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Draft constitution enhances Parliament powers
Southern African Parliamentary Support Trust
February 27, 2012

President is not included as part of Parliament in the draft constitution. This helps to give Parliament the necessary independence from the Executive. Limiting the President’s powers to exercise parliamentary functions is necessary to advance the principle of separation of powers between the Executive, Legislature and Judiciary. Under this principle, Parliament is there to make law, the Judiciary to interpret the law and the Executive to enforce the law.

Parliament has been mandated with protecting the Constitution in the draft and has been given power to ensure that the provisions of the Constitution are upheld, and that all institutions and agencies of the State and Government act constitutionally and in the national interest. However while in principle it is important to make Parliament the main custodian of the Constitution, the draft does not specify the actions that the legislative branch can taken in the event that some agencies decide not to respect the supreme law.

The draft gives Parliament more say in the manner in which draft legislation becomes law. It is proposed that both the Senate and House of Assembly have power to initiate, prepare, consider or reject any legislation. If the President refuses to sign into law a Bill presented to him by Parliament, he must within 21 days provide detailed reasons for doing so in writing. A joint sitting of the Senate and House of Assembly will then consider those reasons and pass the Bill by two-thirds majority with or without accommodating the President’s reservations. In that case, the President must within 21 days sign the Bill into law or send it to the Constitutional Court for determination. If the Constitutional Court rules in favour of Parliament, then the President must immediately sign the Bill into law.

This is a major improvement from the current Constitution which gives the President power to withhold assent and has the option to dissolve Parliament if the legislative branch insist by two-thirds majority that the President must sign the Bill into law. There is no reference to the Supreme Court (which currently functions as the Constitutional Court) to make a determination on the disagreement between the legislative branch and the President. The current Constitution therefore gives the President too much power in the law-making process and dilutes the legislative authority of Parliament.

In terms of the appointment of ministers, the draft proposes that the President only nominates ministers, with the National Assembly assigned powers to approve these appointments. The current Constitution gives the President absolute powers to appoint ministers and assign functions to them. This provision has the effect of making ministers accountable to the President alone. The new provision will make ministers accountable to the representatives of the people and compel them to take Parliament seriously when summoned to appear before committees or to respond to committee reports.

Another important provision in the draft is the establishment of the Parliamentary Public Appointments Committee to approve appointments into public office. It is this committee that will be given the responsibility to approve the appointment of the Chief Justice and the Judge President. In the current Constitution, the judges are appointed by the President after consultation with the Judicial Service Commission. Note should be taken that after consultation means the President can still disregard the recommendations of the Judicial Service Commission.

In order to separate Parliament from the Public Service and effectively regulate the conditions of service of members and staff, the draft has included a provision for an Act of Parliament that establishes the Parliamentary Service Commission. The Commission will appoint the Clerk of Parliament and other members of staff. It will also fix and regulate the conditions of service of members and staff. Hopefully, this Act will help resolve the problem of poor conditions of service for members and staff. We have to move to a stage whereby Parliament will determine and control its own budget through the Parliamentary Service Commission.

It is my sincere hope that as the draft is further refined, Parliament will be fully accorded its role in the national governance system. We need a strong and independent legislative branch of government to provide an effective check on executive power. The principle of separation of powers between the three arms of government must be clearly defined in the new constitution and exercised.

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