MARIANNE MERTEN: No chit-chat can change the NHI

Nothing can change the National Health Insurance (NHI) Act unless parliament passes amendment legislation, no matter how many meetings President Cyril Ramaphosa may have with organised business and others. 

That is not to say Ramaphosa and his presidency are not keenly attuned to dissatisfaction — and the need to spin it. Health minister Aaron Motsoaledi’s “lump it” attitude has annoyed organised business, and that has been noted. Ramaphosa had a “long lunch” with his health minister, as he informed the National Council of Provinces (NCOP) last week: “I said to the minister, ‘We meet them.’” 

But a meeting is not a commitment to change. Far from it. Against continuing concerns about the NHI’s constitutional flaws, its revenue and potential sources of corruption in the centralised healthcare fund, Ramaphosa maintained in the same NCOP question-and-answer session that NHI was “a great opportunity”.

It was among his government of national unity (GNU) priorities as “one way of reducing the cost of living”, he told MPs. But because some people still had concerns, “I am open to talk about how this act will be implemented”. 

The president and his health minister have some wiggle room, and opportunities to score PR points. For example, the ministerial advisory committees on NHI healthcare benefits and health technology, which must be established in phase 1, could include organised business representatives as a gesture of inclusion.

But it’s really about politics. It’s the exercise of power to ensure compliance, and to control optics. A little like the GNU, with its dinners and technical committees. The silence on the NHI from one-time opposition parties once intent on litigation, such as the DA and IFP, is deafening. Less so regarding the Basic Education Laws Amendment Act.

But ongoing processes of engagement, which Ramaphosa has described as “a true hallmark of how I function as a president”, undermine already wobbly lawmaking. While the constitution requires the president to apply their mind before signing a law, this isn’t meant to be a renewed opportunity for submissions or consultations. 

Once a law is signed, all reasonable expectations are that it will be put into operation forthwith. The last part of all new legislation says: “This act is called ... and takes effect on a date fixed by the president by proclamation in the Government Gazette.” Yet months often pass as the Ramaphosa presidency seems unable to co-ordinate signing legislation into law and proclaiming a starting date for all or even just parts of new laws. 

The NHI Act was signed into law just before the elections in a public ceremony, with Ramaphosa surrounded by beaming officials, reminiscent of US presidents signing executive orders. Four months later the NHI Act is still to be proclaimed. Perhaps this is why organised business seems to believe change may yet be possible.

But the time for engagement was in the parliamentary process, which stretched over about four years from August 2019. During public hearings and submissions to parliamentarians, civil society, health experts and business not only raised caution and critique but put forward proposals to fix issues. That’s how public hearings are done.

Yet none of these suggestions was taken on board, as the then still governing ANC knew it could rely on its numbers to get its way. Parliament failed to honour its constitutional public consultation responsibilities and just ticked the boxes — meetings held, discussions had, draft law adopted. Finish and klaar. 

Ramaphosa’s carefully phrased promises of presidential engagement may be politically clever but they are ill-considered. If some sections of the NHI Act are never implemented due to such engagements, despite the law being on SA’s statute books, it would set a dangerous precedent in an already precarious state of lawmaking. 

Parliament, not the presidency, must step up; only amendment legislation can legally change the existing NHI Act. It appears that the courts will, yet again, have to step in where parliament and politicians have failed. 

• Merten is a veteran political journalist specialising in parliament and governance.