___________
THE CONSTITUTION
SEVENTEENTH AMENDMENT BILL
________
(As introduced in the National Assembly as a section 74 Bill)
(The English text is the official
text of the Bill)
(CHERYLLYN
[B…… __ 2006]
GENERAL
EXPLANATORY NOTE:
[ ] Words in bold
type in square brackets indicate
omissions from existing enactments.
_______________ Words
underlined with a solid line indicate
insertions in existing enactments.
BILL
To amend the Constitution of the
BE IT
ENACTED by the Parliament of the
Amendment of section 11 of Act 108
of 1996
1.
Section
11 of the Constitution of the
“including the unborn child”.
Amendment of section 28 of Act 8 of
1996
2.
Section
28 of the Constitution of the
“Where appropriate “child” shall also mean “unborn
child or human foetus.”
MEMORANDUM ON THE OBJECTS OF THE
CONSTITUTION OF THE
1. BACKGROUND
1.1 The High Court, in the first Christian
Lawyers Association case, (1998) (4) SA 113 (T), declared that if the intention of the Legislature
was to protect the right to life of the unborn child they would have done so
explicitly in section 11 and section 28 of The Constitution of the Republic of
South Africa.
1.2 This ruling made it very clear that
a constitutional amendment would be the only means by which an unborn child
would be entitled to any protection.
1.3 Section 12 of the Constitution,
which gives everyone the right to make decisions regarding reproduction and to
security in and control over their own body, has further entrenched the view
that the unborn child has no inherent right to life.
1.4 Without any constitutional protection of the
right to life of the unborn child, section 12 has been applied in a manner
which has resulted in gross indifference to the value of an unborn child.
1.5 Section 36 of the constitution, makes
provision for the rights in the bill of rights to be limited by legislation to
the extent that it is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all
relevant factors. Without the relevant
protection of the right to life of the unborn child in the constitution,
however, section 36 has been rendered ineffective in limiting rights which have
resulted in unreasonable, unjustifiable and inequitable practices such as:
·
Legalized
forcible removal of an unborn child from its mothers womb up to 12 weeks
gestation without any reason or cause;
·
Termination
of pregnancy up to 20 weeks gestation without any reason or cause under the
guise of “social and economic circumstances.”
1.6 Accordingly, the Constitutional
amendment as proposed is the only means of affording the unborn child any
reasonable right to life.
1.7 Where the mother’s life or health has to
be weighed against the life of her unborn
child, section
36 of the constitution will permit a doctor to terminate the life of the
unborn child
without fear of legal consequences.
2. OBJECTS
OF THE BILL
The objects
of the Bill are to amend section 11 and section 28 of the Constitution of the
3.
CONSULTAION
Doctors for
Life
4.
FINANCIAL IMPLICATIONS FOR THE STATE AND PROVINCES
There are
no financial implications for either the State or the Provinces.
5.
PARLIAMENTARY PROCEDURE
The opinion
is held that the Bill must be dealt with in accordance with the procedure
established by section 74(2) of the Constitution since it contains an amendment
which seeks to amend chapter 2 of the Constitution.