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Private Members Bill - Legislative Reform Series
November 19, 2009
Member’s Bill to Amend POSA
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.
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:
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
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.
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)
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.
Procedure for Passing Private Members’ Bills
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.
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
- 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 –
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
- 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.
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
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)].
are the chances of the POSA Private Member’s Bill passing
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
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].
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