Paragraph 25 of the Constitution: what happens next? – NEWS & ANALYSIS



Article 25 of the Constitution – What happens next?

August 20, 2018

THE REMAINING TERMS AND CONDITIONS OF THE FIFTH PARLIAMENT.

Parliament is currently in the third term of 2018, which ends on 14 September.

The fourth term of 2018 will take place between October 9 and November 30, a session of eight weeks.

The first period of 2019 is planned for February 7 to March 26, a period of eight weeks[1].

The fifth Parliament ends on 8 May 2019. All unfinished business will then be canceled.

THE CONSTITUTIONAL REVIEW COMMITTEE.

Parliament decided in February 27, 2018, that the committee would reconsider Article 25 of the Constitution and, where appropriate, other provisions, to make it possible for the state to expropriate land in the public interest without compensation. The Committee was instructed to propose the necessary changes to the Constitution, where necessary. The Committee was instructed to report to Parliament by 30 August 2018 at the latest[2].

The parliamentary control group reports that discussions will take place between 4 and 7 September 2018 on public hearings and written contributions, with the approval of the report expected on 11 September 2018, where the committee will make a recommendation to both chambers of Parliament for approval.[3].

The Constitutional Review Committee is a joint committee of the National Assembly and the National Council of Provinces. It has 26 members, 14 from the ANC, 4 from the DA, 3 from the EFF, 2 from the IFP, and one each from COPE, the NFP and ACDP (none from VF +).

THE GOVERNMENT POSITION

On Tuesday, July 31, 2018, the president said on behalf of the ANC that through the parliamentary process it would complete a proposal to amend the constitution that would outline more clearly the conditions under which expropriation of land without compensation could take place.[4].

THE REQUIREMENTS FOR THE MODIFICATION OF THE CONSTITUTION.

Paragraph 74 of the Constitution contains the requirements for amendment of the Constitution. Article 74 (3) obliges the person or committee intending to introduce an amending law to include in the national official gazette and in accordance with the rules and orders of the National Assembly, information about the proposed change for public comment, publish at least 30 days. before the bill is submitted to Parliament.

Section 74 (6) requires that the person or the committee that introduces the amendment bill, submit written comments from the public and the provincial legislators to the Speaker in the National Assembly, and (where relevant, as in this case) to the chairman of the National Council of Provinces for submission to the Council.

Article 74, paragraph 7 stipulates that a proposed amendment to amend the Constitution may not be put to the vote in the National Assembly within 30 days of:

(a) their introduction, if the Assembly is in session when the bill is submitted; or

(b) their submission to the Assembly, if the Assembly is in recess when the Bill is submitted.

As is well known, an amendment to Chapter 2 of the Constitution, which includes Article 25, requires a two-thirds majority in the National Assembly, the support of six provinces within the National Council of Provinces, and Presidential assent.[5].

RATING

What we can expect is a progressive revelation of political positions. There will be audiovisual reports of the deliberations of the Constitutional Review Committee and related documentation. The president's announcement limits the ANC members of the committee to pave the way for the introduction of a constitutional amendment, and their majority in the committee allows their vision to prevail. However, the ANC will have to deal with members of the committee who oppose a constitutional amendment and those who consider it unlikely that the amendment goes as far as they wish. And it should not be forgotten that the country is a controversial issue within the ANC itself. The debate about it during the ANC conference last December was, in all respects, noisy.

In their contributions to the deliberations, all members of the committee will have an eye, probably both, at the election of 2019. The deliberations and the subsequent report are of general public interest. They will have to be carefully monitored by individuals and organizations who are concerned about land reform.

It was strange for the president to bind the ANC prior to the parliament's decision on the Constitutional Review Committee's report, and it would be even more strange, contrary to the commitment to the parliamentary process, and possibly stand in the way of , to a proposed bill in the Government Gazette before the decision of the parliament. If the planning of the parliamentary control group is correct, a parliamentary decision can be taken before the end of the third parliamentary term, but only in part. Slipping means that the decision is postponed to the fourth term.

When the promised constitutional amendment is published, we will know exactly what the Government intends and the debate will be moved to a new level. Interested parties will want to make use of the possibility to make comments. At this stage, two requirements will be imposed. The process of dealing with a proposed constitutional amendment must be legally impeccable. Otherwise it runs the risk of getting caught up in a lawsuit. Also, any change must be in line with the rest of the constitution if no clumsy case-law problems arise in the future.

Either a constitutional amendment is adopted by the Fifth Parliament or not. First consider the case that it is. The government will need the support of at least 18 non-ANC members to obtain the necessary support in the National Assembly. The EFF, which has 25 members, can give the necessary votes. The process must also be fitted into the busy agenda of the last months of the Fifth Parliament. Nevertheless, with sufficient priority to the case, an amendment can be adopted at the end of March and signed legally. What is certain is that additional changes to the regular legislation by that time can not be completed. They should be dealt with by the Sixth Parliament. At most a constitutional amendment will specify a change in what can be done. What will happen must be worked out in the coming years and will be a major problem in the 2019 elections.

Also consider that the constitutional amendment has not been adopted by the Fifth Parliament. Then, in addition, the form of a possible change becomes an electoral problem, and the salience of the issue of the country will be even greater.

As the magician's pupil discovered, so beautifully captured in Walt Disney's fantasy one can call a process without being able to control it. Those who know South African politics, economics and civil society will find many interesting things here.

Charles Simkins, head of research, Helen Suzman Foundation.

This article appeared for the first time as an HSF briefing.

footnotes:

[1] Parliamentary program committee, 24 May 2018

[2] Constitutional review committee, 20 March 2018

[3] Parliamentary Monitoring Group, The coming week: the third term is in progress, August 13, 2016

[4] Times Live, complete: land reform: ANC to change constitution – read Ramaphosa & # 39; s statement here, I August 2018

[5] Sections 74 (2) and 74 (9)


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