Truth or Reconciliation Mechanism: Interim Constitution Accord

Written by

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 15, Section 232(4):

In interpreting this Constitution a provision in any Schedule, including the provision under the heading ‘National Unity and Reconciliation’, to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of the substance of this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, National Unity and Reconciliation:

This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex.

The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 Oct 1990 and before 6 Dec 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

Decentralization/Federalism: Interim Constitution Accord

Written by

Constitution of the Republic of South Africa Act 200 of 1993 Chapter 9

124 Establishment of provinces

(1) The following provinces are hereby established, which for the purposes of this Constitution, but subject to subsection (2), shall be recognised as the provinces of the Republic:
(a) Eastern Cape;
(b) Eastern Transvaal;
(c) KwaZulu/Natal; [Para. (c) amended by s. 1 of Act 2 of 1994.] (d) Northern Cape;
(e) Northern Transvaal;
(f) North-West;
(g) Orange Free State;
(h) Pretoria-Witwatersrand-Vereeniging; and
(i) Western Cape:

125 Provincial Legislature

(1) There shall be a legislature for each province.
(2) The legislative authority of a province shall, subject to this Constitution, vest in the provincial legislature, which shall have the power to make laws for the province in accordance with this Constitution.
(3) Laws made by a provincial legislature shall, subject to any exceptions as may be provided for by an Act of Parliament, be applicable only within the territory of the province.

126 Legislative competence of provinces

(1) A provincial legislature shall be competent, subject to subsections (3) and (4), to make laws for the province with regard to all matters which fall within the functional areas specified in Schedule 6. [Sub-s. (1) substituted by s. 2 (a) of Act 2 of 1994.]

(2) The legislative competence referred to in subsection (1), shall include the competence to make laws which are reasonably necessary for or incidental to the effective exercise of such legislative competence.

(2A) Parliament shall be competent, subject to subsections (3) and (4), to make laws with regard to matters referred to in subsections (1) and (2). [Sub-s. (2A) inserted by s. 2 (b) of Act 2 of 1994.]

(3) A law passed by a provincial legislature in terms of this Constitution shall prevail over an Act of Parliament which deals with a matter referred to in subsection (1) or (2) except in so far as-

(a) the Act of Parliament deals with a matter that cannot be regulated effectively by provincial legislation;

(b) the Act of Parliament deals with a matter that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic;

(c) the Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services;

(d) the Act of Parliament is necessary for the maintenance of economic unity, the protection of the environment, the promotion of interprovincial commerce, the protection of the common market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security; or

(e) the provincial law materially prejudices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies. [Sub-s. (3) substituted by s. 2 (c) of Act 2 of 1994.]

(4) An Act of Parliament shall prevail over a provincial law, as provided for in subsection (3), only if it applies uniformly in all parts of the Republic.

(5) An Act of Parliament and a provincial law shall be construed as being consistent with each other, unless, and only to the extent that, they are, expressly or by necessary implication, inconsistent with each other.

(6) A provincial legislature may recommend to Parliament the passing of any law relating to any matter in respect of which such legislature is not competent to make laws or in respect of which an Act of Parliament prevails over a provincial law in terms of subsection (3).

127 Composition of provincial legislature

(1) A provincial legislature shall consist of not fewer than 30 and not more than 100 members elected in accordance with the system of proportional representation of voters provided for in Schedule 2 and the Electoral Act, 1993.

(2) The number of seats in a provincial legislature shall, subject to subsection (1), be determined in accordance with Schedule 2.

(3) The members of a provincial legislature shall be elected from provincial lists of party candidates for the province in question. [Date of commencement of s. 127: 9 March 1994.]

128 Duration and dissolution of provincial legislatures

(1) A provincial legislature, as constituted in terms of an election of such legislature under this Constitution, shall, subject to subsection (2), continue for five years as from the date of such election, at the expiry of which it shall be dissolved.

(2) If during the period referred to in subsection (1) a provincial legislature is dissolved in terms of section 154 (1) or (3) (c) or 162, the provincial legislature as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the provincial legislature held in pursuance of such dissolution.

(3) Notwithstanding any dissolution of a provincial legislature-

(a) every person who at the date of the dissolution is a member of the provincial legislature shall remain a member thereof;

(b) the provincial legislature shall remain competent to perform its functions; and

(c) the Premier of the province shall be competent to summon the provincial legislature by proclamation in the Provincial Gazette to an extraordinary sitting for the dispatch of urgent business, during the period for which the provincial legislature continues in terms of subsection (2) after the dissolution.

129 Elections

(1) If a provincial legislature is dissolved in terms of section 128 (1), 154 (1) or (3) (c) or 162, the Premier of the province shall upon such dissolution, by proclamation in the Provincial Gazette call an election of such legislature, which election shall take place within 90 days after the dissolution of the legislature on a date or dates specified in the proclamation.

(2) An election referred to in subsection (1), shall be conducted in accordance with the Electoral Act, 1993.

130 Sittings of provincial legislature

(1) The Secretary of a provincial legislature shall convene such legislature within seven days after an election of such legislature.

(2) The provincial legislature shall sit during such periods and on such days and during such hours as it may determine: Provided that the Premier of a province may at any time by proclamation in the Provincial Gazette summon the provincial legislature to an extraordinary sitting for the dispatch of urgent business.

131 Speaker and Deputy Speaker of provincial legislature

(1) At its first sitting after it has been convened under section 130 (1), and after the election of the Premier of the province, a provincial legislature with a judge of the Supreme Court designated by the Chief Justice acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker of such legislature.

(2) The provisions of Schedule 5 and section 41 (3) to (10) shall apply mutatis mutandis in respect of the Speaker and the Deputy Speaker of a provincial legislature.

132 Qualification for membership of provincial legislatures

(1) No person shall be qualified to become or remain a member of a provincial legislature unless he or she is qualified to become a member of the National Assembly.

(2) A member of a provincial legislature who is elected as the Premier or appointed as a member of the Executive Council of a province shall for the purposes of section 42 (1) (e) be deemed not to hold an office of profit under the Republic.

(3) The provisions of section 40 (2), (3), (4) and (5) shall mutatis mutandis apply to a person nominated as a candidate for election to a provincial legislature, and in any such application a reference in that section to a regional list shall be construed as a reference to a provincial list as contemplated in Schedule 2. [Date of commencement of s. 132: 9 March 1994.]

133 Vacation of seats and filling of vacancies

(1) A member of a provincial legislature shall vacate his or her seat if he or she-

(a) ceases to be eligible to be a member of the provincial legislature in terms of section 132;

(b) ceases to be a member of the party which nominated him or her as a member of the provincial legislature;

(c) resigns his or her seat by submitting his or her resignation in writing to the Secretary of the provincial legislature;

(d) absents himself or herself voluntarily from sittings of the provincial legislature for 30 consecutive sitting days, without having obtained the leave of the provincial legislature in accordance with the rules and orders; or

(e) becomes a member of the National Assembly or the Senate.

(2) The provisions of section 44 (1) and (2) shall apply mutatis mutandis in respect of the filling of vacancies in a provincial legislature, and in any such application a reference to-

(a) the National Assembly shall be construed as a reference to a provincial legislature; and

(b) a list of party candidates shall be construed as a reference to a list referred to in section 127 (3).

(3) A nomination in terms of this section shall be submitted in writing to the Speaker of the provincial legislature in question.

Executive authority of provinces

(1) The executive authority of a province shall vest in the Premier of the province, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.

(2) A province shall have executive authority over all matters in respect of which such province has exercised its legislative competence, matters assigned to it by or under section 235 or any law, and matters delegated to it by or under any law.

145 Election of Premiers

(a) The provincial legislature of a province shall at its first sitting after it has been convened in terms of section 130(1), elect one of its members as the Premier of the province.

