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Private Members Bills - Bill Watch 2/2013
Veritas
January 19, 2013

Both Houses of Parliament have Adjourned until Tuesday 5th February

Private Members’ Bills

Three Private Member’s Bills featured in the last Session of Parliament, but not one of them completed its passage through Parliament. At the end of a session uncompleted Bills and motions lapse and are dropped from the Order Paper, but can be restored by a resolution of the House concerned. These three items have not been reinstated since the beginning of the current Session – the present Parliament’s fifth and last – on 30th October 2012.

The three Bills are:

• Public Order and Security [POSA] Amendment Bill - The House of Assembly approved a motion by Hon. Innocent Gonese, MDC-T Chief Whip, for leave to introduce this Bill, amending POSA to make the police more accountable, in November 2009. Its First Reading took place on 2nd February 2010 and it was eventually passed by the House of Assembly on 8th December 2010 and sent to the Senate the same day. In the Senate, the Minister of Justice and Legal Affairs insisted that it would be wrong for the Senate to continue with the Bill when POSA reform was an item under negotiation by the GPA parties as part of the Roadmap to Elections. Mr Gonese agreed that the debate be adjourned, but emphasised that the Bill was not being withdrawn. It lapsed at the end of the Third Session in September 2011. In the Fourth Session Mr Gonese tabled a motion in the Senate to restore his motion to the Order Paper, but it was still not dealt with, and the motion lapsed when that Session ended in October 2012.

Comment - There are constitutional provisions that cover the situation where the Senate, as in this case, has over a long period failed to pass a Bill already passed by the House of Assembly. Perhaps the time has come for Mr Gonese to invoke these provisions. Paragraph 3 of Schedule 4 to the Constitution [as amended by Constitution Amendment No. 19] states that if a Bill that originated in the House of Assembly has not been passed by the Senate before the expiration of a period of 90 days beginning on the day it was introduced into the Senate, the Bill may be presented to the President for signing into law in the form in which it was passed by the House of Assembly. [Note: There are exceptions to this special procedure – for instance, it does not apply to constitutional Bills – but these exceptions do not apply to the POSA Amendment Bill.] As the Senate has delayed this Bill for well over 90 days, the House of Assembly can pass a resolution to send the Bill directly to the President for his assent and if he assents it will become law without the Senate’s approval. All Mr Gonese needs to do is get an appropriate resolution approved by the House of Assembly. His party has the necessary votes [see Bill Watch 1/2013 of 14th January for voting strengths]. The President could refuse to sign it, but this would send a definite obstructionist signal to SADC instead of the current obfuscation by interminable delays.

• Criminal Procedure and Evidence [CPE] Amendment Bill aims to repeal section 121(3) of the CPE Act, the controversial provision which allows prosecutors to stall the release of accused persons granted bail by magistrates. [Bill available from veritas@mango.zw] Mr Gonese proposed his motion for leave to introduce this Bill in March 2012, but no decision was taken before the end of the last Session. Mr Gonese has already tabled a motion to restore this motion to the Order Paper and it is on the agenda for 5th February. [See Court Watch 8/2012 of 25th April 2012 for details on section 121(3 ) and its misuse by the State.]

• Urban Councils Amendment - The main purpose of this Bill is to curb the powers of the Minister of Local Government, Rural and Urban Development to intervene in local council affairs. MDC-T MP Tangwara Matimba obtained the leave of the House of Assembly to introduce it in October 2011, and duly introduced it in February 2012. After it had been cleared by the PLC, Mr Matimba delivered his Second Reading speech on 14th May. The next day debate was brought to a halt by the Speaker as a result of court proceedings instituted a few days earlier at the prompting of ZANU-PF. What happened was as follows.

Chombo Court Case Against Urban Councils Amendment Bill

Minister of Local Government, Rural and Urban Development Dr Ignatious Chombo lodged papers in the Supreme Court asking for an order stopping the House from proceeding on the Urban Councils Amendment Bill. He based his application on his argument that, for the duration of the GPA, Article 20 of the GPA, as incorporated by Constitution Amendment No. 19 into Schedule 8 to the Constitution, implicitly imposes a temporary suspension on the introduction of Private Member’s Bills. The Minister has raised this argument notwithstanding the longstanding constitutional right in Schedule 4, paragraph 1(3) of the Constitution, which explicitly states that that “any member (of Parliament) ... may (subject to Parliamentary Standing Orders) introduce any Bill”. [For the Minister's arguments and legal opinions against these arguments see Bill Watch 20 and 21/2012 of 15th May 2012.]

The Supreme Court will hear legal argument on Dr Chombo’s application on Thursday 24th January. The application is opposed by the proposer and seconder of the Urban Councils Amendment Bill and Parliament’s presiding officers. A decision before Parliament resumes sitting on 5th February is possible, if unlikely.

