Section 79 of the Constitution states that if the President has reservations about the constitutionality of a Bill passed by Parliament, he or she must refer it back to the National Assembly for reconsideration. If the National Assembly fails to address the President’s concerns he or she can refer it to the Constitutional Court for a decision on its constitutionality.
The final version of the Bill recently passed by Parliament to amend the manner in which the SABC Board is appointed and fired must surely be such a Bill. If I was Mujanku Gumbi I would advise the President not to sign this Bill and to refer it back to Parliament.
This is because the Bill seems to provide for an inappropriate conflation of the executive power – exercised by the President – and legislative power – exercised by the Speaker, nogal – as it dilutes the power of the President to appoint the SABC Board and to determine its term of office by stating that the President must fulfill these functions “in consultation with” the Speaker of Parliament.
Thus the head of Parliament and the head of the executive are now required to exercise this function jointly. This raises a separation of powers concern between the legislature and the executive. The Speaker is not given executive powers by the Constitution while this Bill purports to give her such power, thus probably rendering these sections unconstitutional. These sections are also nonsensical because the President and the Speaker do not have an discretion but must appoint the Board “on the advice of the National Assembly” which probably mean these two MUST appoint the Board as recommended by the National Assembly.
The Bill also states that the chairperson of the Board will no longer be appointed by the President on his or her discretion but must be appointed “on recommendation of” the National Assembly by the President acting in consultation with the Speaker. It is unclear what the difference is between “on recommendation of” and “on advice of”, but it could be argued the former provides for a discretion for the President and the Speaker to appoint a chairperson after taking into account the recommendation of the NA. This is also almost certainly unconstitutional.
The Bill also provides for the President and the Speaker MUST remove a member of the Board after the NA adopted a resolution to this effect on rather broad grounds including “inability to perform the duties of his or her office efficiently”. No inquiry is needed and the NA can decide whether a member of the Board failed to perform his or her functions efficiently. Efficiency is such a broad term that it allows for removal on completely non-objective terms as the majority party in Parliament may decide.
The Bill also states that the President and the Speaker MUST remove the ENTIRE Board on the basis of one of the following criteria: if it fails to discharge its fiduciary duties; it fails to adhere to the Charter of the SABC; or it fails to carry out its duties in terms of this Charter to pursue its objectives and exercise its powers, to provide creative and programming independence.
These grounds are extraordinary broad and leaves the door wide open for abuse by a majority party in Parliament. In effect the Board will now be accountable to the Parliament and if it fails to do what Parlaiment wants, it can be fired – even without having a proper hearing into the matter. It can therefore be argued that it kills off the independence of the SABC Board and thus of the Public Broadcaster because the Board will be beholden to the NA for their jobs.
If the Board fails to perform in accordance with the National Assembly wishes, it could be fired at will. It is unclear whether this is an infringement of the Constitution as section 192 of the Constitution merely states that “National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”. If the Broadcasting Act is seen as part of this legislative framework it is a problem. But if this section merely refers to ICASA – the body overseeing all broadcasting in South Africa – it is not. The latter interpretation is less strained.
On a more principled level (for what its worth) the problem with the Bill is that it legislates for a specific situation and not for the future or in general terms. It tries to fix the problem that arose when the ANC MPs were instructed to appoint members of the Board it had not agreed to. This is the worst kind of expediency and a very bad way to legislate. One should not legislate for a specific event because it is a kind of erosion of the Rechstaats principle that law should have general application.
Prof de Vos – I agree entirely with your sentiment on the SABC Bill. Isn’t this also what should happen with the Disbanding of the Scorpions Bill?
Prof., I also agree entirely with your well researched opinion but do not agree with anonymous’ sentiments, if he wants us to understand his point he must bolster it with a reasoned argument like yours.
