Constitutional Review Committee response to lesbian, gay, bisexual, transgender & intersex coalition submission

Constitutional Review Committee

07 September 2012
Chairperson: Mr B Mnguni (ANC, Free State)
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Meeting Summary

Members resolved not to discuss an unsolicited submission/petition from the South African Constitution Protection Coalition which was a response to the submission by the Mpumalanga House of Traditional Leaders to remove sexual orientation as a ground for discrimination in the Bill of Rights in the Constitution. Although the matter was relevant to the Committee, Members mostly agreed that attending to an unsolicited submission would disrupt the Committee's programme. Members objected to the notion that the Speaker could attempt to prescribe to the Committee on what it should be doing, and the suggestion that Co-Chairperson Holomisa should recuse himself from any such discussion as his “membership of the National House of Traditional Leaders could be perceived as a conflict of interest”. It was pointed out that he was not a member. The Committee issued a statement clarifying “it has at no stage agreed to a proposal to weaken or amend rights relating to sexual orientation contained in the Constitution”.

The Committee was investigating the mandate of the Constitutional Review Committee. A parliamentary law adviser briefed Members on the difference between the terms 'constitutional review' and 'constitutional reform'. She had undertaken some preliminary studies, comparing the work of the Committee to that of similar committees in the Irish and Finnish parliaments. Members discussed the role of the Committee and agreed it was to review and not to amend the Constitution. The parliamentary law adviser was advised to concentrate now on how the Committee should conduct its review process.

The draft Strategic Plan was tabled. However, Members agreed that the outcomes of the workshop to discuss the mandate of the Committee should first be discussed in detail before considering the Strategic Plan was interrogated. Members did agree that the Committee did not have an oversight role.

Meeting report

Letter from the Speaker
Co Chairperson Mnguni introduced a letter to the Committee Co-chairperson, Adv S Holomisa, by the Speaker of the National Assembly. There was an incorrect perception that Adv Holomisa was a member of the National House of Traditional Leaders.

Mr S Swart (ACDP) noted that the Speaker described the submission in question as being unsolicited. The Committee had never dealt with unsolicited submissions. It was difficult enough for the Committee to complete their work as it was. In the unlikely event of the Committee accepting the submission from the Mpumalanga House of Traditional Leaders [to remove sexual orientation as a ground for discrimination in the Bill of Rights of the Constitution], then all citizens would have the same opportunity to have a hearing.

Mr N Koornhof (COPE) agreed it would be highly undesirable if unsolicited petitions were entertained. He noted the Speaker’s comment that if the Committee were to deal with the submission then Adv Holomisa should recuse himself.

Mr A Ainslie (ANC) felt that the Committee could not dictate to the public on basic issues of changing the Constitution. The issue was in the public domain and he had no objection to discussing the submission from the lesbian, gay, bisexual, transgender and intersex coalition.

Mr Swart said that there was a formal process to invite submissions on certain topics. The Committee might be opening itself to a deluge of petitions, should this one be entertained.

Chairperson Mnguni said that one submission had been written in 2011. The petition had gone to the Speaker in May 2012. There were 7 000 signatures attached to the petition although he understood there were a total of 20 000 signatures that had not all been attached.

Ms B Mncube (ANC, Gauteng) said she did not have the copy of the petition with the signatures.

Dr M Oriani-Ambrosini (IFP) said that the notion of Adv Holomisa having to recuse himself was nonsense. Adv Holomisa was not a member of the House of Traditional Leaders. If every Committee Chairperson had to recuse himself because he had an opinion on an issue, the work of Parliament would come to a stop. The Committee should deal with matters on an equal footing. There were a number of matters: Sexual orientation was an issue of national interest, but the Committee would call for public hearings when it was necessary to discuss the matter. Land was also a matter that needed to be discussed.

Mr C de Beer (ANC, Northern Cape) said that legal advice should be obtained.

Mr Koornhof suggested that the Speaker be told that the Committee was aware of his letter, and would deal with the submission/petition at an appropriate time.

Mr D Bloem (COPE, Free State) said that a solution would not be found at the current meeting. The submission should be deferred.

Chair Mnguni said that the Committee would deal with matters to do with the freedom of association principle at a later stage. This would be communicated to the Speaker.

Dr Oriani-Ambrosini agreed with this approach. It was an extraordinary thing for the Speaker to suggest to a Committee what work it should be doing. The lobby group was vociferous. He proposed that a statement be made to the Speaker to the effect that Adv Holomisa was not a member of the National House of Traditional Leaders. It was out of order for the Speaker to tell a Chairperson to recuse himself. The Committee should oppose this suggestion. Adv Holomisa, who was currently absent, had never done anything on a partial basis.

Adv A Gaum (ANC) said the proposed approach was correct. The factual errors had to be corrected. The Committee had not agreed to remove sexual orientation as a ground for discrimination in terms of the Bill of Rights contained in the Constitution, as reported.

Chair Mnguni said that this matter had been covered. A press statement should be released.