(b) A provincial legislature shall thereafter, as often as it again becomes necessary to elect a Premier, elect one of its members as the Premier of the province.

(c) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Premier of a province.

(2) A judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over an election referred to in subsection (1).

(3) The election of a Premier in terms of subsection (1) (b) shall take place at a time and on a date fixed by the judge so designated: Provided that-

(a)if such election of a Premier is occasioned by reason of a dissolution of the provincial legislature, it shall take place within 14 days after the election of the provincial legislature held in pursuance of such dissolution; or

(b)if suchelection of a Premier is occasioned by reason of a vacancy in the office of Premier, it shall take place within 30 days after the vacancy arose.

146 Tenure of and removal from office of Premiers

(1) The Premier of a province elected in terms of section 145 (1) shall, subject to subsection (2) and section 154(2), hold office-

(a)for the period referred to in section 128 (1); or

(b)if the provincial legislature is dissolved during such period, for the period until such dissolution, and shall thereafter remain in office until a Premier has been elected in terms of section 145 (1) (b) after the dissolution and has assumed office.

(2) The Premier of a province shall cease to hold office on a resolution adopted by the provincial legislature by a majority of at least two-thirds of all its members and impeaching the Premier on the ground of a serious violation of this Constitution or the other laws of the Republic or the province in question, or of misconduct or inability rendering him or her unfit to exercise and perform his or her powers and functions in accordance with section 147.

147 Responsibilities, powers and functions of Premiers

(1) The Premier of a province shall be responsible for the observance of the provisions of this Constitution and all other laws by the executive of the province, and shall be competent to exercise and perform the following powers and functions, namely-

(a)to assent to, sign and promulgate Bills duly passed by the provincial legislature;

(b)in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by the provincial legislature back for further consideration by such legislature;

(c)to convene meetings of the Executive Council;

(d)to appoint commissions of enquiry;

(e)to make such appointments as may be necessary under powers conferred upon him or her by this Constitution or any other law; and

(f)to proclaim referenda and plebiscites in terms of this Constitution or a provincial law.

(2) The Premier of a province shall exercise and perform all powers and functions assigned to him or her by this Constitution or any other law, except those specified in subsection (1) or where otherwise expressly or by implication provided in this Constitution, in consultation with the Executive Council of the province: Provided that the Executive Council may delegate its consultation function in terms of this subsection, with reference to any particular power or function of the Premier, to any member or members of the Executive Council.

148 Acting Premiers

(1) The Premier of a province shall appoint one of the members of the Executive Council of the province to act as Premier during his or her absence or temporary incapacity.

(2) Should it be necessary that an Acting Premier be appointed and the Premier is absent or unable to make such an appointment, or if the office of Premier is vacant, the other members of the Executive Council shall make such appointment.

(3) An Acting Premier shall while acting as Premier have all the powers and functions vested in the office of Premier.

149 Executive Councils

(1) The Executive Council of a province shall consist of the Premier and not more than 10 members appointed by the Premier in accordance with this section.

(2) A party holding at least 10 per cent of the seats in a provincial legislature and which has decided to participate in the Executive Council, shall be entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the provincial legislature relative to the number of seats held by the other participating parties.

(3) Executive Council portfolios shall for the purposes of subsection (2) be allocated mutatis mutandis in accordance with the formula set out in paragraphs (a) to (e) of section 88 (3), to the respective participating parties.

(4) The Premier of a province shall after consultation with the leaders of the participating parties-

(a)determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (3);

(b)appoint in respect of each such portfolio a member of the provincial legislature who is a member of the party to which that portfolio was allocated under paragraph (a), as the member of the Executive Council responsible for that portfolio;

(c)if it becomes necessary for the purposes of this Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (3);

(d)terminate any appointment under paragraph (b)-

(i)if he or she is requested to do so by the leader of the party of which the relevant member of the Executive Council is a member; or

(ii)if it becomes necessary for the purposes of this Constitution or in the interest of good government; or

(e)fill when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council.

(5) Subsection (4) shall be implemented in the spirit underlying the concept of a government of national unity, and the Premier and the other functionaries concerned shall for the purposes of subsection (4) endeavour to achieve consensus at all times: Provided that if consensus cannot be achieved on-

(a)the exercise of a power referred to in paragraph (a), (c) or (d) (ii) of that subsection, the Premier’s decision shall prevail;

(b)the exercise of a power referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the Premier’s party, the decision of the leader of the party of which such person is a member shall prevail; and

(c)the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the Premier’s party, the Premier’s decision shall prevail.

(6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members of the Executive Council shall vacate their portfolios but shall be eligible, where applicable, for re-appointment to other portfolios allocated to their respective parties in terms of the varied determination.

(7) The Premier or a member of the Executive Council shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief Justice for this purpose.

(8) No member of an Executive Council may take up any other paid employment, engage in activities inconsistent with his or her membership of the Executive Council, or expose himself or herself to any situation which carries with it the risk of a conflict between his or her responsibilities as a member of the Executive Council and his or her private interests.

(9) No member of the Executive Council shall use his or her position as such, or directly or indirectly use information entrusted confidentially to him or her in such capacity, to enrich himself or herself or any other person.

(10) There shall, subject to section 207 (2), be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier and to a member of an Executive Council of such province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature. [Sub-s. (10) substituted by s. 11 of Act 13 of 1994.]

150 Executive Council procedure

(1) Meetings of the Executive Council shall be presided over by the Premier.

(2) The Executive Council shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a government of national unity as well as the need for effective government.

151 Temporary assignment of powers and functions to Executive Council members

Whenever a member of an Executive Council of a province is absent or for any reason unable to exercise and perform any of the powers and functions assigned to him or her, or whenever a member of an Executive Council has vacated his or her office and a successor has not yet been appointed, the Premier may appoint any other member of the Council to act in the said member’s stead, either generally or in the exercise or performance of any specific power or function.

156 Levying of taxes by provinces

(1) A provincial legislature shall be competent to raise taxes, levies and duties, other than income tax or value-added or other sales tax, and to impose surcharges on taxes, provided that-

(a)it is authorised to do so by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission on the draft text of any such Act have been submitted to and considered by Parliament; and
(b)there is no discrimination against non-residents of that province who are South African citizens. [Sub-s. (1) amended by s. 4 (a) of Act 2 of 1994.]

(1A) Sections 59 (2) and 60 shall not apply to an Act referred to in subsection (1), and such an Act shall be passed by the National Assembly and the Senate sitting separately. [Sub-s. (1A) inserted by s. 4 (b) of Act 2 of 1994.]

(1B) A provincial legislature shall notwithstanding subsection (1) have exclusive competence within its province to impose taxes, levies and duties (excluding income tax or value- added or other sales tax) on-
(a)casinos;

(b)gambling, wagering and lotteries; and

(c)betting. [Sub-s. (1B) inserted by s. 4 (b) of Act 2 of 1994.]

(2) A provincial legislature shall not be entitled to levy taxes detrimentally affecting national economic policies, inter-provincial commerce or the national mobility of goods, services, capital and labour.

(3) A provincial legislature shall be competent to enact legislation authorising the imposition of user charges: Provided that-

(a)such legislation may only be enacted after consideration by the provincial legislature of any recommendations made by the Financial and Fiscal Commission concerning the criteria according to which such charges should be determined; and

(b)there is non discrimination against non-residents of that province who are South African citizens. [Sub-s. (3) amended by s. 4 (c) of Act 2 of 1994.]

157 Raising of loans by provinces

(1) A province-

(a)shall, subject to subsection (2), not be competent to raise loans for current expenditure; and

(b)shall be competent to raise loans for capital expenditure, provided it does so within the framework of reasonable norms and conditions prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Parliament. [Para. (b) substituted by s. 5 (a) of Act 2 of 1994.] (1A) Sections 59 (3) and 60 shall not apply to an Act referred to in subsection (1) (b), and such an Act shall be passed by the National Assembly and the Senate sitting separately. [Sub-s. (1A) inserted by s. 5 (b) of Act 2 of 1994.]

