Centre for Policy Alternatives on 16 February, 2018

The Centre for Policy Alternatives vs. Attorney-General SC SD 24/2017 [In re: The Twentieth Amendment to the Constitution]

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A Bill titled ‘The Twentieth Amendment to the Constitution’ (the Bill) was placed on the Order Paper of Parliament on 23rd August 2017. The Centre for Policy Alternatives (CPA) and its Executive Director filed a Petition on 28th August 2017 in the Supreme Court, stating that the Bill can only be passed in Parliament with a special majority (two thirds of the Members of Parliament) and with the approval of the people at a referendum.

CPA first argued that the Bill fails to comply with a mandatory procedural requirement for constitutional amendments. Article 154G(2) of the Constitution requires any amendments to the devolution framework established by the Thirteenth Amendment to be referred by the President to every Provincial Council for the expression of their views before being placed on the Order Paper of Parliament. This procedure was not followed in this case. The importance of this requirement is that it enables Provincial Councils to express their views on a Constitutional Amendment Bill, and to give the government an opportunity to accommodate those views before a final Bill is presented to Parliament.

Second, CPA argued that the Bill violates the Constitution’s Article 3, which affirms the sovereignty of the people and recognizes that the franchise is a part of that sovereignty. After the Thirteenth Amendment introduced devolution, this includes the right of citizens in the nine Provinces to elect a Provincial Council of their choice. The Bill negatively affects the people’s franchise because it transfers to Parliament the power of a Provincial Council to decide when that Council should be dissolved. As a result, it delays the opportunity of citizens in Provinces whose Provincial Council terms end before the “specified date” in the Bill, to vote for a new Provincial Council until then. Equally, the mandate citizens have given to Provincial Councils whose terms end after the “specified date” in the Bill is cut short by the Bill.

The Supreme Court in its determination did not hold with CPA’s argument relating to Article 154(G)(2), however, it did accept the position that it is mandatory for the President to refer such bills to Provincial Councils prior to being placed on the order paper of Parliament. Furthermore the Court determined that the postponement of elections envisaged in the Bill violated Articles 3 and 4 of the Constitution (sovereignty of the People) and as such it was required to be passed by a referendum.