Constitutional Court finds Parliament failed in public participation process
Image: Kamogelo Moichela
The Constitutional Court, in an unanimous judgment, found that Parliament failed to comply with its constitutional obligation to facilitate a reasonable public participation process in the appointment of new members for the Commission for Gender Equality (CGE).
Corruption Watch, which launched this application, submitted that the public participation process was defective due to insufficient information on the shortlisted candidates being made publicly available. Furthermore, they submitted that the opportunity for public participation was restricted to 2,000 character submissions and only 14 days were provided for written submissions. Corruption Watch contended that the opportunity for public participation was unreasonable and inadequate.
It also argued that the Portfolio Committee misinterpreted the Protection of Personal Information Act (POPIA), leading to unnecessary restrictions on candidate information. In doing so, the Portfolio Committee wrongly concluded that POPIA permits only the sharing of minimal information, it said.
The Speaker, on behalf of the National Assembly, submitted that the opportunity it provided for public participation in the recommendation process was reasonable and defended the 14-day period as sufficient, citing past appointment processes.
The Speaker also submitted that the Portfolio Committee properly considered all public comments before making recommendations and that withholding full CVs of the shortlisted candidates was in line with POPIA, as consent was required before publicly sharing candidates' personal information.
The Information Regulator submitted in an explanatory affidavit that consent is not required if the processing of that information is necessary for public duties. It supported Corruption Watch in stating that POPIA does not prevent the Portfolio Committee from fulfilling its constitutional mandate to ensure public involvement in legislative and 'other processes'.
Media Monitoring Africa, which joined the proceedings as a friend of the court, submitted that effective media reporting is crucial for transparency and public engagement and also contended that the Portfolio Committee's failure to publish candidates' CVs hindered the media's ability to act as a watchdog, restricting the public's right to access information and meaningfully participate in the appointment process.
The court held that the mechanisms adopted by the Portfolio Committee to facilitate public involvement in the appointment of commissioners to the CGE failed to allow for effective public participation.
It said that while a court must take due cognisance of what the National Assembly chooses to do to facilitate public involvement, the assessment of what was done is an objective one. In this instance, the National Assembly acted upon an interpretation of POPIA which was manifestly incorrect, rendering the conduct unreasonable.
This, coupled with the short period allowed for public comments and the restriction on such comments, materially affected the appointment process as a whole. In the circumstances, the appointment process conducted by the National Assembly did not comply with the obligations imposed by the Constitution and is therefore invalid, the court found.
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