(2) Loans referred to in subsection (1) (a) may be raised for bridging finance during a fiscal year, subject to the condition that they shall be redeemed within 12 months and subject to such further, reasonable conditions as may be prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Parliament. [Sub-s. (2) substituted by s. 5 (c) of Act 2 of 1994.]

(3) A province may not guarantee a loan unless-

(a)the Financial and Fiscal Commission has verified the need for a guarantee and recommended that it be given; and

158 Revenue allocations by national government Financial allocations by the national government

(a)to a provincial or local government, shall be made in terms of an appropriation Act; and

(b)to a local government, shall ordinarily be made through the provincial government of the province in which the local government is situated. [S. 158 substituted by s. 6 of Act 2 of 1994.]

161 Development of provincial constitutional dispensation

(1) The development of a system of provincial government shall receive the priority attention of the Constitutional Assembly, and in this regard it shall take into consideration any recommendations of the Commission on Provincial Government and any comments thereon by the respective provincial governments.

(2) Any recommendations of the Commission to the Constitutional Assembly shall include draft provisions for inclusion in the new constitutional text in so far as they relate to matters falling within the ambit of the Commission’s object in terms of section 164.

(3) The Constitutional Assembly shall deal with such draft provisions in the same manner as it is required in terms of this Constitution to deal with other constitutional proposals.

(4) Draft provisions recommended by the Commission which are not adopted by the Constitutional Assembly shall lapse, except if the Constitutional Assembly by resolution of a majority of the members present and voting refers the recommended provisions back to the Commission for further consideration.

(5) Draft provisions referred back to the Commission may again be presented to the Constitutional Assembly, provided that if amended in one or more substantive respects, the provisions of this section regarding the acceptance, rejection or referral of the recommendations of the Commission shall apply mutatis mutandis.

162 Election of new provincial governments

A provincial government may at any time after the commencement of a provincial constitution contemplated in section 160 or of the constitutional dispensation contemplated in section 161, petition the Constitutional Assembly to dissolve its provincial legislature and to call an election for the establishment of a new provincial legislature and executive authority in that province.

Commission on Provincial Government

163 Establishment of Commission on Provincial Government

There is hereby established a Commission on Provincial Government consisting of not less than 10 and not more than 15 members appointed by the President subject to section 165.

164 Object and functions of Commission

(1) The object of the Commission is to facilitate the establishment of provincial government, and the Commission shall for the achievement of that object be competent-

(a)to advise the Constitutional Assembly on the development of a constitutional dispensation with regard to provincial systems of government;

(b)to advise the national government or a provincial government on the establishment and consolidation of administrative institutions and structures in a province or on any matter arising out of the application of section 124; and

(c)to make recommendations to the national government or a provincial government on the rationalisation of statutory enactments or public sector resources directed at the introduction and maintenance of an effective system of provincial government.

(2) Advice to the Constitutional Assembly in terms of subsection (1) (a), shall include recommendations in the form of draft constitutional provisions regarding-
(a)the finalisation of the number and the boundaries of the provinces of the Republic;

(b)the constitutional dispensations of such provinces, including the constitutional structures within such provinces as well as the method of their election and their authority, functions and procedures;

(c)measures, including transitional measures, that provide for the phasing in of new provincial constitutional dispensations;

(d)the final delimitation of powers and functions between national and provincial institutions of government, with due regard to the criteria that are set out in subsection (3);

(e)fiscal arrangements between the institutions of national government and those of the provincial governments;

(f)the powers and functions of local governments; and

(g)any matter which the Commission considers to be relevant or ancillary to its functions.

(3) In carrying out its functions the Commission shall, inter alia, take into consideration-

(a)the provisions of this Constitution;

(b)the Constitutional Principles set out in Schedule 4;

(c)historical boundaries, including those set out in Part 1 of Schedule 1, former provincial boundaries, magisterial district boundaries and infrastructures;

(d)administrative considerations, including the availability or non-availability of infrastructures and nodal points for service;

(e)the need to rationalise existing structures;

(f)cost-effectiveness of government, administration and the delivery of services;

(g)the need to minimise inconvenience;

(h)demographic considerations;

(i)economic viability;

(j)developmental potential; and

(k)cultural and language realities.

165 Constitution of Commission

(1) The members of the Commission shall be appointed by the President within 30 days of the commencement of this Constitution.

(2) Unless the President otherwise determines, the members of the Commission shall be appointed in a full-time capacity.

(3) At least one member of the Commission shall be appointed from each province with the concurrence of the Premier of the province.

(4) A member of the Commission shall perform his or her functions fairly, impartially and independently.

(5) A member appointed in a full-time capacity shall not perform or commit himself or herself to perform remunerative work outside his or her functions as a member of the Commission.

(6) A member of the Commission shall not hold office in any political party or political organisation.

166 Chairperson and Deputy Chairperson

(1) The President shall designate one of the members of the Commission as the Chairperson and another as the Deputy Chairperson.

(2)(a) If the Chairperson is absent or unable to perform his or her functions as chairperson, or when there is a vacancy in the office of Chairperson, the Deputy Chairperson shall act as Chairperson, and if both the Chairperson and the Deputy Chairperson are absent or unable to perform the functions of the Chairperson, the Commission shall elect another member to act as Chairperson.

(b) While acting as Chairperson the Deputy Chairperson or such member may exercise the powers and shall perform the functions of the Chairperson.
167 Vacation of office and filling of vacancies

(1) A member of the Commission shall vacate his or her office if he or she resigns or if he or she becomes disqualified in terms of section 165 to hold office or is removed from office under subsection (2).

(2) A member of the Commission may be removed from office by the President only on the grounds of misbehaviour, incapacity or incompetence established by a judge of the Supreme Court after an enquiry.

(3) If a member of the Commission ceases to hold office, the President may, subject to section 165, appoint a person to fill the vacancy.

168 Meetings of Commission

(1) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the Chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the Chairperson.

(2) A quorum for a meeting of the Commission shall not be less than one half of all its members.

(3) A decision of a majority of the members of the Commission shall constitute a decision of the Commission and in the event of an equality of votes the Chairperson shall have a casting vote in addition to his or her deliberative vote.

(4) All the decisions of the Commission shall be recorded.

169 Committees

(1) The Commission may establish committees from among its members.

(2) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson.

(3) The Commission may, subject to such directions as, it may issue from time to time-

(a)delegate any power granted to it by or under section 164 to such a committee; and

(b)authorise such a committee to perform any function assigned to the Commission by section 164.

(4) The Commission shall not be divested of a power so delegated and the performance of a function so authorised, and may amend or withdraw any decision of a committee.

Electoral/Political Party Reform: Interim Constitution Accord

Written by

National Peace Accord of 1991, Article 1.3:

The fundamental rights and responsibilities derive from established democratic principles namely:

• democratic sovereignty derives from the people, whose right it is to elect their government and hold it accountable at the polls for its conduct of their affairs;

• the citizens must therefore be informed and aware that political parties and the media must be free to impart information and opinion;

• there should be an active civil society with different interest groups freely participating therein;

• political parties and organisations, as well as political leaders and other citizens, have an obligation to refrain from incitement to violence and hatred.

National Peace Accord of 1991, Article 2.2:

All political parties and organisations shall actively contribute to the creation of a climate of democratic tolerance by:

• publicly and repeatedly condemning political violence and encouraging among their followers an understanding of the importance of democratic pluralism and a culture of political tolerance; and

• acting positively, also vis-à-vis all public authorities including local and traditional authorities, to support the right of all political parties and organizations to have reasonable freedom of access to their members, supporters and other persons in rural and urban areas, whether they be housed on public or private property.

