Following the two landmark Supreme Court decisions on a public interest petition rendered this year on anti-constitutionality of some provisions of law nº68/2018 of 30/08/2018 determining offences and penalties in general and the most recent ruling on Article 19 of Law n°75/2018 of 07/09/2018 determining the sources of revenue and property of decentralised entities, where the Court invalidated Article 19—which says “the tax rate determined by the District Council per square meter of land in accordance with the provisions of Article 18 of this Law is increased by fifty percent (50%) applicable to land in excess to standard size of plot of land meant for construction of buildings”—as being inconsistent with the Rwandan Constitution.
It is, however, worth stressing that the preceding Supreme Court decisions are fundamentally important in a sense of public interest. That’s to say, adequate consultative engagement of public is vitally important.
In other words, public consultation is one of the key regulatory tools employed to improve transparency, efficiency and effectiveness in law-making. It’s a healthy tool, which helps in doing regulatory impact assessment to ensure that a certain law would serve the general interest.
Public consultation can also be described as a formal process which public authorities use to seek information and views from individuals and organisations on an existing law or proposed law. In fact, a consultation process implies an active role effort on the part of public authorities to reach out to, and engage with, all potentially affected parties.
To avoid or minimise challenging laws in force, it’s worth considering the Organisation for Economic Co-operation and Development (OECD) three core elements on public consultation.
First is notification. This is to do with communication of information on regulatory decisions to the public, and it is a key building block of the rule of law. It is a one-way process of communication in which the public plays a passive consumer role of government information. Notification does not, itself, constitute consultation, but it’s a first step. In this view, prior notification allows stakeholders, including law firms, the time to prepare themselves ahead of consultations.
Second is consultation. It involves actively seeking the opinions from the general public. In particular, it involves inviting submission of opinions on a particular draft law, or proposed amendment; holding public hearing explaining the objective of the proposed draft law or amendment; consulting relevant stakeholders, including Rwanda Bar Association or individual law firms; and perhaps consulting experts on that subject matter.
How would this be relevant?
Public consultation is an important tool for ensuring that the proposed legislation will be effective in achieving its goals, well written and fully understood by the general public, which it intends to serve, and crucially fully complaint with human rights obligations.
It is a two-way flow of information, which may occur at any stage of regulatory development from problem identification to evaluation of existing regulation.
Third is participation. It is the active involvement of relevant stakeholders in the formulation of regulatory objectives, policies and approaches, or in the drafting of regulatory texts. Participation is usually meant to facilitate implementation and improve compliance, consensus, and political support.
If relevant authorities offer a chance to stakeholders a role in regulatory development, implementation and/or enforcement in circumstances in which they wish to increase the sense of “ownership” of, or commitment to, the regulations beyond what is likely to be achieved via a purely consultative approach.
On the whole, public consultation is essential because laws should be developed in an open and transparent fashion, with appropriate and well publicised procedures for effective and timely inputs from interested nationals, such as affected business, trade unions, wider interest groups such as consumer organisations, or other relevant stakeholders. Consultation improves the quality of laws and also improves compliance and reduces enforcement costs for both government and citizens subject to laws.
Furthermore, public consultation increases the information available to government on which policy decisions can be based.
The use of other policy tools, particularly regulatory impact analysis, and the weighing of alternative policy tools, has meant that consultation has been increasingly needed for collecting empirical information for analytical purposes, measuring expectations and identifying non-evident policy alternatives when taking a policy decision.
To sum up, public consultation has become one of the best tools to achieve relevant laws, which perhaps pragmatically address societal challenge. It is a platform, which brings into the discussion the expertise, perspectives and ideas for a proposed law to achieve its goal. It also enables law-makers and other relevant authorities to balance opposing interests.
Additionally, public consultation is indeed an ideal opportunity to identify unintended effects and practical problems. If notification is sufficiently done, then it’s possible to foresee more easily the consequences of the planned law, as well as to identify interaction, or possible overlapping, between proposed draft law and other existing laws.
A lack of adequate public consultation will often trigger public interest-related cases, which invalidate existing legislations. The Supreme Court ruling on law nº68/2018 of 30/08/2018 determining offences and penalties, in general, became an eye-opener to many.
The writer is a law expert.
The views expressed in this article are of the author.