflect and adhere to the needs of the people.

2 DEFINITION OF KEY TERMS

To further understand what this essay is about, one has to understand the key terms included, the key terms to be defined in this section are public participation, democracy, local government and legislative framework. After the completion of this section one may gain understanding and clarity about the latter information about the assignment which include the following terms.

2.1 Public participation

According to the South African Legislative Sector (2013:7) Public participation is the process by which Parliament and provincial legislatures consult with the people and interested for affected individuals, organisations and government entities before making a decision. Public participation is a two-way communication and collaborative problem solving mechanism with the goal of achieving representative and more acceptable decisions. Other terms sometimes used are ‘public involvement’, community involvement’ or ‘stakeholder involvement.

2.2 Democracy

According to Wikipedia (2016: internet source) Democracy, which derives from the Greek word “demos,” or “people,” is defined, basically, as government in which the supreme power is vested in the people. In some forms, democracy can be exercised directly by the people; in large societies, it is by the people through their elected agents. Or, in the memorable phrase of President Abraham Lincoln, democracy is government “of the people, by the people, and for the people.”

2.3 Local government

According to Wikipedia (2016: internet source) is a form of public administration which, in a majority of contexts, exists as the lowest tier of administration within a given state. The term is used to contrast with offices at state level, which are referred to as the central government, national government, or (where appropriate) federal government and also to supranational government which deals with governing institutions between states. Local governments generally act within powers delegated to them by legislation or directives of the higher level of government.

2.4 Legislative framework

Legislative framework is the statutory or regulatory frameworks created by government. These are the laws and legislation created by government which guide, control or influence people, functions and the government itself.

3 PUBLIC PARTICIPATION WITHIN THE LOCAL GOVERNMENT

According Nyalunga (2006) public participation is a relatively new phenomenon on South African soil. The previous government created race-based municipalities to facilitate and regulate the suppression of participation by African, Indian and Coloured communities. Under Apartheid, the bulk of power resided at the center with local government being the lowest tier within a strict hierarchical structure. Consequently, there was only minimal space for meaningful public participation in decision making processes. For Naude (2001) the local government system was structured to advance the agenda of racial segregation and exclusion. Williams (2000) reiterated that ‘in terms of community participation, South African history reflects very little opportunity for community participation primarily because local government in South Africa had until the early 1990’s no constitutional safeguard, as it was perceived as a structural extension of the State and a function of provincial government. Yet, since the demise of the notorious apartheid government, leaders of the new South Africa were compelled to create space for community participation. In its endeavor to advocate public participation, the new government embarked on a process of devolving political and administrative authority and transferred it to independent local-level statutory agency, for example to municipalities or local councils and ward committees

Every municipality has functions, activities and policies that affect its people positively and/ or negatively. Officials as public representatives have to represent and be accountable to the public, the work they do is sometimes not enough as what they think the public needs is far from what they really do need. To solve this blur and the implementation of policies and functions that don’t serve the people, the public should participate within the local government so that their needs may be provided and their goals achieved. For example, the municipality of Ekurhuleni has a heterogeneous composition of people, so the needs of the community will differ, here the public need to participate more and be involved so that the local government can provide effective and efficient services that meets the needs of the different types of people within the municipality.  

According to Nelson Mandela Bay’s Public Participation Policy (2014:12) the municipality will seek to use the various levels of participation, i.e. information-sharing, consultation, engagement and empowerment as and when necessary. The Municipality will promote and ensure people-centered and people-driven development, as reflected in the Constitution. The Municipality will continuously strive to create an enabling environment for citizens to be involved in and participate in the development of policies from the initial stages. By doing this public participation will be improved, the municipality plays a major role in public participation as they are the gate keepers of information and development, they have the means and variables to provide for better participation and community development.

In addition to Nyalunga (2006) there are many ways that individuals can participate in local government and influence decision making. Kabemba (2004) catalogued three different types of citizen/government interaction: Firstly citizen’s action, by means of lobbying bodies like parliamentary committees, public demonstrations and protests. Secondly citizen involvement, by means of public hearings, consultation with advisory committees and attitudinal surveys. Thirdly electoral participations, by means of casting votes and electing representatives. These forms of participation are critically important and serve as a yard stick to measure the level of democratic development and political maturity in our country. Lobbying is mainly used by organizations to persuade politicians to support their position on a particular issue. Communities can lobby their councilor. Councilors can use lobbying to try to persuade committees, the Mayor and other parts of government. Electoral participation remains a key principle of democracy. ‘Local government is the closest form of government to the people and as such has potential to enhance participation. The advantage of local elections is that citizens know candidates generally well and choose on an informed basis (Kabemba 2004). However, a lot has to be done in terms of providing the citizens with information about election processes and why voting is important. Voter education should indeed become an integral part of larger civic and government education programs which ought to be undertaken to educate the citizens. In essence the government and civic society organizations need to do a lot more to provide factual information for voters in a neutral way so they can participate knowledgeably and thereby increase voter turnout both at national and local government levels. Direct advice and support: councilors are the most direct form of access people have to government. Usually people will turn to a counselor for direct advice and support. Once a problem has been referred to a counselor, the person should demand to know what the councilor is doing or has done.