National Peace Accord of 1991, Article 2.3:

No political party or organisation or any official or representative of any such party, shall:

• kill, injure, apply violence to, intimidate or threaten any other person in connection with that person’s political beliefs, words, writings or actions;

• remove, disfigure, destroy, plagiarise or otherwise misrepresent any symbol or other material of any other political party or organisation;

• interfere with, obstruct or threaten any other person or group travelling to or from or intending to attend, any gathering for political purposes;

• seek to compel, by force or threat of force, any person to join any party or organisation, attend any meeting, make any contribution, resign from any post or

office, boycott any occasion or commercial activity or withhold his or her labour or fail to perform a lawful obligation; or

• obstruct or interfere with any official or representative of any other political party or organisation’s message to contact or address any group of people”

Constitution of the Republic of South Africa Act 200 of 1993, Constitutional Principle, Schedule 4, Article VIII:

There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters’ roll, and, in general, proportional representation.

Constitutional Reform: Interim Constitution Accord

Written by

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 68 Constitution-making Body:

(1) The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, shall be the Constitutional Assembly.

(2) The Constitutional Assembly shall draft and adopt a new constitutional text in accordance with this Chapter.

(3) (a) The first sitting of the Constitutional Assembly shall be convened by the President of the Senate not later than seven days as from the first sitting of the Senate under this Constitution.

(b) Any subsequent sittings of the Constitutional Assembly shall be convened by the Chairperson of the Constitutional Assembly after consultation with the Speaker and the President of the Senate.

(4) Subject to the rules and orders contemplated in section 70 and save where clearly inappropriate, sections 55 and 56 and the provisions of this Constitution with regard to joint sittings of the National Assembly and the Senate shall apply mutatis mutandis in respect of the Constitutional Assembly.

Legislative Branch Reform: Interim Constitution Accord

Written by

36: Constitution of Parliament

Parliament shall consist of the National Assembly and the Senate.

37 Legislative authority of Republic

The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution.

38 Duration of Parliament

(1) Parliament as constituted in terms of the first election under this Constitution shall, subject to subsection (2), continue for five years as from the date of the first sitting of the National Assembly under this Constitution.

(2) If during the period referred to in subsection (1) Parliament is dissolved under section 73 (9) or 93 (1) or (3) (c), the Houses of Parliament as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the National Assembly held in pursuance of such dissolution.

(3) Notwithstanding any dissolution of Parliament-

(a) every person who at the date of the dissolution is a member of the National Assembly or the Senate shall remain a member thereof;

(b) the National Assembly and the Senate shall remain competent to perform their functions; and

(c) the President shall be competent to summon Parliament by proclamation in the Gazette to an extraordinary sitting for the despatch of urgent business, during the period for which the Houses of Parliament continue in terms of subsection (2) after the dissolution.

(4) If Parliament is dissolved and a new Parliament is constituted as contemplated in section 39, this section shall apply mutatis mutandis in respect of such new Parliament save that the new Parliament shall continue for the unexpired part of the period referred to in subsection (1).

39 Elections

(1) Upon a dissolution of Parliament in terms of section 73 (9) or 93 (1) or (3) (c), the President shall by proclamation in the Gazette-

(a) call an election of the National Assembly, which election shall take place within 90 days after the dissolution of Parliament on a date or dates specified in the proclamation; and

(b) request parties represented in the provincial legislatures to nominate persons as senators for the respective provinces in accordance with section 48 (1) (b).(2) An election referred to in subsection (1) (a) shall be held in accordance with the Electoral Act, 1993.

The National Assembly: 40: Composition of National Assembly

(1) The National Assembly shall consist of 400 members elected in accordance with the system of proportional representation of voters as provided for in Schedule 2 and the Electoral Act, 1993.

(2) A person nominated as a candidate for election to the National Assembly on a regional list contemplated in Schedule 2, shall, subject to subsection (3), at the time of the nomination be ordinarily resident in the province in respect of which that regional list applies.

(3) Notwithstanding subsection (2), a regional list may contain the names of candidates who are not ordinarily resident in the province in respect of which that list applies, provided that no such list shall contain the names of more than one such candidate or more than 10 per cent of the total number of candidates the party concerned is entitled to nominate on that list, whichever is the greater number.

(4) For the purposes of this section, a person shall be deemed to be ordinarily resident at the place where he or she normally lives and to which he or she returns regularly after any period of temporary absence, including the place where he or she was previously so ordinarily resident and to which he or she returns regularly after any period of absence.

(5) If a regional list contemplated in subsection (2) contains more names of candidates not ordinarily resident in the province in respect of which that list applies than are permissible under that subsection, the surplus of such names so contained shall be deleted mutatis mutandis in accordance with section 22 (8) of the Electoral Act, 1993. [Date of commencement of s. 40: 9 March 1994.]

41 Speaker and Deputy Speaker of National Assembly

(1) At its first sitting after it has been convened under section 46 (2), and after the election of the President, the National Assembly, with the Chief Justice or a judge of the Supreme Court designated by him or her acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker.

(2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the Speaker and the Deputy Speaker.

(3) The Speaker shall be vested with all powers and functions assigned to him or her by this Constitution, an Act of Parliament and the rules and orders.

(4) If the Speaker is absent or for any reason unable to exercise or perform the powers or functions vested in the office of Speaker, or when the office of Speaker is vacant, the Deputy Speaker shall act as Speaker during the Speaker’s absence or inability or until a Speaker is elected.

(5) If any of the circumstances described in subsection (4) applies with reference to both the Speaker and the Deputy Speaker, a member of the National Assembly designated in terms of the rules and orders shall act as Speaker while the said circumstances prevail.

(6) The Deputy Speaker or the member designated under subsection (5), while acting as Speaker, may exercise the powers and shall perform the functions vested in the office of Speaker.

(7) The Speaker, the Deputy Speaker or any other member of the National Assembly designated for that purpose in terms of the rules and orders, shall preside over sittings of the National Assembly.

(8) While presiding at a sitting of the National Assembly, the Speaker, Deputy Speaker or other member presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes.

(9) The Speaker or Deputy Speaker shall vacate his or her office if he or she ceases to be a member of the National Assembly, and may be removed from office by resolution of the National Assembly, and may resign by lodging his or her resignation in writing with the Secretary to Parliament.

(10) If the office of Speaker or Deputy Speaker becomes vacant, the National Assembly, under the chairpersonship of the Chief Justice or a judge as provided in subsection (1), shall elect a member to fill the vacancy: Provided that the Speaker shall in such event preside at the election of the Deputy Speaker.

42 Qualification for membership of National Assembly

(1) No person shall become or remain a member of the National Assembly unless he or she is a South African citizen and is and remains qualified in terms of section 6 to vote in an election of the National Assembly, or if he or she-

(a) at the time of the first election of the National Assembly held under this Constitution is serving a sentence of imprisonment of more than 12 months without the option of a fine;

(b) at any time after the promulgation of this Constitution is convicted of an offence in the Republic, or outside the Republic if the conduct constituting such offence would have constituted an offence in the Republic, and for which he or she has been sentenced to imprisonment of more than 12 months without the option of a fine, unless he or she has received a pardon;

(c) is an unrehabilitated insolvent;

(d) is of unsound mind and has been so declared by a competent court; or

(e) holds any office of profit under the Republic: Provided that the following persons shall be deemed not to hold an office of profit under the Republic for the purpose of this paragraph, namely-

(i) an Executive Deputy President, a Minister or a Deputy Minister;

(ii) a person in receipt of a pension paid from public funds or from a pension fund aided by public funds;

(iii)a justice of the peace or appraiser; or

(iv) a member of any council, board, committee, commission or similar body established by or under law or a committee of the National Assembly who receives remuneration not in excess of an amount equal to his or her salary as a member of the National Assembly.

