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A Private Members Bill - Legislative Reform Series
Veritas
November 19, 2009

Private Member’s Bill to Amend POSA

On Thursday 5th November, the chief whip of MCD-T, Innocent Gonese, introduced a motion seeking leave from the House of Assembly to introduce a private member’s Bill to amend the Public Order and Security Act [POSA]. The motion was debated and this afternoon it was approved by the House and Mr Gonese handed in a copy of his Bill in accordance with Parliamentary procedure.

What is a private member’s Bill?

A Bill is a draft piece of legislation which is presented to Parliament for approval. If it is passed by the House of Assembly and the Senate, and if it is assented to by the President and gazetted, it becomes an Act of Parliament and has the force of law. Parliamentary procedure allows for several types of Bills:

A government Bill is one which is presented to Parliament by a Vice-President, Minister or Deputy Minister, having been approved by Cabinet; it seeks to advance government policy and is drafted by government lawyers in the Attorney General’s Office.

A private member’s Bill is presented to Parliament by a member of the House of Assembly or a Senator who is neither a Vice-President nor a Minister or Deputy Minister; he or she can be a member of the governing party or a member of the opposition. The Bill may or may not reflect government policy. The drafting is the responsibility of the member presenting the Bill.

Both government Bills and private members Bills are classed as public Bills: they affect the public generally or broad sections of the public by seeking to alter the law in the public interest. Nearly all Bills fall into this category. Mr Gonese’s Bill will, if enacted, affect the public generally, so it falls into this group.

Note: There can also be a Private Bill [not the same as a Private Member’s Bill]: A Private Bill affects only particular people or groups of people and there are special procedures for introducing such Bills into Parliament. Private bills are rare – an example would be the Bill which led to the Zimbabwe Institution of Engineers (Private) Act.

What can be Dealt with in Private Members’ Bills?

There are restrictions on private member’s Bills. Most importantly, they are not allowed to impose or increase taxes or charges on State funds, nor can they waive debts due to the State, condone unauthorised expenditure or a failure to collect taxes, or empower the State to raise loans; these things can only be done in a government Bill [Constitution, Schedule 4, paragraph 1(4)]. Mr Gonese’s Bill does none of these things, so it cannot be challenged on the ground that it exceeds the restrictions on private members’ Bills.

The Procedure for Passing Private Members’ Bills

Private members’ Bills pass through Parliament in much the same way as government Bills, and like government Bills they can be introduced in either the House of Assembly or the Senate. We shall deal here with the introduction of a private member’s Bill in the House of Assembly, but if a Senator were to introduce one in the Senate the procedure would be the same.

Note: Parliamentary Standing Orders are sketchy on private members’ Bills and need revision to eliminate potential confusion, but the Clerk of Parliament has confirmed that Parliament will follow the procedure outlined below:

  • First, the private member must get leave from the House to introduce the Bill. He or she does this by introducing a motion seeking such leave, and must give notice of the motion in the House’s order paper. The motion must set out the long title of the Bill and must be seconded by another member.
  • On the day fixed for the motion, the member addresses the House, explaining why it should allow him to introduce his Bill, and the House debates the motion. If at the end of the debate the House votes in favour of the motion [i.e. resolves that the member should be allowed to introduce the Bill] the member gives a copy of the Bill to the parliamentary officials sitting in front of the Speaker’s chair. This is the stage at which Mr Gonese’s Bill stands at present. The way is now clear for the Bill to be gazetted by Parliament for public information. [Note: Government Bills are not subject to this preliminary procedure; any Minister or Deputy Minister handling a government Bill can bring a Bill to Parliament without getting the leave of the House.]
  • The procedure from gazetting onwards is the same as for government Bills – as follows:
  • · Immediately after gazetting the Bill is referred to the relevant portfolio committee, in the present case, the ortfolio Committee on Defence and Home Affairs, which will report back to the House during the second reading stage of the Bill. The Portfolio Committee can if they feel it necessary, call a stakeholders or public hearing on the Bill.
  • When at least 14 days have expired after gazetting, the Bill can be introduced and given its first reading – which means that the Clerk of Parliament reads out the title of the Bill.
  • The Bill is then referred to the Parliamentary Legal Committee [PLC], which has 26 business days within which to report on whether or not the Bill is constitutional. If the Bill gets an adverse PLC report, the House can either resolve to ignore the PLC report or require changes to the offending provisions. If the Bill has a “non-adverse” report it proceeds to the second reading stage.
  • At the second reading stage, the member sponsoring the Bill [in this case Mr Gonese] makes a speech introducing the motion that the Bill be read a second time and outlines the broad principles of the Bill. It is usually then that the Portfolio Committee chairperson reads out and speaks to the Portfolio Committee’s report on the Bill. The House can debate the principles of the Bill, but does not yet go into its details, before a vote is taken on the motion to proceed with the Bill . If the motion is approved, the Clerk of Parliament reads out the Bill’s title again and it is set down for the Committee Stage.
  • In the Committee Stage the whole House sits as a committee and considers the Bill clause by clause. It is during this stage that amendments can be proposed and a vote is taken to accept or reject any amendments. If the Bill passes the Committee Stage without amendments it then goes to the next and final stage in the House. If there have been amendments, the Bill as amended has to be resubmitted to the PLC and cannot be finalised unless a “non-adverse” report is given.
  • In the Third Reading the Bill’s proposer introduces a motion that the Bill be read a third time and if this is passed the Clerk of Parliament again reads out the Bill’s title. This is usually just a formality although theoretically this is the final chance for the House to vote to reject the Bill.