Adv Gaum agreed. A clear statement should be made. There was an impression from the 17 May letter from the South African Constitution Protection Coalition addressed to the Speaker, that the Committee had accepted the proposal by the Mpumalanga House of Traditional Leaders to remove the protection against discrimination on the grounds of sexual orientation from the Bill of Rights.

Mr Ainslie asked how the views of the Committee would be expressed.

Chair Mnguni noted the agreement of Members on the contents of the statement to be released (see below).

Committee Report on Workshop on Constitutional Review Committee's Mandate
The Chairperson announced that a redrafted version had been circulated the previous day. However, many Members did not have the latest version before them so it was agreed to postpone this discussion.

“Constitutional Review” - Legal Analysis Progress Report
Dr Barbara Loots, Parliamentary Legal Adviser, said that the document picked up some issues from the workshop on the Constitutional Review Committee's Mandate. She explained the meaning of “Constitutional Review”. There was a judicial meaning. The courts would not amend the Constitution, but would test legislation against the Constitution. For the legislature, the Constitution should be regarded as a living document and should test its provisions for relevance against the needs of the people. One should also distinguish between the traditional concept of “constitutional review”, which was done on a continual basis, and “constitutional reform”, which is the process that had been undertaken from 1994.

Dr Loots said that section 45(1)(b) allowed for joint committees to be established. Prof Hugh Corder had felt that this section allowed for the Joint Committee to initiate amendments. According to Rule 112, a portfolio committee and a select committee could sit together. Joint Rules 111 and 114 made provision for a joint committee to be established, but such a committee could only report. Prof Corder felt that this could also be a reference to the Joint Committee.

Dr Loots said that in Ireland there was a bicameral system. The Constitution was the supreme law. They had an All-Party Oireachtas Committee on the Constitution. The committee sat when needed and at the direction of parliament. Amendments were characterised as technical/editorial, non-contentious and contentious. The committee would compile a report for action by parliament, with a referendum being called for a decision.

Dr Loots said that Finland had a unicameral system. There was a Constitutional Law Committee which operated on a hybrid basis. Their functions went beyond review and included amendment. Their principle function was to issue statements on the constitutionality of bills and other matters. There was no separate Constitutional Court.

Dr Loots cautioned Members that her exercise had only been desktop research. The Irish committee published a comprehensive report after each chapter. The reporting function highlighted the visibility of the committee. She would report back to the Committee in greater detail once she had had the opportunity to consult with her counterparts, as the other parliaments were currently in recess.

Mr Swart asked why these two countries had been chosen. The German model had been used in establishing the current South African system, and there were other examples of similar parliamentary systems in Africa.

Ms Mncube asked about the differing roles of joint committees under rules 45(1)(b) and 45(1)(c).

Mr Oriani-Ambrosini said that the mandate for this Committee came from the Constitution. He had submitted a legal opinion to the Committee some three years previously, based on history, language and purpose. He would like to see texts on what the Committee was being compared to. After attending a conference in Venice, he believed that there were no other bodies similar to this Committee. This was where the processing of amendments would take place. The Constitution should be renewed annually. One aspect would not be changed in isolation. Section 74(3) said that there were some constitutional amendments where the National Council of Provinces (NCOP) was not competent to make an input. From a legal viewpoint this was a problem. Whatever conclusions were reached in the Committee would have to be referred to Parliament and parties.

Adv T Masutha (ANC) had been taught at university that making laws was a parliamentary process and enforcing them was an executive function. The Constitution was difficult to amend because in the order of things it was the most significant political projection of any nation. It laid down the principles on the way society was organised. Members often got caught up in the detail of a Bill before Parliament without first considering the political needs. Review was a much deeper concept than amendment. Most reviews since 1994 had arisen from some legislative requirements. In order to amend the Constitution, the Committee would have to be reorganised. The roles of committees in both houses would need to be re-evaluated. The notion that the role of this Committee was to review and not amend would have to be reconsidered. The Committee should be satisfied that it could carry through the work allocated to it.

Dr Loots replied that the presentation was not a final recommendation, but only observations. The Committee would have to make a policy decision at some stage. She saw 'review' as engaging with the text of the Constitution. The scope had been determined. There was an anomaly in section 74(3). She shared the concerns of Members. She was waiting for the texts from Ireland and Finland. She had searched for examples of constitutional committees that did have the power of amendment. She had initially only looked for mandate comparisons. She would focus on the questions posed as she continued her research.

The Chairperson noted that this was a Review Committee.

Dr Oriani-Ambrosini had studied all the constitutions of the world. In each case there was a committee that amended the constitution. It was difficult to compare bodies without also analysing the relevant constitution and parliamentary rules. Different submissions had been made at the World Trade Centre process in the 1990s. He remembered that process as being a holistic one. It was a matter of law.

Adv Masutha suggested a two-stage process. There should first be a common understanding of the language of the Constitution. Dr Oriani-Ambrosini was taking a narrow view of how this Committee had understood its mandate. He could not remember any case of this Committee piloting an amendment. It was clear that the Constitution spoke to amendment in one place and review in another. This suggested to him that there was a design to separate the two functions. He urged that the overwhelming evidence that the word 'review' did not include the concept of amendment, should be accepted.