(2) For the purposes of subsection (1) (b) no person shall be deemed as having been convicted of an offence until any appeal against the conviction or sentence has been determined, or, if no appeal against the conviction or sentence has been noted, the time for noting such an appeal has expired. [Date of commencement of s. 42: 9 March 1994.]

43 Vacation of seats:

A member of the National Assembly shall vacate his or her seat if he or she-

(a) ceases to be eligible to be a member of the National Assembly in terms of section 42;

(b) ceases to be a member of the party which nominated him or her as a member of the National Assembly;

(c) resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament;

(d) without having obtained leave in accordance with the rules and orders, absents himself or herself voluntarily from sittings of the National Assembly or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the National Assembly or any such forum sat; or

(e) becomes a member of the Senate, a provincial legislature or a local government.

44 Filling of vacancies

(1) If a member of the National Assembly vacates his or her seat, the vacancy shall be filled by a person nominated in terms of subsection (2) by the party which nominated the vacating member.

(2) The party entitled in terms of subsection (1) to fill a vacancy shall nominate a person-

(a) whose name appears on that list of candidates of that party, compiled in terms of Schedule 2, from which the vacating member was nominated to the National Assembly; and

(b) who according to the order of preference of the candidates on such list is the next qualified and available person entitled in terms of Schedule 2 to represent that party in the National Assembly.

(3) A nomination in terms of this section shall be submitted in writing to the Speaker.

45 Oath or affirmation by members of National Assembly

Every member of the National Assembly, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a member nominated under section 44, before the Speaker.

46 Sittings of National Assembly

(1) The National Assembly shall sit at the Houses of Parliament in Cape Town, unless the Speaker, in accordance with the rules and orders and in consultation with the President of the Senate, directs otherwise on the grounds of public interest, security or convenience.

(2) The Chief Justice shall convene the National Assembly within 10 days after an election of the National Assembly.

(3) The National Assembly shall sit during such periods and on such days and during such hours as it may determine: Provided that the President may at any time by proclamation in the Gazette summon the National Assembly to an extraordinary sitting for the despatch of urgent business.

47 Quorum

The presence of at least one third or, when a vote is taken no a Bill, of at least one half of all the members of the National Assembly, other than the Speaker or other presiding member, shall be necessary to constitute a meeting of the National Assembly.

The Senate

48 Composition of Senate

(1) The Senate shall be composed of 10 senators for each province, nominated by the parties represented in a provincial legislature within 10 days of-

(a) the first sitting of such legislature after an election of the legislature; or

(b) an election of the National Assembly held in pursuance of a dissolution of Parliament.

(2) Each party represented in a provincial legislature shall be entitled to nominate a senator or senators for the relevant province in accordance with the principle of proportional representation as determined by the following formula:

(a) The number of senators each party shall be entitled to nominate, shall subject to paragraph (b) be determined by multiplying the number of seats such party holds in the provincial legislature by 10 and dividing the result by the total number of seats in the legislature plus one.

(b) If the application of paragraph (a) yields a surplus not absorbed by the number of senators allocated to that party, such surplus shall compete with similar surpluses accruing to any other party or parties, and any undistributed senatorial seat or seats shall be allocated to the party or parties concerned in sequence of the highest surplus.

(3) A member of a provincial legislature or local government nominated as a senator in terms of this section, shall vacate his or her seat in the provincial legislature or local government upon his or her acceptance of such nomination.

49 President and Deputy President of Senate

(1) At its first sitting after it has been convened under section 53 (2), and before proceeding to dispatch any other business, the Senate, with the Chief Justice or a judge of the Supreme Court designated by him or her acting as the chairperson, shall elect one of its members to be the President of the Senate, and shall thereafter elect another of its members to be the Deputy President of the Senate.

(2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the President and the Deputy President of the Senate.

(3) The President of the Senate shall be vested with all the powers and functions assigned to him or her by this Constitution, an Act of Parliament and the rules and orders.

(4) If the President of the Senate is absent or for any reason unable to exercise and perform the powers and functions vested in the office of President of the Senate, or when the office of President of the Senate is vacant, the Deputy President of the Senate shall act as President of the Senate during the absence or inability of the President of the Senate or until a President of the Senate is elected.

(5) If any of the circumstances described in subsection (4) applies with reference to both the President and the Deputy President of the Senate, a senator designated in terms of the rules and orders shall act as President of the Senate while the said circumstances prevail.

(6) The Deputy President of the Senate or the senator designated under subsection (5), while acting as resident of the Senate, may exercise the powers and shall perform the functions vested in the office of President of the Senate.

(7) The President or Deputy President of the Senate or any other senator designated for that purpose in terms of the rules and orders shall preside over sittings of the Senate.

(8) While presiding at a sitting of the Senate, the President or Deputy President of the Senate or other senator presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes.

(9) The President or Deputy President of the Senate shall vacate his or her office if he or she ceases to be a senator, and may be removed from office by resolution of the Senate, and may resign by lodging his or her resignation in writing with the Secretary to Parliament.

(10) If the office of President or Deputy President of the Senate becomes vacant, the Senate, under the chairpersonship of the Chief Justice or a judge as provided in subsection (1), shall elect a member to fill the vacancy:

Provided that the President of the Senate shall in such event preside at the election of the Deputy President of the Senate.

50 Qualification for membership of Senate

No person shall be qualified to become or remain a senator unless he or she is or remains qualified to become a member of the National Assembly.

51 Vacation of seats by senators and filling of vacancies

(1) A senator shall vacate his or her seat if he or she-

(a)ceases to qualify to be a senator in terms of section 50;

(b)ceases to be a member of the party which nominated him or her as a senator in terms of section 48;

(c)resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament;

(d)without having obtained leave in accordance with the rules and orders, absents himself or herself voluntarily from sittings of the Senate or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the Senate or any such forum sat; or

(e)becomes a member of the National Assembly, a provincial legislature or a local government.

(2)

(a) If a senator vacates his or her seat, the vacancy shall be filled by a person nominated by the party which nominated the vacating senator and who is qualified and available to fill the vacancy.

(b) A nomination in terms of this subsection shall be submitted in writing to the President of the Senate.

(3) If a provincial legislature is dissolved, the senators from the province in question shall vacate their seats in the Senate with effect from the date of the first sitting of such legislature after the election of

such legislature held in pursuance of such dissolution, whereupon the vacancies shall be filled in terms of section 48 (1) (a).

52 Oath or affirmation by senators

Every senator, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a senator nominated under section 51 (2), before the President of the Senate.

53 Sittings of Senate

(1) The Senate shall sit at the Houses of Parliament in Cape Town, unless the President of the Senate, in accordance with the rules and orders and in consultation with the Speaker, directs otherwise on the grounds of public interest, security or convenience.

(2) The Chief Justice shall after an election of the National Assembly convene the Senate as soon as is practically possible, but not later than 30 days after such election.

(3) The Senate shall sit during such periods and on such days and during such hours as it may determine:

Provided that the President may at any time by proclamation in the Gazette summon the Senate to an extraordinary sitting for the dispatch of urgent business.

54 Quorum

The presence of at least one third or, when a vote is taken on a Bill, of at least one half of all the senators, other than the President of the Senate or other presiding senator, shall be necessary to constitute a meeting of the Senate.

The National Assembly and the Senate

55 Powers, privileges and immunities of Parliament and benefits of members

(1) Parliament shall have full power to control, regulate and dispose of its internal affairs, and shall have all such other powers, privileges and immunities as may, subject to this Constitution, be prescribed by an Act of Parliament.

(2) Subject to the rules and orders there shall be freedom of speech and debate in or before Parliament and any committee thereof, and such freedom shall not be impeached or questioned in any court.