Mdu – I have already at numerous occasions on various blogs below concerning the Scorpions’ thing advanced my arguments as to why Ii would say the disbanding of the Scorpions is (or would be) unconstitutional – and I do not think I need repeat them here. During Glenister’s application before the CC last week, many of the justices (before the CC reserved judgment) opined that the application might be too early, and that the applicant should wait for the bill to be passed (or, by implication, he should wait to see whether the President does not refer the matter back or to the CC i.t.o. s 79) before bringing his application. My submission, for the reasons advanced in the other blogs below, is that the whole exercise to pass the Bill disbanding the Scorpions (even the mock public hearings because, in the words of Carrim, the Bill will be passed unless something ‘earth shattering’ happens; and, the fact that many Parliamentarians who have to debate the Bill have themselves been investigated by the same unit they are called upon by their boss [the ANC] to disband and cannot be regarded as impartial) is unconstitutional. I do not think that more should be added to bolster my view. That is why I think the President should refuse to sign the Bill as soon as it is approved by Parliament.
Prof – Sorry for posting this here, but every time I try to post bit under the older post “This is Zimbabwe today”, below, it bounces.
My post went missing again so I repost.
And now to change that slioight minority into a slight majority!
http://www.news24.com/News24/Africa/Zimbabwe/0,,2-11-1662_2382036,00.html
www dot news24.com/News24/Africa/Zimbabwe/0,,2-11-1662_2382036,00 dot html
How long will Thabo Mbeki, SADC, African Union and the Security Council (Russia and China) still turn their heads and pretend that they just cannot see?!
Interesting article. The control of the SABC Board and how Parliament has attempted to deal with this situation call for in depth analysis. But I would suggest that Pierre is understating the response as merely a knee jerk reaction in relation to an unpopular Board. Remember Counter-revolutionary No 1 is seen by the far-Left as being the Media. So this is seen as being a means of taking control of the enemy too. I’d like to see some analysis of that. Perhaps Setumo Stone could help?
Prof – Sorry for posting this here, but every time I try to post bit under the older post “This is Zimbabwe today”, below, it bounces.
My post went missing again so I repost.
And now to change that slight minority into a slight majority! Bob Mugabe has gone and appointed a few more MPs and Senators, and, to top it all, the SECRET police have arrested two MDC MPs about to enter Parliament (which Mugabe, with the blessing of mediator Thabo Mbeki is re-opening to form a goverment despite the memorandum of understanding that should regulate the talks). How is that for stealing?
www dot news24.com/News24/Africa/Zimbabwe/0,,2-11-1662_2382036,00 dot html
How long will Thabo Mbeki, SADC, African Union and the Security Council (Russia and China) still turn their heads and pretend that they just cannot see?!
Goodbye “Rule of Law” and welcome “Rule by Law”. This will certaily turn the “democratic” (or is it democrazy?) Parliament into the same animal it was during the debauched rule of the Nats…
This bill accurately shows the ruling party’s attitude to law and the rule of law. When the CC found against JZ and Thint the Zuma camp complained and verbally abused the CC because they cannot fathom the notion that a law or court ruling can’t simply be made to suit the expediencies of a situation. Imagine if the CC had buckled – the white collar criminals would have a field day, which is not to say they won’t because that other politically expedient act the DSO bill et al will do just that.
Down the line the SABC Bill result in just what the Prof says. I wonder if Thabo will cave in and sign?
Once again, sorry for posting on the latest developments in Zim here, but the older pages on zim keep on bombing posts out. I retract partially my doubts above on Bob Mugabe’s move to try and re-convene Parliament to force Tsvangirai into an power-sharing deal where he would not be granted any executive power. It now seems that MDC has won the first round and its candidate was elected by 110 to 98 as Speaker, who will decide when to re-convene Parliament. At least some of Mugabe’s supporters voted for the MDC’s candidate, and not for the breakaway candidate Arthur Mutambara’s candidate, who was backed by Zanu PF just because he wanted to enter into such a power-sharing deal with Mugabe, which move would have effetively ousted Tsvangirai in the process. Thanks for democracy – http://www.news24.com/News24/Africa/Zimbabwe/0,,2-11-1662_2382179,00.html
will thabo sign? more likely, he’ll quack at it.