In February 2024, the Oversight Summit organised by the South African Legislative Sector analysed the topic of monitoring the implementation and impact of laws to improve oversight. Dr Maria Mousmouti gave a speeah on post-legislative scrutiny and on the role of Parliaments. Maria Mousmouti is a lecturer for the Jean Monnet Chair on Better Regulation.
The Deputy Speaker of the National Assembly, Mr Lechesa Tsenoli, believes evaluating and assessing laws passed by Parliament should be a continuous process and one of the national legislature’s key tasks.
Participating in a discussion about the importance of monitoring the implementation and impact of laws to improve oversight during the Oversight Summit organised by the South African Legislative Sector in Cape Town, Mr Tsenoli said it was important for Parliament to follow up on the impact of legislation after it is signed into law.
The discussion on this topic on the second day of the summit was led by Dr Maria Mousmouti, of the Westminster Foundation for Democracy and executive director at the Centre for European Constitutional Law. She began her presentation on post-legislative scrutiny by stating that parliaments’ roles do not end with the adoption or passing of legislation.
“For many years, parliaments would say we have passed so many laws and that was considered proof of how much they worked. This is no longer the case. Now parliaments engage more and more with what is happening after legislation has been passed to monitor impact and decide what needs to be changed,” Dr Mousmouti explained.
Legislative oversight is a way of assessing impact and seeing if legislation passed is meeting it objectives. Such oversight is also an opportunity to see if the legislation is responsive to the problem it tries to regulate, she said. In fact, Dr Mousmouti suggested that evaluating and assessing legislation is the only way to know whether laws are good laws or not and whether they are effective.
She also advised that that post-legislation scrutiny should not be the responsibility of just one institution of state – Parliament. Rather, it should also involve the executive, who are the implementers of the laws; experts, who know about law; as well as citizens, who are the subjects of the law.
“It is Parliament’s role, as the body that has constitutional mandate to legislate, to follow up what happens with legislation after enactment. Post-legislation scrutiny can be a positive contribution to strengthening the role of Parliament in relation to legislation,” Dr Mousmouti said.
Responding to Dr Mousmouti’s presentation, Economic Freedom Fighters’ Member of Parliament Mr Mogamad Paulsen supported post-legislation scrutiny and added that it must not be a desktop exercise but rather it should be participatory and involve all relevant stakeholders. “It should be empirical, anecdotal. We should engage our constituencies as to how the laws that we make have impacted on their lives, because they could have unintended consequences,” explained Mr Paulsen.
He gave the example of the Marine Living Resources Act, which was passed in 1998 and which was later challenged in court for disadvantaging small-scale fishermen and subsistence fishing communities. These groups argued that if post-legislation scrutiny had occurred, the problems with the Act could have been identified earlier and addressed through an amendment to the legislation.
In 2015, the Speakers Forum established a High Level Panel (HLP) on the Assessment of Key Legislation and Acceleration of Fundamental Change. A report with key findings and recommendations was submitted to the Speakers Forum.
By Abel Mputing
1 February 2024