(3) A member of Parliament shall not be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he or she has said, produced or submitted in or before or to Parliament or any committee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to Parliament or any committee thereof.

(4) There shall, subject to section 207 (2), be paid out of and as a charge on the National Revenue Fund to a member of the National Assembly or the Senate such remuneration and allowances as may be prescribed by or determined under an Act of Parliament. [Sub-s. (4) substituted by s. 1 of Act 13 of 1994.]

56 Penalty for sitting or voting when disqualified by law

Any person who in terms of this Constitution is disqualified to sit as a member of a House and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as a member of a House in question, shall be liable to a penalty determined by the rules and orders for each day on which he or she so sits or votes, which may be recovered for credit of the National Revenue Fund by action in a court of law.

57 Joint sittings of Houses

(1) Whenever necessary the National Assembly and the Senate shall convene in a joint sitting, which shall be presided over by the Speaker, the President of the Senate or any other member of the National Assembly or the Senate as may be determined by the rules and orders.

(2) While presiding at a joint sitting the Speaker, the President of the Senate or the other member presiding, shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes.

(3) Without derogating from the power of Parliament to regulate its business and proceedings, the President of the Republic may, whenever he or she deems it desirable, request by message to the Speaker and the President of the Senate that a joint sitting of the National Assembly and the Senate be convened.

58 Rules and orders

(1) The National Assembly or the Senate may make rules and orders in connection with the conduct of its business and proceedings, and the National Assembly and the Senate may make joint rules and orders in connection with the conduct of their joint business and proceedings, including rules and orders regulating-

(a)the establishment, constitution, powers and functions, procedures and duration of committees of Parliament;

(b)restrictions on access to such committees;

(c)the competency of any such committee to perform or dispose of its business and proceedings at venues other than the Houses of Parliament; and

(d)the designation of members of the National Assembly and the Senate as presiding officers to preside over sittings of the National Assembly or the Senate or joint sittings of the National Assembly and the Senate, as the case may be, as and when the Speaker or the President of the Senate so requires.

(2) For the purposes of exercising its powers and performing its functions, any committee established under subsection (1) (a) shall have the power to summon persons to appear before it to give evidence on oath or affirmation and to produce any documents required by it, and to receive representations from interested persons.

59 Ordinary Bills

(1) An ordinary Bill may be introduced in either the National Assembly or the Senate and shall for its passing by Parliament, subject to subsection (2), be required to be adopted by each House.

(2) An ordinary Bill passed by one House and rejected by the other shall be referred to a joint committee consisting of members of both Houses and of all the parties represented in Parliament and willing to participate in the joint committee, to consider and report on any proposed amendments to the Bill, whereafter the Bill shall be referred to a joint sitting of both Houses, at which it may be passed with or without amendment by a majority of the total number of members of both Houses.

(3) All Bills, except the new constitutional text and those referred to in sections 60 (1), 61 and 62, shall for the purposes of this Constitution be considered to be ordinary Bills.

60 Money Bills

(1) Bills appropriating revenue or moneys or imposing taxation shall be introduced in the National Assembly only.

(2) Bills appropriating revenue or moneys for services provided by the national government shall deal with such appropriation only.

(3) The National Assembly shall not consider any Bill appropriating revenue or moneys unless such Bill was initiated by the Minister responsible for national financial matters, or by any other Minister acting with the concurrence of the said Minister.

(4) The National Assembly shall not pass a Bill referred to in subsection (1) unless it has been considered and reported on by a joint committee of both Houses and, in so far as it may be required in terms of this Constitution, by the Financial and Fiscal Commission.

(5) A Bill shall not be deemed to appropriate revenue or moneys or to impose taxation by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties.

(6) The Senate may not amend any Bill in so far as it appropriates revenue or moneys or imposes taxation.

(7) If the National Assembly passes a Bill imposing taxation or dealing with the appropriation of revenue or moneys and the Senate rejects it or proposes amendments to it or fails to pass it within 30 days after it has been passed by the National Assembly, the Bill shall be referred back to the National Assembly for reconsideration.

(8) The National Assembly may pass a Bill referred to in subsection (7), with or without amendment, and if passed by the National Assembly such Bill shall be deemed to have been passed by Parliament.

61 Bills affecting certain provincial matters

Bills affecting the boundaries or the exercise or performance of the powers and functions of the provinces shall be deemed not to be passed by Parliament unless passed separately by both Houses and, in the case of a Bill, other than a Bill referred to in section 62, affecting the boundaries or the exercise or performance of the powers or functions of a particular province or provinces only, unless also approved by a majority of the senators of the province or provinces in question in the Senate.

62 Bills amending Constitution

(1) Subject to subsection (2) and section 74, a Bill amending this Constitution shall, for its passing by Parliament, be required to be adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses.

(2) No amendment of sections 126 and 144 shall be of any force and effect unless passed separately by both Houses by a majority of at least two-thirds of all the members in each House: Provided that the boundaries and legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature.

63 Requisite majorities

Save where otherwise required in this Constitution, all questions before the National Assembly or the Senate or before the National Assembly and the Senate in a joint sitting, shall be determined by a majority of votes cast.

64 Assent to Bills

(1) A Bill duly passed by Parliament in accordance with this Constitution shall be assented to by the President subject to section 82 (1) (b).

(2) A Bill referred to in subsection (1) to which the President has assented and a copy of which he or she has signed, shall upon its promulgation be an Act of Parliament.

65 Signature and enrollment of Acts

(1) An Act of Parliament referred to in section 64

(2) shall be enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court in such official South African languages as may be required in terms of section 3, and copies of the Act so enrolled shall be conclusive evidence of the provisions of the Act.

(2) In the case of a conflict between copies of an Act enrolled in terms of subsection (1), the copy signed by the President shall prevail.

(3) The public shall have the right of access to copies of an Act so enrolled, subject to such laws as may be passed by Parliament to protect the safety and durability of the said copies and with due regard to the convenience of the Registrar’s staff.

66 Rights and duties of President, Executive Deputy Presidents, Ministers and Deputy Ministers in Houses

The President, an Executive Deputy President, a Minister and a Deputy Minister shall be entitled to sit and to speak in any House and at a joint sitting of the Houses, but may not vote in the House of which he or she is not a member or, if he or she is not a member of any of the Houses, in any House or at a joint sitting of the Houses. [S. 66 substituted by s. 1 of Act 14 of 1994.]

67 Public access to Parliament

Sittings of the National Assembly or the Senate and joint sittings of the National Assembly and the Senate shall be held in public, and the public, including the media, shall have access to such sittings: Provided that reasonable measures may be taken to regulate such access and to provide for the search and, where appropriate, the refusal of entry or the removal of any person.

Executive Branch Reform: Interim Constitution Accord

Written by

“Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 75 Executive authority of the Republic:

The executive authority of the Republic with regard to all matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 76 Head of State:

The President shall be the Head of State.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 77 Election of President:

(1)(a) The National Assembly shall at its first sitting after it has been convened in terms of Section 46 (2) elect one of its members as the President.

(b) The National Assembly and the Senate shall thereafter, as often as it again becomes necessary to elect a President, elect at a joint sitting one of the members of the National Assembly as the President.

(2)(a) The Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over any sitting at which an election referred to in Subsection (1) takes place.

(b) An election referred to in Subsection (1) shall be conducted in accordance with Schedule 5.

(3) The election of a President in terms of Subsection (1)(b) shall take place at a time and on a date fixed by the Chief Justice: Provided that:

(a) if such an election of a President is occasioned by reason of a dissolution of Parliament, it shall take place within 10 days after the Senate was convened after the election of the National Assembly held in pursuance of such dissolution; or

(b) if such an election of a President is occasioned by reason of a vacancy in the office of President, it shall take place within 30 days after the vacancy arose.

