MUNICIPAL SYSTEMS BILL

CHAPTER 3: PUBLIC PARTICIPATION

A RESPONSE BY DPLG TO THE SUBMISSIONS MADE DURING THE PUBLIC HEARINGS HOSTED BY THE PORTFOLIO COMMITTEE

INTRODUCTION

The Department departs from the premise that says Municipal Councils must work with communities to ensure accountability, good governance, improved service delivery and sustainable development. This is generally in keeping with the local governance paradigm, which has been in phenomenal ascendancy in the international local government discourse in the past ten years. It is this paradigm that informed and framed the debates in conceptualising the position and role of local government during the White Paper process. An attempt was, consequently, made to institutionalise this paradigm during the process of crafting the Municipal Structures Act by way of having provisions dealing with public participation. An agreement was reached, however, to hold the issue over for the Municipal Systems Bill process. This Bill is therefore an attempt to create a regulatory framework within which the public can meaningfully interface with local government structures.

At the public hearings, different organisations raised a number of questions and proposals on this chapter. These could broadly be organised into four categories, namely; the concept of participation, forms of participation, management of participation and duties of Councils in promoting participation. This submission will therefore pick on issue raised using this as a frame of reference.

THE CONCEPT OF PUBLIC PARTICIPATION

The key question asked in this regard was what is the Department's theory or conception of participation. In other words, what theoretical framework informs our approach to public participation. A number of theories have been posited to frame these kinds of debates. These range from classical pluralist and elitist theories to contemporary representative and participatory theories of democracy. These theories have been utilised to explain power relations as represented in the interface between the state and non-state actors.

The pluralist theory contends that society is made up of organised interest groups that contest for various things at different times and the battle is won by the strongest interests. This approach assumes the dispersal of power that oscillates between powerful groupings at different times. In the context of local government this approach suggests that municipalities are constantly in contest for power with organised groupings and that their decisions are a product of co-determination with other powerful interests. The elitist theory proposes that society might be made up of organised interests but the state, that has the authority, dominates at all times. In other words, even though the state interacts with these interests, it still retains considerable power to decide inspite of persuasions of all kinds. This is a control-oriented form of participation.

The basic tenets of contemporary theories of representative and participatory democracy are, in many ways traceable from the classical theories dispensed with above. The representative democracy assumes that it is enough to participate by way of casting a vote. That is, those elected have the right to govern on their own as they have been given a mandate by the electorate. It argues that those who have been elected are acting on behalf of the citizens or communities and that it is not necessary to actively interact with them.

On the other hand, participatory democracy asserts that voting cannot be enough as a form of participation. It argues that those in power, still have to interface with the electorate to solicit their opinion on various issues on a continuous basis to ensure continued accountability, transparency and good governance. In other words although the authority of those elected is recognised and acknowledged, it remains crucial for them to create an environment of exchange with local interests without usurpation of power.

The pluralist approach is correct to the extent that it argues that society is made up of organised interests but it does not properly capture the power - relations between local government and these interests. The local government structures are elected bodies with political authority to make decisions not necessarily in consultation with these interest but after consultation. The elitist approach is helpful only to the extent that it recognises the authority of the state bodies as elected entities with decision-making powers. It however falls short in suggesting that the state can wilfully ignore the views of the interest groups and make decisions. The representative democracy approach is also correct in noting the authority of the elected people but it tends to exaggerate their power and shun participation. The participatory democracy approach seems to recognise the authority of the elected people but also the significance of continued interaction with the public.

The participatory democracy approach is the one that informs our concept of public participation. This is as expressed in the introduction of the Chapter (Clause 7). It is the Department's view that Municipal Councils are elected bodies and therefore have the right to govern the affairs of the municipality. We however insist that in governing, the municipal council must facilitate processes of interaction with local interests to solicit opinions and ensure accountability on a continuous basis. It is however the view of the Department that this interaction should still allow the Council to make final decisions having due regard other views. Therefore in our view public participation cannot become an endless exercise and decision-making cannot be an exercise of co-determination between Council and local interests. In other words, local interests have a right to express opinions but the Council has a right to decide.

FORMS OF PARTICIPATION

A number of submissions made several points in this regard. These include the charge that our notion of forms of participation is narrow and that the Chapter simply confirms current conventions in participatory approaches.

The forms of participation is an issue inextricably linked to matters around which participation has to happen as well as who participates. This is an important premise because the form of participation is dependent upon the kinds of issues that are involved and in turn these inform the nature of engagement by various interest groups.

