The PVO Amendment Bill passed its final reading in the Senate on the 1st February this year and, after a long delay [presumably while it was tidied up by lawyers in the Attorney-General’s Office] it was sent to the President for signature and assent on the 9th August – the date is recorded in Parliament’s Status of Bills report.
The President took his time considering the Bill – he may have been distracted by other issues such as elections, inaugurations appointing a Cabinet and so on – but he has now, according to Parliament’s Status of Bills, sent the Bill back with reservations to Parliament for reconsideration, in terms of section 131(6) of the Constitution, which reads:
“When a Bill is presented to the President for assent and signature, he or she must, within twenty-one days, either—
(a) assent to it and sign it, and then cause it to be published in the Gazette without delay; or
(b) if he or she considers it to be unconstitutional or has any other reservations about it, refer the Bill back to Parliament through the Clerk of Parliament, together with detailed written reasons for those reservations and a request that the Bill be reconsidered.”
We do not know the President’s reasons for referring the Bill back to Parliament: whether he considered it unconstitutional [it certainly is] or whether he had other reservations about it [and he might well have had serious reservations about many aspects of the Bill]. No doubt his reasons will be explained to the National Assembly in due course.
We should also point out that we have not seen the version of the Bill that was sent to the President for signature and has now been referred back to the National Assembly. It will no doubt be made public when the President’s reservations about the Bill are reported to the Assembly.
What happens after the President has sent a Bill back to Parliament is set out in section 131(7) of the Constitution:
“Where a Bill has been referred back to Parliament in terms of section 6(b), the Speaker must without delay convene a sitting of the National Assembly, which must—
(a) reconsider the Bill and fully accommodate the President’s reservations; or
(b) pass the Bill, with or without amendments, by a two-thirds majority of the total membership of the National Assembly;
and in either case the Speaker must cause the Bill to be presented to the President without delay for assent and signature and must give public notice of the date on which the Bill was sent to the President.”
The section gives the National Assembly only two options. It must either amend the Bill so as to meet all the President’s objections and reservations, or it must by a two-thirds majority resolve to override the President’s objections. In either event it must send the Bill back to the President who must then, in terms of section 131(8), either assent to the Bill or refer it to the Constitutional Court for an opinion as to its validity.
These constitutional provisions are not well thought out:
· Firstly, the National Assembly has the sole right to decide what to do when the President sends a Bill back to Parliament: the Senate has no role in the proceedings, even though the Senate is a constituent part of Parliament.
· Secondly, the National Assembly is given only two options, namely to accommodate the President’s reservations entirely or, by a two-thirds majority, to override them. And whichever option it chooses, it must send the Bill back to the President. But what if the Assembly decides to accommodate only some of the President’s objections, or if the Assembly cannot get a two-thirds majority to vote in favour of overruling the President’s objections? And, perhaps most pertinently, what if the Assembly decides not to proceed with the Bill at all, or to start again with a differently-formulated Bill?
To give proper effect to these provisions, paragraphs (a) and (b) of section 131(7) should be read as if they began with words such as “if the National Assembly decides to proceed with the Bill” or “unless the National Assembly decides to abandon the Bill”. Formulated in that way, section 137 would give effect to all the options that are in fact open to Parliament.
In the case of the PVO Amendment Bill, it is to be hoped that the Assembly will choose the third, unspoken, option, namely to do nothing at all and allow the Bill to die.