IN A MOVE that appears to contravene the underlying ethos of South Africa's post-apartheid status as a constitutional state, the African National Congress-led government has published two draft bills that provide for multiple amendments to the 1996 Constitution. The envisaged changes suggest that the Constitution is being downgraded from its rank as the supreme law of the land to just another law on the statute book.
Not everyone shares the above perceptions, which have been articulated strongly - but not exclusively - by the Democratic Alliance. "The government has not explained why it is suddenly necessary to make seven simultaneous amendments to the Constitution," DA leader Tony Leon protests. "Read together these amendments suggest a grab for more national executive power. It is inappropriate for government to introduce a slate of constitutional amendments in the dead of parliamentary winter simply because some bureaucrats seek to make life easier for the executive."
A well-placed observer who is close to the ANC disagrees. She dismisses DA concerns as "hysteria". There are cogent reasons for the amendments and they should not be seen as evidence of a cavalier attitude towards or cynical disregard for the Constitution by the government, she states.
Justice department spokesman Paul Setsetse agrees. Far from being evidence of ANC indifference to the Constitution, the amendments are "crucial and highly significant" attempts to accelerate service delivery in local government and establish better lines of accountability, he argues. The omnibus nature of the two bills - which, Setsetse discloses, will be introduced in Parliament as a single bill - is a genuine attempt at "time-saving", not an attempt to steamroller the amendments through Parliament. He counsels against generalised statements and urges those with misgivings to look closely at the proposed amendments in the belief that when they do so they will be convinced that they are necessary and justified.
In any case, Setsetse notes, government has invited comment on the proposed bills. The DA, he continues, will better serve its own cause, and the principles that it believes underpin it, by making a comprehensive submission instead of criticising government through the media.
The bills provide for amendments relating to the judiciary, the appointment of deputy ministers, the functioning of local government and intervention by national government to rectify problems where necessary, and the powers and functions of the minister of finance. Brief summaries follow of the purpose of each of the four categories of amendments. They are extracted from the memoranda distributed by the department of justice which outline the official view and, where necessary, are supplemented by the comments of government officials.
THE JUDICIARY
These amendments provide for the restructuring of the judicial system necessitated by the death of Chief Justice Ismail Mahomed in June last year. Following a reappraisal of the judicial system and consultation with senior judges, including those on the Constitutional Court, a decision has been taken to confer the title Chief Justice on the President of the Constitutional Court instead of the senior judge of the Supreme Court of Appeal. The amendment provides for that change of title and for the head of the Supreme Court of Appeal to be known as the President of that court. The amendment is more important than that, however, since it marks the end of the equal status accorded to the Constitutional Court and the Supreme Court of Appeal in the 1996 Constitution. It unequivocally places the Constitutional Court at the apex of the judicial system.
The amendments touch on another aspect of the judicial system, however. They scrap the clause 176 (1), which stipulates that a Constitutional Court judge is "appointed for a non-renewable term of 12 years but must retire at the age of 70". Thus Constitutional Court judges, like their colleagues in the Supreme Court of Appeal and the High Court, will "hold office until they are discharged from active service". One reason for the change is, according to well placed judicial sources, government's intention to enable Constitutional Court President Arthur Chaskalson, who turns 70 in November, to stay on for a few years as Chief Justice.
DEPUTY MINISTERS
The Constitution empowers the president to appoint two ministers who are not members of Parliament.
Deputy ministers, however, must be MPs. The proposed change will enable the president to appoint two deputy ministers from outside Parliament. The move is believed to be aimed at accommodating the Azanian People's Organisation (Azapo) as a partner in the ANC-led coalition government. Azapo has only one representative in the Parliament, Mosibudi Mangena, who was appointed deputy minister of education in February. Mangena wants to surrender his seat to another Azapo member. The proposed change will enable him to do so without making him ineligible to serve in the cabinet. It will thus cement the alliance between the ANC and Azapo.
LOCAL GOVERNMENT
At present the Constitution provides for intervention by provincial governments in municipal affairs if there is a breakdown in local governance. It does not provide for intervention by the national government, though the three spheres of government - national, provincial and local - are held to be constitutionally interrelated and interdependent. One purpose of these amendments is to end what Treasury spokesman Vuyo Kahle describes as the "anomaly" of provision for provincial government intervention without similar provision for national government.
As the relevant memorandum puts it, the Constitution should be amended "to give the national executive the same power to intervene in a non-complying municipality" as that conferred on provincial governments. The reference to non-compliance relates to failure to comply with regulations designed to ensure sound financial management. Provincial governments will not lose their power to intervene as a result of the amendment. It will be concurrent with that conferred on national government.
The observer cited earlier believes that the amendment is necessary for another reason: the capacity and power of provincial governments is often too limited to ensure that problems in local government finance are addressed before they reach crisis point. The memorandum explains that provinces have "very little capacity" to oversee the supply of electricity and water. Consequently, if a municipality defaults, there is very little that provincial government can do.
These amendments specifically empower Parliament, as the legislative arm of national government, to pass legislation for the "exercise of executive and legislative authority on behalf of a municipality" where that municipality cannot function or when a financial emergency requires urgent intervention.
The number of municipalities established under the 1998 Municipal Demarcation Act has been reduced to 284. The financial viability of at least half is distinctly precarious and, in some cases, non-existent. As Ismail Momoniate of the National Treasury has noted, "The biggest challenge that faces the demarcation process is to create financially sustainable municipalities . . . There are too many small, non-viable municipalities with very little capacity." Despite that national government has devolved responsibility for delivery of social services to municipal councils - on which its own reputation and political popularity ultimately depends. Hence its interest in providing for speedy and effective intervention when necessary. (The ANC's sudden decision in the run-up to last year's local government elections to provide a basic amount of water and electricity free has made the municipalities' job more difficult.)
