Ensuring Citizens and Civil Society A Say In ‘Big Business Politics’ Before Multinational Companies Come To South Africa And Deals Are Sealed
It is no secret that “[j]ustice is not achieved by enforcing law and order, but by creating a just society whose members are assured of the opportunity to realise their human potential” – as Hendrik W. van der Merwe writes in his book ‘Pursuing Justice and Peace in South Africa’. Whereas the law is an instrument, which can be used in an attempt to mobilize, restore or preserve justice, justice ultimately marks an act of balance and all kinds of laws have to keep being revised with regard to their effects and socio-economic and political circumstances in order to exercise a positive impact on the safeguarding of human rights and livelihoods at large. Despite that various definitions of justice such as distributive, procedural and restorative justice have been well-known by lawyers, policy-makers and civil society, their incorporation in various types of law and in different jurisdictions will have to keep being monitored and debated continuously based on the fact that the law is only capable to restore justice, where it adequately and effectively serves the actors who mobilize and utilize it.
As Van der Merwe reemphasizes, there arguably is a “stable peace”, which coexists with real justice and fairness probably in the Rawlsian sense, and there is an “apparent peace”, which marks a state wherein ‘“law and order’” are unaccompanied by justice. In Rawls’ words, “[t]he idea of a well-ordered society is plainly a very considerable idealization” and under the motto of his theory, pursuing “justice as fairness” requires one to understand that (re)distribution must always be based on the virtue of equality, unless inequality can bring about benefits for all affected parties of a certain policy or law. And whereas Rawls’ idea of justice is probably be best captured through the term distributive justice, South Africa’s ‘Just Transition Framework 2022’, which was established by the country’s Presidential Climate Commission and with the help of representatives from the government, business, academia, civil society and labour unions, also addresses the relevance of procedural (i.e. autonomy of local communities) and restorative justice (i.e. redress for historical injustice, discrimination and inequality).
What the latter plan however does not address is that different, emerging and ever more important understandings of justice (i.e. indigeneous and community justice, environmental justice, food justice, trade justice etc.), all of which inhibit a ‘social’ element, might have to be more strongly incorporated in and/or reflected by various laws. In 1976, David Miller claimed that legal justice holds itself busy with “the punishment of wrongdoing […] through the creation and enforcement of a public set of rules (the law)”, whereas the researcher propagated that social justice occupies itself with “the distributions of benefits and burdens throughout a society”. It might be this binary understanding of justice, which will have to be rewritten even more explicitly in the upcoming decades, because the erosion of democracies across the world points towards the argument that trade, business and investment-related laws have not incorporated the morals of social and (re)distributive justice enough. While South Africa was criticized and warned to be set on the grey list of the Financial Action Task Force (FATF) in September 2022 based on the financial crimes of its former President Zuma as well as state capture per se, it was also criticized by Mining Affected Communities United in Action (MACUA) for “caring more about multinational companies than mining communities”.
What the latter might underline is that both Rawls’ argument about the occasional fairness of inequality as well as Miller’s dichotomous understanding of legal and social justice are somewhat flawed. While punishments should undeniably maintain a tool of the law, it would be a failure to keep putting the emphasis on persecuting economic crimes, where they relate to state capture and political corruption as long as there is no legal system in place, which (re)democratizes certain (socio)economic and ‘big business’-related decisions before they are made. As Seroala Tsoeu-Ntokoane, Moeketsi Kal and Xavier Lemaire emphasize in their 2021 article ‘Energy democracy in Lesotho: Prioritising the participation of rural citizens’, “citizen participation in decision-making is becoming a pivotal route to sustainable development” and democratic participation in energy-related matters must include local and rural communities, who have traditionally in been marginalized. As Ambale et al. add, one opportunity to (re)democratize the energy sector in Sub-Saharan Africa (SSA) could be the establishment of energy communities as they are found in the Global North, however, with more in-depth legal and/or policy-frameworks in place. Energy communities, as the researchers continue, allow for local self-organization, open and voluntary citizen and multiple stakeholder participation.
And whereas this article does not exclusively aim to address the involvement of citizens in renewable energy-related decisions through energy communities, which could indeed allow for democratic participation with regard to local energy business decisions, it intends to utilize this concept to make the claim that the establishment of strong energy, sustainable, smart and/or participative communities in South Africa could be connected with their active involvement in community-level and regional business decisions, including with regard to the involvement of foreign and multinational companies in South Africa. Rather than allowing politicians to make top-down decisions that have a huge impact on South Africa’s energy, sustainable and digital future, bottom-up participation should actively be encouraged and fostered. In 2021, South Africa was divided into 257 municipalities, all of which “are tasked with ensuring that communities across the country receive a variety of services”, which hints at the fact that it would have to be discussed, how pre-existing communities could be involved, to start with, in the set-up of energy communities which “come in all shapes and sizes” but have proven to be the most effective in the Global North, where local governments got involved, as ICLEI – Local Governments for Sustainability writes.