(4) On being elected, the President shall vacate his or her seat in the National Assembly.

(5) During the period in which the President continues in office in terms of Section 80 (1)(b), he or she shall for the purposes of Section 42 (1)(e) be deemed not to hold an office of profit under the Republic.

Powersharing Transitional Government: Interim Constitution Accord

Written by

“Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 36 Constitution of Parliament:

Parliament shall consist of the National Assembly and the Senate.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 37 Legislative authority of Republic:

The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 38 Duration of Parliament:

(1) Parliament as constituted in terms of the first election under this Constitution shall, subject to Subsection (2), continue for five years as from the date of the first sitting of the National Assembly under this Constitution.

(2) If during the period referred to in Subsection (1) Parliament is dissolved under Section 73 (9) or 93 (1) or (3)(c), the Houses of Parliament as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the National Assembly held in pursuance of such dissolution.

(3) Notwithstanding any dissolution of Parliament:

(a) every person who at the date of the dissolution is a member of the National Assembly or the Senate shall remain a member thereof;

(b) the National Assembly and the Senate shall remain competent to perform their functions; and

(c) the President shall be competent to summon Parliament by proclamation in the Gazette to an extraordinary sitting for the despatch of urgent business, during the period for which the Houses of Parliament continue in terms of Subsection (2) after the dissolution.

(4) If Parliament is dissolved and a new Parliament is constituted as contemplated in Section 39, this section shall apply mutatis mutandis in respect of such new Parliament save that the new Parliament shall continue for the unexpired part of the period referred to in Subsection (1).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 84 Executive Deputy Presidents:

(1) Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly.

(2) Should no party or only one party hold 80 or more seats in the National Assembly, the party holding the largest number of seats and the party holding the second largest number of seats shall each be entitled to designate one Executive Deputy President from among the members of the National Assembly.

(3) On being designated as such, an Executive Deputy President may elect to vacate or not to vacate his or her seat in the National Assembly.

(4) Section 81 shall apply mutatis mutandis to an Executive Deputy President.

(5) An Executive Deputy President may exercise the powers and shall perform the functions vested in the office of Executive Deputy President by this Constitution or assigned to him or her by the President.

(6) An Executive Deputy President shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 89 Cabinet procedure:

(1) Meetings of the Cabinet shall be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents shall preside over meetings of the Cabinet in turn unless the exigencies of government and the spirit underlying the concept of a government of national unity otherwise dictate.

(2) The Cabinet shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a government of national unity as well as the need for effective government.

(3) Where an Executive Deputy President presides over a meeting of the Cabinet otherwise than in the capacity of Acting President, a decision in the Cabinet on any matter shall be submitted to the President before its implementation and shall upon its ratification by the President be deemed to be a decision taken in consultation with the Cabinet in accordance with section 82 (3).”

Cease Fire: Interim Constitution Accord

Written by

The Pretoria Minute 1990, Article 3:

In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, no further armed actions and related activities by the ANC and its military wing Umkhonto we Sizwe will take place. It was agreed that a working group will be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.”

Verification/Monitoring Mechanism: Accord for a Firm and Lasting Peace

Written by

Comprehensive Agreement Human Rights (Mexico City, 19 March 1994)

X. International Verification by the United Nations

1. The Parties reaffirm the decision stated in the Framework Agreement of 10 January 1994 that all the agreements must be accompanied by appropriate national and international verification mechanisms, and that the latter must be the responsibility of the- United Nations.

2. In this context the Parties agree to request the Secretary-General of the United Nations to organize a mission for the verification of human rights and of compliance with the commitments of the agreement. The mission will be a component of the overall verification of the firm and lasting peace agreement which the parties undertook to sign within the shortest possible time during the current year.

3. The Parties recognize the importance of the role of the national institutions responsible for enforcing, monitoring and safeguarding human rights, such as the judiciary, the Public Prosecutors Office and the Counsel for Human Rights, and they emphasized the role of the latter, in particular.

4. The Parties agree to ask the Secretary-General of the United Nations that the mission for the verification of the agreement be established with the following in mind:

Functions

5. In verifying human rights, the mission shall carry out the following functions:

(a) Receive, consider and follow-up complaints regarding possible human rights violations;

(b) Establish that the competent national institutions are carrying out the necessary investigations autonomously, effectively and in accordance with the political constitution of the Republic of Guatemala and international norms regarding human rights;

(c) Determine whether or not a violation of human rights has occurred on the basis of whatever information it may obtain in the exercise of the powers referred to in paragraph 10, subparagraphs (a), (b), (c) and (d), taking into consideration any investigations that the competent constitutional institutions may carry out.

6. In verifying the other commitments set forth in the present agreement, the mission shall determine whether it is being fully implemented by the parties.

7. According to the findings of its verification activities, the mission shall make recommendations to the Parties, in particular regarding measures necessary to promote full observance of human rights and faithful implementation of the present agreement as a whole.

8. Bilateral talks shall be instituted between the mission and each one of the Parties so that the latter may make observations regarding the mission’s recommendations and so as to facilitate implementation of the above-mentioned measures.

9. The mission shall report regularly to the Secretary-General of the United Nations, who shall report to the competent bodies of that Organization. Copies of these reports shall be transmitted to the Parties.

10. The mission shall be empowered to:

(a) Establish itself and move freely throughout the national territory;

(b) Interview any person or group of persons freely and privately for the proper performance of its functions;

(c) Visit government offices and Unidad Revolucionaria Nacional Guatemalteca encampments freely and without prior notice when this is deemed necessary for the performance of its functions,-

(d) Collect whatever information may be relevant for the implementation of its mandate.

11. The mission may disseminate information relating to its functions and activities to the Guatemalan public through the mass media.

12. In verifying the observance of human rights, the mission shall pay particular attention to the rights to life, integrity and security of person, to individual liberty, to due process, to freedom of expression, to freedom of movement, to freedom of association and to political rights.

13. In the performance of its functions the mission shall take into account the situation of the most vulnerable groups of society and to the population directly affected by the armed confrontation (including displaced persons, refugees and returnees).

14. The mission’s activities shall relate to events and situations subsequent to the mission’s installation.

15. For purposes of implementation of the general commitment regarding human rights (chapter I of the present agreement), the Parties understand human rights as meaning those rights which are recognized in the Guatemalan legal order including international treaties, conventions and other instruments on the subject to which Guatemala is a party.

Cooperation and support for national institutions for the protection of human rights

16. The Parties agree in acknowledging that international verification must contribute to strengthening the permanent constitutional mechanisms and other national governmental and non-governmental entities for the protection of human rights. In order to support them, the verification mission shall be empowered to:

(a) Cooperate with national institutions and entities, as necessary, for the effective protection and promotion of human rights and, in particular sponsor technical cooperation programmes and carry out institution-building activities ,-

(b) Offer its support to the judiciary and its auxiliary organs, the Public Prosecutor’s Office, the Counsel for Human Rights and the Presidential Human Rights Committee in order to contribute to the development and strengthening of national institutions for the protection of human rights and due legal process;

(c) Promote the international technical and financial cooperation required to strengthen the capacity of the Counsel for Human Rights and that of other national institutions and entities to carry out their functions in respect of human rights;

(d) Contribute, in cooperation with the State and the various bodies of society, to encouraging a culture of respect for human rights.

Duration and structure of the mission

17. The mission shall initially be established for one year and its mandate may be renewed.

18. The verification mission shall be headed by a chief, appointed by the Secretary-General of the United Nations, assisted by such international and national officials and experts in various specialities as may be needed to achieve the aims of the mission. The Government of Guatemala and the mission shall sign the relevant headquarters agreement, in accordance with the Convention on the Privileges and Immunities of the United Nations of 1946.