FINANCE MINISTER
Only the finance minister may introduce a money bill in Parliament as the Constitution now stands. The amendment proposes to extend that restriction to all legislation relevant to Chapter 13 of the Constitution, which deals with financial matters generally at all three levels of government. There are three exceptions, relating to the financial administration of Parliament, the remuneration of parliamentarians and regulation of property rates. The memorandum states that it would make the introduction of legislation that impacts "on macroeconomic policy" the sole prerogative of the finance minister. A money bill is defined in the Constitution as one which "appropriates money or imposes taxes, levies or duties". The amendment would extend the definition to include bills that abolish, reduce or grant exemptions to taxes, levies, duties or surcharges.
The broad sweep of the amendments would allow the minister to control the proliferation of levies that have emanated from government departments wishing to increase their financial powers, and that has led to an unnecessarily complex fiscal regime.
Another proposed amendment seeks to reduce the membership of the Financial and Fiscal Commission from twenty-two to eight. The commission is defined in the Constitution as an independent and impartial body, subject only to the law. Its function is to make recommendations relating to Chapter 13, which covers a wide range of financial matters stretching from the division of revenue between the national, provincial and local tiers of government to the Central Bank. The proposed amendment follows an earlier one, which scrapped the requirement that the chairperson and deputy chairperson serve as full-time officials. These amendments seem to reduce the power of the Financial and Fiscal Commission. They are the obverse side to the strengthening of the power of the finance minister.
The overall rationale for the changes relating to finance is defined broadly, and vaguely, in the relevant memorandum as one of addressing "a range of practical difficulties in implementing the Constitution".
Even if a case can be made for each of the four categories of amendments - and that is by no means established beyond doubt - it does not follow that an omnibus bill introducing them all at once is justified. The argument still stands that the Constitution, as the foundation upon which the new order rests, ought not to be targeted for multiple change. Apart from conveying a lack of respect for the Constitution, it may place opposition parties in a difficult position. What if they agree with the need for the changes relating to judiciary and local government but have grave reservations about concentrating greater powers in the hands of the finance minister? Should they delay important, even urgent, changes at one level because of their doubts about changes at another? Is there an element of realpolitik in government's approach, an attempt to dragoon the opposition into support for one set of changes by linking them with another? If so, is the deployment of Machiavellian tactics appropriate when the integrity of the Constitution might be at stake?
Considered in the light of those questions, it would have been wiser to have published separate bills for each proposed category of amendments and to have invited debate on and scrutiny of each separately. Setsetse's timesaving argument invites the rejoinder that it is sometimes prudent to hasten slowly. David Welsh, emeritus professor of African government at the University of Cape Town, says, "It comes across as a slight on the holy constitutional writ of South Africa".
Welsh is wary even of the changes relating to the judiciary. "It is dangerous and undesirable for government to receive direct power to manipulate the tenure of judges," Welsh argues. He thinks compulsory retirement at 70 is a reasonable requirement.
A legal observer also criticises the rescinding of the provisions limiting the tenure of Constitutional Court judges to a non-renewable period of 12 years or, if it comes first, until they turn 70. As several of the new judges are only in their 40s and early 50s, that opens the possibility of them remaining there for 20 or more years, particularly if the government likes them or approves of their verdicts. The built-in provision for the introduction of "fresh blood" into the Constitutional Court will effectively be negated by the amendment, the observer comments.
On the amendments relating to legislation on financial matters, Welsh says: "It is unhealthy to centralise financial legislation in the minister of finance. It strengthens the impression that the ANC wants to centralise everything in sight."
He has reservations, too, about the amendments relating to local government. The risk there, he contends, is intervention over the heads of provincial governments in provinces where the ANC is not the ruling party - the Western Cape and KwaZulu-Natal, where the majority parties are the DA and the Inkatha Freedom Party respectively.
DA spokesman for finance Ken Andrew notes that the finance minister's current limited monopoly on the introduction of money bills will be expanded greatly if the relevant amendment is accepted. Chapter 13 covers a vast expanse of financial matters, he says, including those relating to provincial and local government. He believes that cautious and thorough consideration of all the implications of every amendment is necessary, a requirement that the omnibus bill may not allow when it is introduced.
The government's plan to present Parliament with a bill providing for multiple amendments to the Constitution has one glaring omission. It is obliged under Section 77 (2) to introduce a law to give Parliament the option of amending money bills, instead of either accepting or rejecting them in toto. The relevant section reads, "An Act of Parliament must provide for a procedure to amend money bills before Parliament." Five years have passed since the Constitution came into operation under Act 108 of 1996. Yet, as Andrew observes, the required amendment has not been put on the statute book. As a result, not even the parliamentary finance committee, whose mandated task is to scrutinise all financial legislation, can amend money bills. By contrast other parliamentary committees are constantly introducing amendments to improve draft legislation or to meet objections from opposition parties.
Douglas Gibson, chief whip of the DA, offers a simple but persuasive explanation for the ruling ANC's tardiness. He thinks it likes the status quo and thus turns a blind eye to the constitutional injunction contained in 77 (2). While it finds the time and energy for the amendments it favours, it cannot or will not find the opportunity or drive to fulfill its constitutionally prescribed duty. That in turn invites the deduction that its respect for the sovereignty of the Constitution is a matter of show rather than substance.
