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constitution enhances Parliament powers
Southern African Parliamentary Support Trust
February 27, 2012
not included as part of Parliament
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
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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