Fast-tracking Local Govt Bill against Constitution

Last week Parliament witnessed suspension of standing orders or rules of procedure in order to fast-track passage of the Local Government Amendment Bill, which now awaits presidential assent to become law. The move generated heated debate and chaotic scenes in the National Assembly as partisan interests came to the fore.

Source: Fast-tracking Local Govt Bill against Constitution – NewsDay Zimbabwe July 8, 2016

John Makamure

Opposition legislators spoke strongly against the suspension of rules, while ruling party legislators were all in support of a motion by Local Government minister Saviour Kasukuwere to fast-track passage of the Bill. The motion eventually carried the day because of Zanu PF’s superior numbers in Parliament. The question on many people’s lips is whether or not fast tracking is in line with the rules of Parliament and good tenets of a democratic house of assembly.

To answer this question, let me start by looking at what the Constitution says about the standing orders. Section 139 (2) says standing orders may provide for the regulation and orderly conduct of business and proceedings in and between the National Assembly and Senate, among other functions. Section 139 (3) goes on to say that the procedures and processes of Parliament and its committees, as provided in the standing orders, “must promote transparency, must encourage the involvement of members of all political parties in Parliament and the public, and must be fair and just”.

When a bill or draft legislation is considered and passed by Parliament, it would have gone through various stages as stipulated in the standing orders. They are as follows: publishing in the Government Gazette followed by First Reading then referral to the Parliamentary Legal Committee to examine its constitutionality and then Second Reading followed by Committee Stage and finally Third Reading or reporting stage.

The standing orders provide that not more than one stage of a Bill must be taken at the same sitting without leave of the House.

Basically, this means the one who is sponsoring a Bill has to ask for permission from the House to fast-track passage of the draft legislation. If the request is approved by a simple majority of the MPs present, then the Bill can even be passed within one day. So there is nothing unlawful about what Kasukuwere did to seek leave of the House to suspend standing orders in order for the Local Government Bill to go through Second Reading, Committee Stage and Third Reading within one day.

However, even if the action was lawful, was it in line with the spirit of section 139 (3) stated above? My respectful submissions are that fast-tracking passage of legislation in Parliament is not in sync with the spirit of the Constitution, in particular section 141 which requires Parliament to facilitate public involvement in its processes and ensure that interested parties are consulted about bills being considered by Parliament, unless such consultation is inappropriate or impracticable.

Parliament may argue that the public was consulted through public hearings that were conducted by the Portfolio Committee on Local Government. However, consulting interested parties as provided for in section 141 is not merely about going through the motions.

Crafters of the Constitution had in mind a genuine consultative process whereby the views coming from the majority of citizens are seriously considered and taken on board. This was not the case with this Bill. The amendments that were effected by the minister were cosmetic in nature. Furthermore, it is common knowledge that the hearings in Harare were disrupted by alleged hired hooligans, meaning some of the citizens were deprived of their constitutional right to participate in the lawmaking process. So arrangements should have been made for those people unable to make submissions to do so before rushing the Bill in Parliament.

I followed the debate on the Local Government Bill very closely and did not hear plausible reasons why the Bill had to be fast-tracked. Sponsors of legislation must understand that the legislative authority is derived from the people (section 117 of the Constitution). It is therefore the people that should instruct the ministers to fast-track legislation, and not the other way round.

What is the situation in other parliaments? In Malawi, upon publication of the Bill in the Government Gazette, the Clerk of Parliament shall circulate a copy of the Bill to each Member of Parliament at least 28 days before the Bill is read for the first time in the Assembly. A motion can be moved to waive the requirement for 21 days. However, this must be on the grounds of urgency, provided that the mover of such a motion shall inform the National Assembly of the reasons for the urgency and the consequences to the nation of not passing the motion or Bill as a matter of urgency. The import of this provision in the Malawian standing orders is that fast-tracking is highly discouraged. It can only take place provided it is in the best interests of the nation to do so, and that reasonable notice would have been given to fast-track.

The standing orders of the South African National Assembly also provide for suspension of rules. It is submitted though that even if a bill was to be fast-tracked in the South African dispensation, the processes that are provided for in the standing orders are such that there is scope for the incorporation of stakeholder interests. In particular, the following issues are worth noting: an explanatory summary of the bill has to be gazetted and an invitation to stakeholders for submissions has to be gazetted. These provisions allow meaningful consideration of stakeholders’ input and certainly disables the Executive from disrupting the public engagement process to some extent.

Events of the last couple of weeks require the Parliament of Zimbabwe to seriously revisit the provisions on fast-tracking if the legislative branch is to effectively make law for the peace, order and good governance of Zimbabwe as provided for in section 117 of the Constitution. Fast-tracking passage of legislation is bad practice in contravention of the tenets of a democratic Parliament.

l John Makamure is the Executive Director of the Southern African Parliamentary Support Trust. Feedback: john.makamure@gmail.com