Having passed all these stages in the House, the Bill is then transmitted to the Senate, where the proceedings in the House are replicated: it goes through a First Reading, a Second Reading, a Committee Stage and a Third Reading all over again. If the Senate amends the Bill, the Bill with the Senate’s amendments must be approved by the PLC before the Third Reading.

Note: Mr Gonese will not be able to introduce his Bill in the Senate because he is not a Senator. Instead he will have to get a sympathetic Senator to pilot it through the chamber on his behalf.

If the Senate has passed the Bill without further amendments, the Bill can be sent to the President for assent without further discussion in the House. But if the Senate has amended the Bill, it has to be transmitted back to the House for approval of the amendments. If the Bill is rejected by the Senate, or if the House of Assembly and the Senate cannot agree on the Senate’s amendments, the House of Assembly can, having waited for 90 days, pass a resolution to send it to the President for signature in the form in which it was passed by the House of Assembly [Constitution, Schedule 4, paragraph 4].

If a Bill has been passed by both the House of Assembly and the Senate, and if any amendments have been agreed by both Houses, the Bill is transmitted to the President for his assent. If the President assents to the Bill, it is published in the Gazette as an Act of Parliament.

If the House of Assembly does not pass the Bill that kills the Bill, and it may not be reintroduced during the rest of the Parliamentary session [Standing Order 130 states that no Bill of similar substance to a rejected Bill can be introduced until the following session]. A typical Parliamentary session lasts for one year, from July to June; the present session started late, in early October, but may end in June 2010.

If the Senate does not pass the Bill the Bill may after 90 days be sent to the President for signature in the form in which it was passed by the House of Assembly [see above].

Can the President refuse to assent to the Bill? Yes he can. After receiving the Bill from Parliament, he must within 21 days make up his mind either to assent to the Bill or to withhold his assent [Constitution, section 51(2)].

What happens if the President refuses assent? If the President does not assent, the Bill must be returned to Parliament. The House of Assembly then has six months during which it can resolve by a two-thirds majority of all its members to send the Bill back to the President. If that is done, the President must either sign it within 21 days or dissolve Parliament. If he dissolves Parliament, he thereby triggers new elections [as elections are now “harmonised”, this would entail holding Presidential, Parliamentary and local government elections]. As the combined MDC formations have nothing like a two-thirds majority in the House, the President’s refusal to assent to the Bill would in fact be final [Constitution, section 51(3b)].

What are the chances of the POSA Private Member’s Bill passing through Parliament?

The two formations of the MDC have a slight majority in the House of Assembly, so the Bill may well be passed by the House. In the Senate, however, it could pass only if some non-MDC Senators were to support it. If the Senate rejects the Bill, the House could resolve to send it to the President after waiting 90 days, but, in those circumstances it would seem most unlikely that President would assent to it. If the President refuses his assent that would virtually kill the Bill, as the two MDC’s do not have the two-thirds majority needed to overrule the President’s veto. Even if some ZANU-PF members have supported the Bill in the House, they would be unlikely to lend their support at that stage.

So unless enough support in the Senate is forthcoming, the chances of its becoming law are slim indeed. But Mr Gonese probably knows that. Perhaps he is simply trying to send a signal to the inclusive government that it is high time they took steps to implement articles 10 and 12 of the GPA, i.e. “free political activity” and “freedom of assembly and association”, which POSA is being used to block, and to ensure that more is done to open up democratic space in Zimbabwe.

What has happened to previous Private Member’s Bills

There have been several attempts since independence to introduce private member’s Bills, but they have either fallen foul of the rule that such Bills cannot involve a charge to the fiscus, or they have been abandoned – under the virtual one party system Bills would be unlikely to go through that had not been introduced by the government. In some cases the relevant Minister would discuss the Bill with the private member resulting in its withdrawal and portions of the Bill being incorporated into a forthcoming Government Bill [an example of this was a Private Member’s bill on War Veterans].

*Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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