Speaker’s Ruling: Urban Councils Amendment Bill Sub Judice

The Speaker of the House of Assembly suspended debate on the Bill on 15th May 2012 in terms of Standing Order 62(d). This Standing Order sets out what is familiarly known as the sub judice rule in these words: “No member shall, while speaking to a question ... refer to any matter on which a judicial decision is pending.” The Speaker ruled as follows: “following the Minister of Local Government, Rural and Urban Development’s decision to approach the Supreme Court regarding the proposed amendment of the Urban Councils Act, debate stands suspended in terms of Standing Order 62(d) until a judicial decision on the matter has been made.”

There were alternative strategies that could have been pursued instead of stopping proceedings on the Bill:

1. The Speaker could have ruled that a sub judice ruling was premature, because all that had happened was that a court application had been lodged. This would have been in line with his previous ruling in the Zvoma case where he said the mere lodging of a court case was not sufficient to activate the sub judice rule; it was necessary for the case to have progressed to the later stage where the court was considering its decision. [See Bill Watch 21/2012 of 15th May 2012.]

2. The Speaker could have said that debate could proceed for the time being on the policy pros and cons of the Bill, because that could be done without MPs referring to the real issue raised by the Minister for the Supreme Court’s decision – the technical constitutional point, which has nothing to do with the contents of the Bill. That would have avoided the danger of undesirable confrontation between legislature and judiciary over that issue. After all, the point of the sub judice rule is to avoid statements in Parliament that might be seen as interference with the judicial process.

3. The House of Assembly could have circumvented the problem by voting for a resolution suspending the Standing Order and allowing debate on the Bill to continue. The House can, in terms of Standing Order 196, do this with any Standing Order; and has frequently done so in the past, e.g. when “fast-tracking” Bills. This could still be done, but would have to be initiated by an MP raising such a motion to be put to a vote in the House.

After the Speaker’s ruling there were no further proceedings on the Urban Councils Amendment Bill.

An indirect practical result of the ruling seems to have been a “hands-off” attitude towards other two Private Member’s Bills as well, even though they are not mentioned in the ruling.

Regrettable Delay in Hearing the Case

It is regrettable that the case was not dealt with more urgently, bearing in mind that important issues are at stake:

· the obvious undesirability of premature judicial involvement in Parliamentary business, which not only disrupts the work of Parliament but also undermines the long-standing general constitutional principle that the right time to challenge legislation in the courts is after it has been passed by Parliament and gazetted – not when it is still before Parliament and it is not known whether or not it will even be passed.

• the strong arguments for the view that Private Member’s Bills are integral to the successful working of a Parliamentary democracy [see below].

Private Member’s Bills Integral to Parliamentary Democracy?

The Constitutional Court of South Africa has stressed the importance of Private Member’s Bills. In October 2012, the SA Constitutional Court gave its ruling in the case of Oriani-Ambrosini v Sisulu, Speaker of the National Assembly, in which the validity of a rule of the National Assembly which required members to secure “permission” before they could introduce Bills in the Assembly was considered.

The court held, by an 8-2 majority, that the rule was unconstitutional, in that it restricted the right of private members from minority parties to get their proposals for legislation considered by Parliament. It said:

“The very nature and composition of the National Assembly renders it pre-eminently suited to fulfil the role of a national forum at which even individual members may initiate, prepare and present legislative proposals to be considered publicly by all the representatives of the people present in the Assembly.

“The power of an individual member of the Assembly to introduce a Bill, particularly those from the ranks of opposition parties, is more than ceremonial in its significance. It gives them the opportunity to go beyond merely opposing, to proposing constructively, in a national forum, another way of doing things. It serves as an avenue for articulating positions, through public debate and consideration of alternative proposals, on how a particular issue can be addressed or regulated differently and, arguably, better.

By its very nature, representative and participatory democracy requires that a genuine platform be created, even for members of minority parties in the Assembly, to give practical expression to the aspirations of their constituencies by playing a more meaningful role in the lawmaking processes.”

Comment: The South African court’s observations on the fundamental constitutional importance of Private Member’s Bills will be relevant when the merits of the Chombo case are considered by our Supreme Court judges.

New Private Member’s Bill to Tackle Media Reform?

MDC-T MP Settlement Chikwinya has announced his intention to bring up a Press Freedom and Transparency Bill to replace the Access to Information and Protection of Privacy Act [AIPPA]. Mr Chikwinya chairs the Portfolio Committee on Media, Information and Communication Technology. His motion for leave to introduce the Bill is not yet on the House of Assembly Order Paper.

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