In addition to Kabemba (2004) – Citizen’s participation: power beyond parliament. Electoral Institute of Southern Africa. To deal with the problem, Carrim (unknown) argues that elected representatives are faced with a major challenge in promoting and enhancing participatory governance, especially in rural areas where local government structures and systems are still evolving. It is important for councilors to serve as representatives of the people immaterial of their political affiliations.

4 STATUTORY AND REGULATORY FRAMEWORK GOVERNING PARTICIPATION

According to Auriacombe (2016:22) municipalities have statutory obligations to foster local democracy which are guided by constitutional principles and the Bill of Rights. A number of regulatory guideline documents also exist to frame the rights and duties of members of the local municipality. Some of these rights include the right to participate in municipal decision-making and to be informed of decisions of the municipal council. Municipalities should thus capacitate members to actively participate by disclosing the state of affairs of the municipality and to act upon recommendations, representations and complaints of members of the community. Upon such submissions they have further the right to receive prompt response from the municipality.

According to the National Policy Framework for Public Participation (2007:7) there is key legislation for governing participation. While there are many laws which require some form of public participation in local governance, there are three laws which are central. These are the Constitution, the Systems Act and the Municipal Structures Act, 117 of 1998 (hereinafter the Structures Act).

The notion of public participation in all spheres of government is embedded in the South African Constitution. In terms of the local spheres of government the Constitution states: Section 151(1) (e). Municipalities are obliged to encourage the involvement of communities and community organizations in local government. Section 152. The objects of local government (are) to encourage the involvement of communities and community organizations in the matters of local government. Section 195 (e). In terms of the basic values and principles governing public administration – people’s needs must be responded to, and the public must be encouraged to participate in policy-making.

The Municipal Structures Act 117 of 1998 (as amended in 2000 and 2003) allows for a Category A municipality with a sub-council or ward participatory system, or a Category B municipality with a ward participatory system, and Executive committees or Executive Mayors must annually report on the involvement of communities and community organizations in the affairs of the municipality.

The Municipal Systems Act 32 of 2000 defines the legal nature of a municipality as including the local community within the municipal area, working in partnerships with the municipality’s political and administrative structure to provide for community participation. According to Section 4 in the Systems Act council has the duty: To encourage the involvement of the local community. To consult the community about the level quality, range and impact of municipal services provided by the municipality, either directly or through another service provider In Section 5, members of the community have the right: To contribute to the decision-making processes of the municipality and submit written or oral recommendations, representations and complaints to the municipal council. To be informed of decisions of the municipal council. To regular disclosure of the affairs of the municipality, including its finances.

According to Yusuf (2004:1) the local government is to a large extent governed by the five pieces of legislation: 1, The Constitution of South Africa promotes the idea of developmental local government. Section 152(1) (e) specifies that one of the objects of local government is to encourage the involvement of communities and community organizations in the matters of local government. 2, The Municipal Structures Act entrenches community participation by stating that the executive committee must report on the involvement of communities in municipal affairs and must ensure public participation and consultation and report the effects thereof on decisions taken by council. 3, The Municipal Systems Act defines the legal nature of a municipality as the political structures, the administration and the community of the municipality, thus enshrining the community as an integral part of the municipality. Chapter four of this act is dedicated to community participation stating that the municipality must foster participation in the integrated development planning (IDP) process; the evaluation of its performance through performance management; the budget process; and strategic decisions around service delivery. 4, The Municipal Finance Management Act (MFMA) requires that immediately after the annual budget is tabled in a municipal council, the accounting officer of the municipality must make public the budget and all supporting documentation, and invite the local community to submit comments on what is contained in the budget. Lastly 5, the Municipal Property Rates Act has a direct impact on communities as property owners and allows for a process of community participation. Section 4 of the Act states that before a municipality adopts its rates policy, it must follow a process of community participation in accordance with Chapter 4 of the Municipal Systems Act.

