Once the powers and functions have been assigned, the Deputy President and Ministers are responsible for the executive powers and functions assigned to them. These provisions make plain that members of the Cabinet are accountable independently and collectively to Parliament for the exercise of their powers and performance of their functions. For good measure, section 92(3) of the Constitution restates the obvious which is that, when they exercise the powers assigned to them, members of the Cabinet must act in accordance with the Constitution. This is significant because once Cabinet ministers are assigned powers and functions by the President they are not mere vassals of the President. They bear the duty and the responsibility to fulfil the duties and functions so assigned which in practice take the form of political and executive leadership of specified state departments. The Constitution makes the point that besides the duty to account to the head of the national executive, cabinet ministers bear the responsibility to report and account to Parliament on how they execute their executive duties.
I read the report in today’s Business Day about the submissions of the various legal advisers about the Civil Union Bill with ever increasing astonishment. While the Parliamentary law Adviser, Mukesh Vassen, and the State law Adviser, Enver Daniels, advised the Committee of Parliament that Chapter 2 of the Civil Union Bill was clearly unconstitutional, one Lirette Louw, the Adviser for the Department of Justice, argued that it was not unconstitutional. Her reason? Well, she says that because there is a provision in the Bill that allows a marriage officer to refer to the Civil Partnership that would be concluded by the same-sex couple as a “marriage” during the ceremony, that means this is not a separate but equal provision. According to the Business Day report:
She said the most important issue was that the court had called for same-sex partnerships to have the same status as conventional marriages “and the bill caters for that. She pointed to the clause that allowed same-sex partners to call their union a marriage, if they chose.
This is, of course an absurd argument because the law provides explicitly NOT for a marriage but for a civil partnership. The provision she refers to allows the marriage officer to refer to the Civil Partnership as a marriage but only during the ceremony. After the ceremony the pretense is suddenly over and the state will then refer to your union as a civil partnership not a marriage. This is such a dishonest argument that it makes me wonder whether she really believes it. If she does she does not understand the real issue here, namely that to have the same status it cannot be called something else with a lesser status in our society. One would think that this is not a very difficult thing to understand but I suppose if one advises the Minister of Justice (or is it really Johny De Lange?) one may find it difficult to see the humiliation and affront that such a provision visits on all in the LGBTI community. They claim the Bill provides for equal rights when the Bill itself says that the union of same sex will, in law, be called something different. Why is there a need to call it something different if you want to give equal rights. O, I see, its because same sex relationships will somehow defile and besmirch hetero marriage and so we cannot call it marriage. Its a dishonest argument pandering to the homophobes and those who peddle it in my book has something to answer for. Do they believe this drivel or do they merely say what they think their masters want to hear?
See also my article in the Mail and Guardian (subscription needed) making more or less the same point.