Launching of the international verification mission

19. Taking’ into consideration its wish to promote human rights in Guatemala, and the fact that the provisions of the present agreement reflect constitutional rights that are already set forth in Guatemala’s legal order and considering the role of the international mission to strengthen national institutions and entities for the protection of human rights, in particular the Counsel for Human Rights, the Parties recognize that it is desirable, as an exceptional measure, that verification of the human rights agreement should commence prior to the signing of the firm and lasting peace agreement.

20. Since the verification mission is to begin its functions prior to the end of the armed confrontation, and thus while military operations continue, the mission shall make the necessary security arrangements.

21. The Parties agree immediately to ask the Secretary-General of the United Nations to send a preliminary mission as soon as possible to prepare, in coordination with the Parties, the establishment of the mission at the earliest possible date, and to evaluate the financial and technical needs essential for verification of the agreement on human rights.

Cooperation of the Parties with the verification mission

22. The Parties undertake to provide their broadest support to the mission and, to that end, they pledge to provide it with whatever cooperation it may need in order to carry out its functions; in particular to see to the safety of members of the mission and of persons submitting complaints or giving testimony to the mission.

23. The international verification carried out by the mission shall be carried out within the framework of the provisions of the present agreement. Any situation that may arise regarding the scope of the agreement shall be resolved by means of the talks provided for in paragraph 8 above.

Agreement on the Basis for the Legal Integration of the Unidad Revolucionaria Nacional Guatemalteca (Madrid, 12 December 1996)

III. Elements of the Integration Programme: A. Legal area

Demobilization

28. In order to foster compliance with the demobilization of URNG members stipulated in the Agreement on the Definitive Ceasefire, the National Reconciliation Act shall establish the complete extinction of criminal liability for persons who perpetrated, abetted or were accessories to the crimes defined in articles 398, 399, 402 and 407 of the Penal Code and articles 87, 88 and 91 to 97, paragraph (c), of the Arms and Munitions Act and who committed such acts up to the date on which their demobilization was completed in accordance with the terms, conditions and time-limits stipulated in the aforesaid Agreement. The date on which that demobilization was completed shall be communicated officially by the United Nations verification authority.

V. Final Provisions

Second. In accordance with the Framework Agreement, the Parties request the Secretary-General of the United Nations to verify compliance with this Agreement.

Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that Have Caused the Guatemalan Population to Suffer (Oslo, 23 June 1994)

Commitment of the Parties

The Parties undertake to collaborate with the Commission in all matters that may be necessary for the fulfillment of its mandate. In particular, they undertake to establish, prior to setting up the Commission and during its operations, the necessary conditions so that the Commission may fulfill the terms of reference established in the present agreement.

International verification In conformity with the Framework Agreement of 10 January 1994, implementation of this Agreement shall be subject to international verification by the United Nations.

Agreement on the Definitive Ceasefire (Oslo, 4 December 1996)

D: Verification

Term

31. International verification by the United Nations means on-site monitoring of the fulfillment by both parties of the commitments entered into in this Agreement.

Start of verification

32. Verification shall start on D-day when the ceasefire comes into effect, in accordance with the provisions of this Agreement, without thereby restricting fulfillment by the Guatemalan armed forces of their constitutional function in the rest of the national territory.

Coordination and follow-up

33. For the purposes of coordination and follow-up the Parties undertake to designate officials, at different levels, to liaise with the verification authority.

Natural Resource Management: Accord for a Firm and Lasting Peace

Written by

Agreement on Identity and Rights of Indigenous Peoples (Mexico City, 31 March 1995)

IV. Civil, Political, Social and Economic Rights

F. Rights relating to land of the indigenous peoples

Land tenure and use and administration of natural resources

6. The Government shall adopt or promote the following measures:

(a) Recognize and guarantee the right of access to lands and resources which are not occupied exclusively by communities but to which the latter have historically had access for their traditional activities and their subsistence (rights of way, such as passage, wood-cutting, access to springs, etc., and use of natural resources) and for their spiritual activities;

(b) Recognize and guarantee the right of communities to participate in the use, administration and conservation of the natural resources existing in their lands;

(c) Secure the approval of the indigenous communities prior to the implementation of any project for the exploitation of natural resources which might affect the subsistence and way of life of the communities. The communities affected shall receive fair compensation for any loss which they may suffer as a result of these activities; and

(d) Adopt, in cooperation with the communities, the measures necessary for the protection and preservation of the environment.

Agreement on Social and Economic Aspects and Agrarian Situation (Mexico City, 6 May 1996)

III. Agrarian Situation and Rural Development: B. Access to land and productive resources

34. Promote the access of tenant farmers to land ownership and the sustainable use of land resources. To that end, the Government will take the following actions:

Access to the use of natural resources

(f) By 1999, allocate to small and medium-sized farmers’ groups legally incorporated as natural resources management ventures, 100,000 hectares within multi-use areas for sustainable forest management, the management of protected areas, eco-tourism, conservation of water sources and other activities compatible with the sustainable potential use of the natural resources of such areas

(g) Promote and support the participation of the private sector and grassroots community organizations in projects for the management and conservation of renewable natural resources through incentives, targeted direct subsidies or funding mechanisms on soft terms, in view of the non-monetary benefits that the national community derives from such projects. Given the benefit that the international community receives from the sustainable management and conservation of the country’s forest and biogenetic resources, the Government will actively promote international cooperation in this venture;

Access to other productive projects

(h) Develop sustainable productive projects especially geared towards boosting productivity and the processing of agricultural, forestry and fishery products in the poorest areas of the country. In particular, for the period 1997-2000, guarantee the implementation, in the poorest areas, of a Government agricultural sector investment programme in the amount of 200 million quetzals in the agriculture, forestry and fisheries sectors;

(i) Promote a renewable natural resources management programme which fosters sustainable forestry and agro-forestry production, as well as handicrafts and small- and medium-scale industry projects that give added value to forest products;

(j) Promote productive ventures related, inter alia, to agro-processing industries, marketing, services, handicrafts and tourism with a view to creating jobs and securing fair incomes for all;

(k) Promote an eco-tourism programme with the broad participation of communities which have received appropriate training.

(i) Promote a renewable natural resources management programme which fosters sustainable forestry and agro-forestry production, as well as handicrafts and small- and medium-scale industry projects that give added value to forest products;

E. Legal framework and juridical security

37. Guatemala is in need of reform of the juridical framework of agriculture and institutional development in the rural sector so that an end can be put to the lack of protection and dispossession from which small farmers, and in particular indigenous peoples, have suffered, so as to permit full integration of the rural population into the national economy and regulate land use in an efficient and environmentally sustainable manner in accordance with development needs. To this end, and taking into account in all cases the provisions of the Agreement on Identity and Rights of Indigenous Peoples, the Government undertakes to:

Legal reform

(c) Promote the revision and adjustment of the legislation on undeveloped land so that it conforms to the provisions of the Constitution, and regulate, inter alia through incentives and penalties, the underutilization of land and its use in ways incompatible with sustainable natural resource utilization and preservation of the environment;

Prompt settlement of land conflicts

(f) To establish and apply flexible judicial or non-judicial procedures for the settlement of disputes relating to land and other natural resources (in particular, direct settlement and conciliation), taking into account the provisions of the Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict and the Agreement on Identity and Rights of Indigenous People. In addition, to establish procedures that will make it possible:

(i) To define formulas for compensation in the case of land disputes and claims in which farmers, small farmers and communities in a situation of extreme poverty have been or may be dispossessed for reasons not attributable to them;

(ii) To reinstate or compensate, as appropriate, the State, municipalities, communities or individuals when their land has been usurped or has been allocated in an irregular or unjustified manner involving abuse of authority;

I. Environmental protection

41. In this sense, and in line with the principles of the Central American Alliance for Sustainable Development, the Government reiterates the following commitments:

(d) To promote sustainable natural resource management programmes that will create jobs.