The Chairperson felt there was consensus that the purpose of the Committee was to review and not amend.

Mr Bloem agreed that there had never been an attempt to amend the Constitution. He agreed with Adv Masutha's interpretation.

The Chairperson requested Dr Loots to conduct further research.

Ms Mncube proposed that one method be used when the Committee reviewed the Constitution. She could not remember any cases of reviews, instead the Committee had simply referred issues to the relevant Department.

Adv Masutha said that an important issue was raised. He dreaded a situation where issues were rehashed. If the three enquiries raised by Dr Oriani-Ambrosini could not be answered then one could resort to the fourth question of comparison. He was concerned that different jurisdictions used language their own way. He had just returned from a conference where the concepts of ‘public servant’ and ‘member of parliament’ had been debated. Different languages assigned different meanings and contexts. The answers were in the Constitution itself.

The Chairperson said that Dr Loots was an expert in constitutional law. It seemed that Members knew what their mandate was. He asked if Dr Loots should concentrate on how the Committee should conduct its review process rather than on the mandate. Members agreed on this proposal.

Draft Committee Strategic Plan
The Chairperson said that it was beyond the mandate of the Committee to conduct oversight. This function should be removed from the mandate. The plan should have gone to the NCOP two weeks previously.

Mr Ainslie suggested that the strategic plan could only be interrogated once the outcomes of the workshop had been discussed in detail. Dr Oriani-Ambrosini agreed.

The Chairperson accepted this proposal. He announced that the delegation from Tanzania had changed the date of their visit. He suggested that the Committee should meet on alternate Fridays.

The Committee adopted the minutes of the meeting of 6 March 2012.

The meeting was adjourned.

Appendix 1
Statement by Joint Constitutional Review Committee, places on record that it has not agreed to a proposal to weaken or amend rights relating to sexual orientation
Published 07 Sep 2012
The Speaker of the National Assembly has referred a letter – from the South African Constitution Protection Coalition that was brought to his attention – to the Joint Constitutional Review Committee (JCRC).

The authors of this letter claim, among other things, that the JCRC has accepted a proposal to remove sexual orientation as a ground for discrimination in terms of the Bill of Rights contained in the Constitution.

The JCRC places on record that it has at no stage agreed to a proposal to weaken or amend rights relating to sexual orientation contained in the Constitution. Statements made outside the Committee cannot and should not be attributed to the JCRC.
The Committee regards all the discriminatory grounds listed in our Bill of Rights to be of critical importance for the country’s democracy, which is based on a human rights culture. The Committee will not entertain efforts to remove or weaken any of these critical human rights and ask of all South Africans to work together in building a non-racial, non-sexist society where discrimination on the prohibited grounds, including sexual orientation, has no place.

Appendix 2
City Press article: Stop protecting gays, traditional leaders tell ANC
By: Mandy Rossouw 2012-05-06

The ANC knows that the “great majority” of South Africans do not want to promote or protect the rights of gays and lesbians.

That’s according to the National House of Traditional Leaders, which has appealed to Parliament to debate removing a clause in the Constitution that protects people on the grounds of sexual orientation.

The ANC’s caucus will now debate whether or not the matter should be discussed in Parliament.

The National House of Traditional Leaders responded to an annual invitation by Parliament’s constitutional review committee to submit suggestions on which parts of the Constitution should be amended.

The traditional leaders argued that sexual orientation should be removed as a listed category from section 9 of the Constitution, which currently reads: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

ANC MP and chairperson of the constitutional review committee Patekile Holomisa said sexual orientation had always been a touchy subject for the ruling party’s caucus.

“The last time this issue was discussed was about same-sex marriages. Most of the people in the caucus were opposed to it, but then Luthuli House and the leadership instructed us to vote for it.”

Holomisa, who is also the head of the Congress of Traditional Leaders, said the ANC was aware that the “great majority does not want to give promotion and protection to these things”, but that the party’s own policy dictated full rights for everyone.

Holomisa insisted that gay people should not be “molested and raped”, and said homosexuality was a “condition that occurred when certain cultural rituals have not been performed”.

“Once you take them (gay people) to a spiritual healer they tell you it’s because some ritual hasn’t been performed.

“But when the rituals are done the person starts to behave like other people in society. I don’t know how it works for people in other cultures and those who live in urban areas.”

He warned that the ANC might eventually lose votes if it did not serve majority interests.

“Now and again people are given a right to vote. They may decide to vote for a party that does what they want. We are currently voting for the ANC because of its transformation agenda, but they may one day look at other issues,” he said.

Holomisa also revealed that MPs had reservations about the Protection of State Information Bill, but when Luthuli House spoke they voted in favour of it.

“Luthuli House gave instructions, even people who had misgivings about the bill were required to vote in a particular way,” he said.

This flies in the face of attempts by the ANC to insist the caucus is fully united behind the bill.


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