It would later also have to discussed whether it is a good idea to combine the establishment of energy communities in South Africa with the fostering of sustainable, smart and/or participative communities, which would have certain legal rights with regard to ‘big business’-decisions and, especially, the involvement of multinational and foreign companies in their respective local communities and politics. Based on the above-mentioned gap in business, trade and investment-related laws, that is to say – the failure to involve citizens in large-scale business decisions by legal means, which is illustrated through South Africa’s long-delayed and yet lacking Draft Public Procurement Bill B-2020, it might indeed make sense to foster stronger communities, also, to break with historical to present spatial inequalities. As David Fourie and Cornel Malan argue in their 2020 article ‘Public Procurement in the South African Economy: Addressing the Systemic Issues’, South Africa has made efforts towards the inclusion of historically disadvantaged persons (HDPs) by considering the Broad-Based Black Economic Empowerment (B-BBEE) score of businesses in public procurement decisions. However, beyond that it has a lot to improve, especially since public officials have been criticized for being unqualified with regard to carrying out strategic procurement over transactional procurement.
Different from transactional procurement, strategic procurement “acknowledges the significance of ensuring added value across each stage of the procurement process”. While the research of Fourie and Cornel hints that South Africa’s public procurement system should be more centralized to be effective along the lines of the OECD’s recommendations on efficiency in public procurement, this centralization should not stand in the way of civic participation in public procurement. Currently, the Draft Public Procurement Bill B-2020 seeks to moralize the behaviour of the State so that the latter…
- (a) […] utilises and leverages procurement to
- (i) advance economic opportunities for previously disadvantaged people and women, the youth and people with disabilities small businesses; and
- (ii) promote local production;
- (b) provide for procurement that—
- (i) is developmental in nature;
- (ii) ensures value for money in the use of public funds;
- (iii) aspires to expand the productive base of the economy;
- (iv) supports innovation and investment and achieve economy, efficiency and maximum competition;
- (v) uses technology to simplify procurement processes and better leverage economies of scale.
Whereas the above-mentioned requirements from public procurement put an emphasis on the necessity that the latter promotes economic growth, innovation, investment, competition, inclusion, and local production, the Draft Public Procurement Bill B-2020 does not address the issue of civic participation in impactful public procurement decisions despite its awareness about the possibility of corruption among public officials. Establishing large-enough ‘participative communities’ that could be consulted before making important procurement decisions next to qualified researchers and professionals, who can assist public officials with strategic procurement decisions, and enshrining the rights of such communities in the Draft Public Procurement Bill B-2020, could mark a step towards the (re)democratization of public procurement and ‘big business’ in South Africa. In general, the establishment of communities, which are legally entitled to certain kinds of participation at, depending on their size, local and/or regional level, and indirectly at national level, should serve to restore a “stable peace” as Van der Merwe described it. Rather than addressing certain types of justice separately, laws should be revised with a view for various types of justice and their respective mobilization by various actors.
It is simply not enough to mention the rights of certain groups in the law, when aiming to promote inclusion. Finding new and innovative forums for democratic and inclusive participation that are acknowledged by and written down in the law, is of crucial importance to ensure that citizens and local community members have an influence on their livelihoods and environments. As early as in 2007, the International Labour Organization (ILO) indirectly addressed this matter, when it published information about a ‘Community Contracting Approach’ as part of its Somalia Programme. Following the publication, “[c]ommunity contracting is a procurement tool empowering communities by ensuring they have an executive role in the identification, planning and implementation of development initiatives”. Whereas the focus on ‘development initiatives’ is unique to the 2007 ILO approach, it is undoubtedly imaginable that such an approach can also be applied to public procurement decisions. Whereas the ILO’s approach intended to address and change a development paradigm, which granted NGOs and other stakeholders more decision rights than the local population, the approach could be used in public procurement to demand government and state accountability.
As the ILO describes, in their Community Contracting Approach local communities are treated as the “‘contractor’” and the funding agency as the ‘“client’” so that the first gain confidence whenever they make their ‘political’ and ‘business’ decisions. The community is thereby represented through a community committee and the local authority bears an oversight role. As a brief reminder, the ILO’s approach was entangled with the aim to avoid NGOs and other stakeholders from reenacting top-down development-related decisions like colonialists. ‘Community justice’ in South Africa might instead be conceptualized in a more in-depth manner. First, this is the case because it would need to be discussed how large ‘participative communities’ would be. Their representation through a community committee might in any case stay an unrealistic imagination, however each community could cooperate with a regional research institution, which is tasked with reaching out to citizens through surveys, networks with CSOs and NGOs, labour unions and, where applicable, other stakeholders. Second, to prevent elitist behaviour on the sides of public officials and political corruption, such a research institution and local organizations should possess an oversight role alongside a responsible community-level administration.
To sum up, the establishment of, at the least, ‘participative’ communities and their active legal and community-level involvement in certain business decisions would be aimed at achieving ‘community justice’. Whereas the latter term would have to be defined in more detail by communities, CSOs, NGOs, policy-makers and other stakeholders, it is – in essence – based on the idea that legally entitling and promoting democratic participation in public procurement and business, which may go as far as including business partnerships that would traditionally not fall under public procurement, is a way of preventing that certain types of justice will be needed (i.e. spatial, racial, justice, gender justice etc.). Nowadays, when businesses have a huge impact on individual livelihoods and politics, there is arguably an increased need to include citizens in politics. It could be through the interactions between ‘participative communities’, CSOs, NGOs, labour unions, research institutions and the local administration, that laws could also be more thoughtfully revised. In general, as Moses Retselisitsoe Phooko points out, South Africa’s “constitutional democracy can be characterized as both representative and participatory in its nature”. The researcher argues that including citizens in the ‘business’ of the state and in law-making would take too much time and be rather complicated. Maybe this could be turned around by the establishment of ‘participative communities’, at least, over time.
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