In relation to matters around which participation has to happen, various submissions raised points like, there is a need to agree on a framework that determines the issues around which participation must be mandatory and so on, show how public participation is infused into Chapters like IDP's and PMS, develop a framework of how subject areas link to different role-players and therefore shape forms of participation.

With regard to the issue of who participates, the submissions raised concerns like there is no internal consistency in the application of terminology in the Chapter, there is a tendency to assume equality of power and rights for different interest groups and that there is a bias towards groups over individuals.

There is therefore a need to develop a framework that builds linkages between these issues with a view to further the clarify forms of participation envisaged. The issue of subject areas around participation happens is a good starting point for it will help clarify who participates and in what forms should participation happen.

The issue raised above are valid and important. The Bill has, however, dealt with some of the issues raised albeit not exhaustively and not in so many words. First, Clause 7(b), highlights some of the areas around which participation should happen. It however does not expressly make these mandatory but refers to them as some of the issues to be taken up as the public engages. There is a need to isolate issues for which participation is mandatory.

Second, the assertion that participation is not visibly carried through into the IDP and PMS Chapters is partly true. The PMS Chapter does not articulate the role of different roleplayers in respect of various elements of the proposed system. The IDP Chapter does express the role of local stakeholders in Clause 25. It is however important to note that this is only limited to the process of developing IDP's. The chapter is rather silent on the role of stakeholders in implementing and reviewing the IDP's as expressed in Clause 7(b). The latter element (review) could easily be understood as a subset of Performance Management. There is therefore a need to carry the provisions of Clause 7(b) throughout the Bill and in particular the Chapters on IDP's, PMS and Municipal Services. It is also true that there is a need to develop a framework that links areas around which participation should take place to different roleplayers and therefore explain forms of participation.

The observation that there is no internal consistency in the application of the terminology especially as it refers to roleplayers is true. There are significant definitional differences in the use of terms like the public, community, citizen, resident, ratepayer and stakeholder. The differences are by and large a function of the scale of application, matters involved and rights of different categories of participants. There is however a tendency to confuse the use of terms (eg community and service groups NGO's) be silent on the reference to certain categories (eg citizens) and be silent on the definition of other categories (eg public and stakeholder). This accentuates a need to develop a framework that provides a common dictionary of terms, identify matters around which participation should happen, clarify the role of different categories of roleplayers and the different forms of participation.

In line with this, the Department would like to put forward the proposals on the following:

DEFINITIONS

"Public" - relation to relation to a municipality

Any individual or organisation in the country with an interest in any applicable matter concerning a given municipality.

"Citizen" - in relation to a municipality

Any individual with citizenship rights and duties in terms of Clause 3 of the Constitution, the Bill of Rights and any applicable national legislation and who has an interest in any applicable matter concerning a given municipality.

"Community" - in relation to a municipality

Include any locally based organised group of stakeholders involved in local affairs within a municipality and concerned with the protection or promotion of interest specific to that group. (This definition will include religious, sport, rate-payer, business groups etc).

"service organisations:"-

Any locally based and non-profit organisation, branch or affiliate concerned with supporting the municipality, communities and residents on policy and implementation matters.

"resident"

As defined

"ratepayer"

As defined

The definitions above assist to set a framework for determining forms of participation. Clearly the municipalities should have obligation to its local citizens residents and ratepayers, communities, service organisations and members of the general public in that order. This is a hierachy of rights approach. In reality, though, the nature of interaction between the municipalities and these groups and the application of rights is dependent upon the matters involved. It is therefore important to look at matters involved, rights for participation by stakeholders and forms of participation.

To start with, the Department would propose that over and above participation in the elections municipalities must ensure participation in the identification of needs, determination of strategic priorities, allocation of financial resources (IDP's), monitoring and review of performance (PMS), policy and legislative development and dealing with internal matters as prescribed in law (eg labour disputes). These are non-negotiables. The municipalities may want to invite participation on other areas as well.

Below is an attempt to present a framework dealing with the issues raised above.

MATTER

PARTICIPATION RIGHTS

STAKEHOLDERS

FORMS OF PARTICIPATION

Municipal elections

The right to vote

Locally based citizens, residents, rate-payers qualified in terms of the Municipal Electoral Act

Vote

IDP's

The right to express opinions in Council meetings and processes identify needs, determine priorities, allocate resources, set standards and KPI's

Locally based citizens, residents, ratepayers, communities as individuals or organisations., Service organisations and the public who may be non-citizens and non-resident do not have automatic right but can only participate if invited.