These statutory and regulatory frameworks help guide and promote public participation, their effectiveness lies within municipalities and their officials obeying the law and abiding to the frameworks, in addition to the availability of means that help people become more involved with local government issues. At the end of the day, people who know their rights will be actively involved, and those who don’t may not be encouraged to include their views and opinions. In addition if municipalities don’t encourage community involvement, their direct and most serious needs will not be gained due to the municipality having their own perception on community needs. These frameworks help municipalities gain legitimacy and promote good governance.  

5 MECHANISMS TO FACILITATE MUNICIPAL COMMUNITY PARTICIPATION

There are mechanisms that facilitate municipal community participation. These mechanisms include the role of councilors, community development workers (CDWs), integrated development planning representative forums, municipal-community partnerships (MCPs) and open council meetings amongst others. In addition mechanisms for participation within in Buffalo City and the Stellenbosch Municipality for example as per (Yusuf, 2004).

5.1 Role of councilors

Councilors as the elected representatives play a crucial role in community participation. Councilors must encourage input into municipal planning and programme implementation by involving ward committees, Non-Governmental Organizations (NGOs) and Community-Based Organizations (CBOs) to develop proposals that council could consider and appoint community representatives to advise the municipality on priorities for service development. Councilors should furthermore report on council activities to the community on a regular basis. The ward committee system and the media play significant roles in this regard. Councilors should also prepare progress reports to shows how council has performed in relation to their IDP-objectives and the budget (Auriacombe, 2016:25).

In addition to Auriacombe (2016:25) it is the responsibility of councilors, mainly through the Office of the Speaker, to create conducive conditions for ward committees to be actively involved in the decision-making processes and affairs of the municipality. This may include setting up meetings, taking minutes, giving financial and administrative support, to enable ward committees to do their work etc. The ward committee’s main tasks are to communicate and consult with the community in respect of development and service plans. They can make sure that citizens are involved in and informed about council decisions that affect their lives. To allow ward committees to participate meaningfully it is expected of the municipality to support ward committees by providing training for ward committee members, the necessary understanding of municipal processes and provide logistical support (transport, meeting venue, reimbursement of out of pocket expenses for transport, and so forth).

5.2 Community development workers (CDWs)

Community Development Workers (CDWs) are appointed to bridge the gap between service provision by all government spheres and departments and access by the communities. They should thus be able to resolve coordination problems between various spheres of government that arise at the local level. CDWs are required to address, amongst other things, the lack of information, knowledge and poor communication that communities experience in relation to government services. As community facilitators and organizers, their functions are to assist communities in explaining what their needs are and to develop and support community structures. CDWs furthermore facilitate public participation in government development projects (e.g. IDP, LED, infrastructure and service delivery projects) and identify service blockages in the community. In partnership with the community they then find solutions to identified needs and blockages by interacting with national, provincial and local government structures (Auriacombe, 2016:26).

5.3 Integrated development planning representative forums

Auriacombe (2016:27) indicates that an IDP Representative Forum should be established to ensure proper communication between all stakeholders and the municipality. It is a structure for discussion, negotiations and joint decision- making where stakeholders represent the interests of their constituencies. The IDP Forum is an effective mechanism to enable community-based planning. Community-Based Planning (CBP) can be regarded as a ward-based planning approach with the aim to cascade the IDP down to ward level. CBP makes municipal plans more relevant to local conditions and increases community involvement in the processes and control in issues of service delivery. This approach requires functional ward committees who develop plans for their own wards, and link ward priorities to the IDP of the municipality. CBP empowers communities to plan for themselves by helping local government to be responsive to local issues and service delivery. The IDP Representative Forum is a key mechanism to gain community input during the annual review of the IDP. This review is necessary to ensure its relevance of the Municipality’s Strategic Plan as far as adjustment to changing circumstances is concerned.

5.4 Municipal-community partnerships (MCPs)

Municipal-community partnerships (MCPs) are one type of partnership which can take on different forms and entail different levels of complexity depending on resource availability, institutional capabilities and capacities and development priorities. NGOs and CBOs have banded together with government to: Support participatory methodologies in administration conveyance and base arrangement. Encourage huge scale government programs which may incorporate project conceptualization, execution, administration conveyance and observing and assessment. Add to approach definition and socially responsive advancement intercessions through organized and unstructured connections. Standardize elective conveyance frameworks. Enhance access of the poor to merchandise and administrations (Cranko & Khan 1999).

