It would be nice to be able to congratulate Tito Mboweni on having produced the first truly plain- language bill of the new dispensation. The new draft of the Labour Relations Bill has been re-written, not just so as to incorporate the deals struck by labour, business and government in the National Economic, Development & Labour Council (Nedlac), but also with the consumer in mind.
Thus, at its first meeting of the new parliamentary session, the Parliamentary Portfolio Committee on Labour was informed the bill had been drafted with only two questions in mind: Who is the bill written for? Who is going to read each chapter? The answer, we were told, is the worker. The ordinary citizen. Revolutionary almost. Even better, the lawyer is deliberately placed last on the list of people to whom the bill’s provisions should be accessible. “They can manage,” said the ministerial expert. How true.
A laudable aspiration. But the problem is the new draft had been declared, and marked, “Confidential”. No-one except for the parliamentary committee members were to see it. So, he who takes with one hand, taketh away with the other. Accessible in the end, perhaps, but not in the making.
It is so silly. The Draft Bill is simply a combination of the old Bill, which was made public, and the agreement reached by the new Nedlac, the terms of which have also been published, dressed up in the said new language (and allegedly, it should be added, with some pretty diagrams to help explain what’s going on and a whole new layout, with “lots of white space”). So there can be no reason for it to be held back.
In the coming two or three weeks, the committee, chaired by Godfrey Oliphant, is supposed to scrutinise the new version of the Bill. For interested observers – – the press, civil society, individual citizens — it will be both confusing and boring, because to follow such a discussion without a copy of the Bill will be well-nigh impossible.
This, then, has other implications. It suggests that someone — the Minister of Labour presumably — is dismissive or reckless about the substance of parliamentary transparency and accessibility, or more likely has simply not thought it through. Moreover, it detracts from the government’s constant refrain that the press fails to report important issues of policy properly. On this Bill, however, it cannot now complain if the press coverage is inadequate. By such acts and omissions does a government forfeit the right to
The cynically-minded might link this with the apparent anxiety of the government that the painstakingly negotiated Nedlac agreement should not be disturbed by the parliamentary process. “The agreement,” said Mboweni, “represents a careful equilibrium.”
“If you take one part away,” he added, with more than just a hint of a threat, “you will throw the equilibrium into disequilibrium, which may make the situation unmanageable.” Put another way, overturn the applecart at your peril.
This raises interesting questions for the evolving parliamentary democracy to grapple with. How, in particular, are the parliamentary committees — many of which are finding, to their obvious delight and surprise, that they really do have the power to change legislation — to respond to fait accompli deals struck by the major stakeholders in society? Should they tacitly accept that mediation and conciliation — the modus vivendi of the new South Africa — should constrain their fast evolving system?
This would appear to be the approach of Oliphant, who responded to the joint call of business and labour for the Bill to become law this year rather than next, by saying that “we understand your joint approach and you have the commitment of the committee to respect it”. The committee, he added, would look at the bill as “legitimately as possible”, which can be construed in more ways than one.
Or, in recognition of the fact that the parliamentary committee system is the coal face of the new parliament, the place where it really happens, should they adopt the role of the true guardians of parliamentary sovereignty? As another member of the committee stated, “we want to have a Bill that Parliament is proud of as well. We want, therefore, to look at it properly, because we can’t be seen to be rubber-stamping the Nedlac agreement.”
This is the right approach. Nedlac has an important role to play and, as the Labour Relations Bill agreement demonstrates, it is already playing it. But it is not a substitute for Parliament. Parliament, and Parliament alone, has the absolute authority of the people of South Africa. The power of parliamentary scrutiny, and complete access to the process, must be unconstrained. As a new wave of quasi-parliamentary and quasi-autonomous organs begin their work, this important principle should not be lost sight of in the rush — expedient or otherwise — to transform South
Richard Calland is Manager of the Parliamentary Information & Monitoring Service (PIMS) at Idasa’s Public Information Centre