Don’t sign NHI Bill into law, IRR urges Ramaphosa
15 December 2023
The IRR has petitioned the president not to sign the National Health Insurance (NHI) Bill of 2019 (the Bill) into law, but rather to refer it back to the National Assembly for reconsideration.
Under section 79 of the Constitution, the president cannot give his assent to a bill if he ‘has reservations about its constitutionality’. Instead, he must send it back to the National Assembly so that its defects can be cured.
The NHI Bill was adopted by the National Assembly in June this year and by the National Council of Provinces (NCOP) on 6 December 2023. However, both houses of Parliament failed to ‘facilitate public involvement in the legislative process’ on the Bill, as the Constitution requires.
The Constitutional Court has struck down several statutes for a lack of proper public consultation. In doing so, it has clearly explained the consultation standards that Parliament is expected to meet.
The Court has repeatedly stressed, for example, that legislative timetables cannot be allowed to trump the constitutional right to proper public consultation. But President Cyril Ramaphosa vowed in September 2023 that the NHI Bill would be adopted by the end of November – and the NCOP seemed determined to meet his deadline.
Hence, whereas the National Assembly spent three-and-a-half years considering the Bill, the NCOP gave a mere six months to it. The NCOP also refused to allow oral presentations and gave short shrift to the 106 written submissions sent in to it – to say nothing of the 23 465 submissions made to the nine provincial legislatures. It also declined to make any changes to the text, even to accommodate technical improvements the Department of Health had earlier flagged.
The NCOP’s initial intent was to adopt the Bill on 29th November, within the timetable set by the president. An appeal for reconsideration by Business Unity South Africa (BUSA) and Business 4SA (B4SA) prompted a week’s postponement – but when the NCOP met again on 6th December it seemed determined to brook no further delay. Instead, ANC MPs swiftly adopted the measure while hailing the Bill as ‘an unstoppable train’.
Earlier, when the Bill was before the National Assembly, the portfolio committee on health disregarded most of the roughly 339 000 written submissions it received. Some 283 000 of these submissions were seemingly discounted as ‘accompanying’ submissions or petitions – often, presumably, with much the same content – even though the people who sent in these documents saw them as reflecting their own views and wanted them to be taken into account.
The remaining 56 000 or so written submissions were also largely ignored by focusing solely on their ‘clause-specific’ comments on the detailed wording of the Bill. This approach ignored all the pressing problems not captured in that wording – particularly the vital questions of what benefits the NHI would cover, what these would cost, and how they would be financed with tax revenues so limited and public debt so high.
The Constitutional Court has also laid down clear criteria with which all public hearings on proposed bills must comply. As stated by the Court in the Mogale case, Parliament must ensure that invitations are sent out well in advance of public hearings; that at least seven days’ notice is given of each event; and that people are provided with pre-hearing information that accurately describes a pending law without ‘misrepresenting’ its content or ramifications.
The public hearings on the NHI Bill – whether organised by the National Assembly or later by the NCOP – generally failed to comply with these criteria.
In the Mogale case, the Court further stressed that those commenting on bills must be able to ‘influence the decision to be taken’. This criterion has also been ignored, with Parliament declining to make any significant changes to the Bill. Instead, the legislature has repeatedly brushed aside all the comprehensive data and considered analysis put before it and allowed its pre-conceived notions to prevail.
Both the National Assembly and the NCOP have breached their constitutional obligations to facilitate public involvement in the legislative process on the NHI Bill. For this reason alone, Mr Ramaphosa cannot lawfully give his assent to the Bill. Instead, he is constitutionally obliged to send it back to Parliament so that it can be cured of all its procedural defects – and a host of substantive shortcomings too.
Statement issued by the IRR, 15 December 2023
