Regulatory Impact Assessment in SADC: Improving Regional Regulatory Outcomes

Good regulatory outcomes require that attention be paid to the likely effects of regulatory change. In other words, government interventions must take cognizance of the facts on the ground. Without a focus on practical outcomes, regulation cannot be improved by the process of learning-by-doing and in addition risks being undermined by impractical or self-serving political policy shifts. In practice, however, a focus on facts can be very difficult to accomplish. Available data may be patchy or difficult to interpret and the political momentum which develops around a particular regulatory proposal may make it difficult to foster critical debate.

As part of a general move towards more evidence-based policy making, many governments have chosen to implement regulatory impact assessments (RIAs) as part and parcel of their political system. An RIA sets out findings about the likely impact of regulation in simple language, with which non-specialists (including political decision makers and members of the public) can meaningfully engage.

The process of conducting an RIA on a given regulatory proposal is designed to allow the critical analysis of all available, relevant data, whether quantitative or qualitative, to ensure that the chosen regulatory framework has as good a chance as possible of meeting its objectives and will not impose counter-balancing costs on other areas of society. RIAs therefore encourage regulatory bodies to think of the net costs and benefits of their proposals rather than focusing on a given narrow area of interest. Furthermore, an RIA requirement can be embedded in the process of formulating policy – in other words, governments can assure that regulation is consistently assessed, by adopting and implementing RIAs as an integral part of policy formation and review processes.

The process of conducting an RIA can be resource-intensive and countries introducing a formal RIA requirement typically struggle to produce analysis of sufficient quality at first. It is crucial for the success of such formal RIA requirements that the quality of analysis be contested, ideally by a formalized challenge function, embodied in an independent technocratic organ of the state. Alternatively, an RIA can be conducted by civil society and the quality of analysis is then typically contested in the public arena.

Ultimately, RIA analysis has the potential to be extremely politically contentious, as it may result in a requirement to change or abandon regulations into which substantial political and technocratic capital has been invested. Without the support of the political executive, ideally supported by a strong formal requirement to perform RIA (perhaps embodied in legislation), it will be difficult to consistently achieve better regulatory outcomes.

In both the developed and developing world, much experience has been accumulated on how to successfully introduce and run RIA processes. It is clear that the manner in which RIAs are introduced must take into account the peculiarities of domestic political systems and processes in order to be successful and thus a 'one-size-fits-all' approach will not work.

The introduction of RIA techniques into the process of policy formation has substantial potential to improve the quality of regulatory outcomes in Southern African Development Community (SADC). Although RIAs have the most impact when they are embedded in formal policy development procedures, they may also be used by civil society as an ad hoc means of engaging government on the quality of legislation – which can also be a means of publicizing the potential usefulness of RIAs.

The process of developing policy can be chaotic and difficult to manage. The practice of conducting RIAs ensures that analytical rigor has been used to evaluate policy development and that all relevant factors have been considered when assessing possible impacts. In this manner, it resembles business planning processes, where subsidiaries are required to prepare business plans which take into account the over-arching interests of their parent companies. The goals of governments are much more wide-ranging than those of business, and include equity and justice as well as growth and profit. As such, government policies should if anything receive more attention during their planning phases than those of business.