Public Hearings

 THE DEONTOLOGY.

(Study the law with Blessed Mupatsi).

Over the past months l have had an opportunity to attend public hearings for Bills, City Council budgets and the Constitution of Zimbabwe Amendment (No.2) Bill, 2019 which has a negative impact on our democracy (see https://lawstudentszim.blogspot.com/2020/08/constitution-of-zimbabwe-amendment-no-2.html). For this deontology, l will explore at depth what public hearings are, examine their effectiveness and then lastly provide a feasible solution to short falls of these public hearings. 

The 2003 Public Hearings Guidelines define Public hearings as open committee meetings that are aimed at obtaining input from businesses, civil society organizations (CSOs), public officials and the general public about proposed or existing policies, Bills, regulations and other issues or changes that would significantly affect the public if introduced (emphasis). Essentially, the process of law making should be enriched with the results of deliberation (the communicative power). In essence, a public hearing requires a personal presence and allows for an interactive debate between the participants (negation of negation). Public hearings may take on diverse forms in this paper we focus on public hearings connected with the preparation of a Bill.

In Zimbabwean context, both public hearing and public consultations are used interchangeably different from other jurisdictions such as United States of America and Germany. The institutions of public hearings and public consultations must be perceived as the realization of postulates formulated by various doctrines of deliberative democracy. The Constitution of Zimbabwe Amendment (No.20) Act, 2013 (hereinafter the Constitution) explicitly mentions the need for public hearings in section 141 of the Constitution:

141. Public access to and involvement in Parliament

Parliament must-

1. Facilitate public involvement in its legislative and other processes and in the processes of its committees;

2. Ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable;

Therefore, Parliament is obliged to consult members of the public on the legislative process as failure to do so may result in laws being invalidated or scrapped by the courts of law. Non-compliance with peremptory provisions of the supreme law is not an option because the consequences of failure are too ghastly contemplate see section 167 (2) (d) of the Constitution. The Constitutional Court of South Africa in Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC) invalidated some Acts of Parliament that had been passed without public consultation. The fact that our constitutional provisions on public consultations are similar with the South African position Parliament thus has an obligation to undertake. The process of how notices of hearing are publicized and the procedure followed in these consultations is not of paramount momentous. 

Consultation is a meeting with a professional or expert for purposes of gaining information, or the act or process of formally discussing and collaborating on something. The interpretation on whether the term ‘consultation’ is binding or not differs however, l strongly believe this is the proper view to use especially for the constitution provision in quo. Post-hearing the Parliamentary committee will review the proceedings and draft a report on the gathered recommendations presented in the National Assembly the recommendations do not bind members of the National Assembly. Public hearings are mandatory but the observations are not binding however, the minor approach would suggest that there are binding, l for one do not conform to such findings. The purpose of legislative public hearing is to obtain public input on important policy matters that affect a wide range of citizens but the public input is futile, nugatory and not binding. 

One can argue that citizen’s voices are represented through members of parliament however, such submissions are quarantined from the truth. A parliamentarian pledges allegiances to two masters (emphasis) (i) the political party used during the general election and (ii) members of the constituency. Generally, with two masters one has supreme power in casu it is the political party. Political parties have a constitutional muscle provided in section 129 (1) (k) of the constitution to keep members of parliament within the party’s principles. Citizens that entrust these people with power have no tools at their disposal to ensure their voices are heard in government except to petition and demonstrate. The submissions are evidenced by the events in the Movement for Democratic Change-Alliance (MDC-A) led by Adv. Nelson Chamisa, in which parliamentarians shifted to the Douglas Mwonzora MDC-T without consulting voters fearing to be recalled. The facts apply mutatis mutandis to counsellors. 

Therefore, with such a position it is easy for bills to pass through law making bodies because legislatures fear being recalled. In recent months, a ZANU-PF Chiredzi West member of parliament Farai Musikavanhu supported the forced eviction of his people as it fulfilled his party’s Vision 2030. The government had planned to move 12 500 villagers from their Chilonga ancestral village for a grass growing project. One can conclude that a ‘block voting system’ is in use in Zimbabwe.  

The issue then becomes why waste State resources in conducting public consultation when our submissions are nugatory?. I am of the view that instead of using the legislative consultative approach we must adopt the dialogical participatory approach. In its simplest terms, a participatory approach is one in which every interested party is part of the decision-making. A true participatory approach is one in which everyone’s perspective is considered