Ramaphosa must send NHI bill back - The Witness

Anthea Jeffery

The IRR has petitioned the president not to sign the National Health Insurance NHI bill of 2019 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 and by the National Council of Provinces NCOP on December 6. 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 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 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 23465 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 flagged.

The NCOP's initial intent was to adopt the bill on November 29. An appeal for reconsideration by Business Unity South Africa and Business 45A prompted a week's postponement. When the NCOP met again on December 6, 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 these in 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 wording of the bill. This approach ignored all the 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 ConCourt 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 prehearing 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. The legislature has repeatedly brushed aside all the comprehensive data and analysis put before it.

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, Ramaphosa cannot lawfully give his assent to the bill. He is constitutionally obliged to send it back to Parliament so that it can be cured of all its procedural defects and substantive shortcomings.

Anthea Jeffery is the Institute for Race Relations senior policy researcher.