5.5 Open council meetings

According to Auriacombe (2016:28) Council meetings (date, time, place, agenda, etc.) should be made known to the community via the local media and other mechanisms. Opportunities must be created for stakeholders and role-players to participate in council’s budgeting and planning processes and to make it known how they can contribute. Monthly newsletters could also be used to emphasis key decisions taken by the council. Council could lobby local newspapers to run a regular column on council affairs or constituency matters. The press should regularly be briefed on council’s challenges, priorities, constraints and decisions.

In their respective portfolio committees councilors should encourage participation from key role-players and stakeholders. Councilors should discuss budgetary processes and constraints with the role-players and stakeholders. It is important for councilors to be available at office hours that must be advertised so that it is possible for the public to consult with him or her. It is also a good idea to have a complaints book so that citizens can write down all complaints and problems that they have. In light of the Batho Pele principles, the response time, in other words, the time that it takes to remedy the complaint should also be monitored.

5.6 Buffalo city municipality mechanisms for participation

According to Yusuf (2004:5) Public participation began in earnest in Buffalo City with the formation of the Ward Committees in the latter part of 2001. The participation process initially focused on identifying the needs of the community to inform the Integrated Development Plan (IDP). Formal and informal mechanisms exist Buffalo City to allow for Community participation.

Ward Committees - BCM elected ward committees consisting of a Ward Councilor and ten members who are elected by the community. The purpose of the Ward Committees is to provide a link between Council and the community so as to enhance community involvement in the governance processes of the municipality. Ward Committees have received training concerning issues such as understanding local government, understanding the ward and constituency, and basic skills to facilitate participation and consultation. However, it appears that there has not been adequate training about understanding municipal budgets and the budget process. It is difficult to assess the general effectiveness of Ward Committees as some of them function extremely well while others participate only marginally. The wards that function well tend to have a Ward Committee that is dedicated and hard-working. There are exceptional cases where even if the Ward Committee is inactive, the community has a vibrancy of their own.

Other participation mechanisms - The municipality also uses other participation mechanisms to obtain input into the planning and budgeting process as well as to impart information. These include the BCM Representative Forum; Budget Road Shows; the Mayoral Listening Campaign; and informal mechanisms such as notices in the press, at schools and at churches; information dissemination through the Buffalo City newsletter; publishing details of proposed policies in newspapers and in submitting copies to libraries and relevant interest groups; and publishing information on the municipal website with contact details for councilors and officials.

5.7 Stellenbosch municipality mechanisms for participation

Yusuf (2004:9) indicates that the process of community participation in Stellenbosch Municipality is different from BCM due to the fact that the municipality has undergone a number of transitions since its formation in 2000. Ward Committees were established only at the end of 2003 as a result of a political change in Council due to the crossing of the floor legislation which allowed councilors to change political allegiance.

The Ward Committees were established in November 2003 replacing the Representative Forum and Area Forums which were the previous community participation structures. Each Ward Committee consists of a Ward Councilor and ten members who are elected by the community. The purpose of the Ward Committees is to be a formal communication channel between the community and the Council.

The Ward Committee system in Stellenbosch is still fairly new and some of the committees had not been fully constituted at the time of writing. The committees also vary in the way they function with some operating very well while others are struggling. All Ward Committee members had attended a workshop which explained the rationale behind the ward committee system and how they should function, but all respondents interviewed recognized that further capacity building is necessary especially in terms of participation in the IDP and budget processes.

6 CONCLUSION

Participation in South Africa remains largely at the level of electing political leaders and progress has not been made to ensure public participation in decision making. The lack of citizen participation in the affairs of local government, if not taken seriously, could negate and compromise our progressive democracy. Public participation will not happen by itself, citizen participation will not happen by exhortation and noble talks. It will require struggle from the people and effective framework. It needs people who have a passionate conviction and commitment to the greater good of the community. Effective participation also requires that municipalities be thoroughly capacitated and have to have the will to promote citizen participation. The government should ensure that all the conducive legislative frameworks are properly implemented and mechanisms should be established to monitor all participatory processes. Feedback is also important. Use of media to disseminate information is also important. The government should put in place a detailed plan to facilitate periodic consultation and feedback. Report back should be made a norm and be regular through community for a, ward committees and other participatory structures. It is also important that municipalities urgently attend to what is perceived to be the lack of service delivery. If delivery issues are properly addressed, this will in turn entice people, most especially the poor to actively participate in the affairs of the government. For public participation to be sustainable, it requires partnerships between government and civil society.

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