Consultation

 

The right to make written submissions or inputs into the process.

All of the above plus locally based service organisation and the general public.

- Public submission

- Information sharing

PMS

The right to express opinions in Council meetings and process to set standards, KPI's, monitor and review performance.

Same as IDP's

Consultation

 

The right to make written submissions or inputs into the process.

Same as IDP's

- Public submission

- Information sharing

 

The right to provide general feedback on services delivered by a municipality through written comments, suggestion boxes

Anyone with an interest in the affairs of the municipality

Public submissions and information sharing.

Petitions and memorandums

 

 

Policy and legislative development

The right to express opinions in Council meetings, structures or processes to develop policies and by-laws.

Locally based citizens, residents, ratepayers communities and stakeholders as individuals or organisations. The service organisations can only have a right as stakeholders affected by the policy or law in question. Otherwise they together with the public who are non-citizens, and non resident can only participate subject to invitation.

Consultation

 

The right to make written submissions

As in IDP's/PMS

Public submissions

Information sharing

 

The right to provide feedback on Council policy on an ongoing basis

In anyone with an interest in the affairs of the municipality

Public submissions

Petitions

Petitions and memorandums

Internal management issues

The right to heard on labour relations

Individuals and members of labour unions and unions themselves

Consultation

The framework above deals with matters around which participation has to happen, participation rights of different roleplayers and forms of participation envisaged. This framework should inform provisions of the Bill. The Department will attempt to review the Bill using the framework. It is however important to note that the Department titled the Chapter "public participation". This was a deliberate move as the public includes anybody who is outside and within the municipality at a given time. The use of the word "public" is consistent with the view that all the roleplayers are ultimately members of the public.

A question has also been raised that the Bill seem to be in favour of organised rather than individual participation. This is not entirely true for the Chapter consistently refers to individuals and organised groups. However it is our view that it is not necessarily a bad thing to favour organised participation for a whole range of reasons including, manageability considerations for municipalities. The other issue raised is the fact that the interests of marginalised groups tend to be ignored by the Bill. This is not entirely true because the Bill places an obligation on Municipalities to ensure participation by disadvantaged groups (Clause 8). However the framework above invokes notions of citizenship and thus impose a further obligation on municipalities to ensure that all citizens enjoy citizenship rights. How this will happen is a challenge to municipalities.

The two latter points lead to the next set of issues namely; management of participation and duties of municipalities in promoting participation.

MANAGEMENT OF PARTICIPATION

A number of issues were raised in this regard. First, is the issue of closure of meetings to the public. There are numerous variables to this but the key point made is that municipalities should not close meetings to the public. The Bill makes provision for Council meetings not to be closed unless it is necessary to do so and if so the Council should notify the public in advance. The Bill also says that Exco may close all of their meetings. The Department believes that the provisions should remain as they are because Exco operates more like Cabinet and in line with the principle that political leadership of Council have the right to make decisions, having due regard to other opinions, we think the provision is correct. It is also important to note that the Bill still makes it possible for the public to participate depending on Council's decisions. We therefore think that the provisions have struck the right balance between the rights of the public and those of Council.

The Department would however agree that there is a need for a clause that deals with the end-point of participation as it cannot be an endless excerise. We also recognise that there has to be a clause dealing with feedback aspects of participation as well as the rights of the public during Council meetings.

DUTY OF MUNICIPAL COUNCIL

Questions raised in this regard relate to the role of Council in promoting participation of the disadvantaged groups, in building Capacity of roleplayers and in funding roleplayers.

As alluded to earlier, the Bill provides for municipalities to find mechanisms to ensure participation of women, the disabled and the poor. This is a sufficient provision. The only thing left is to develop indicators that measure the extent tot which municipalities are succeeding. Similarly there is a provision dealing with the obligations of the municipalities to building capacity of the disadvantaged groups.

The issue of funding is a complex one. On the one hand people are saying a provision like that will burden municipalities and on the other they say an obligation should be placed on municipalities to fund participation. The position of the Department is that the benefits of participation are worthy of an investment by and therefore municipalities. We would however like to leave funding strategies and mechanisms to local government. The Department would therefore recommend that a clause dealing funding of participation be considered strongly. It could have a qualifier that says " within its financial capacity".