Many people must be wondering what has happened to the Public Order and Security Amendment (Posa) Bill that made history as the first private member Bill to be successfully introduced and passed by the House of Assembly.
The short answer is the Bill is stuck in the Senate after Zanu PF senators refused to pass it, arguing this was a matter negotiators to the Global Political Agreement (GPA) were seized with.
The Posa Amendment Bill seeks to make it easier for citizens to enjoy their civil liberties relating to the right to assemble, gather and demonstrate; curtail powers reposed in the police with respect to public gatherings; to clarify persons intending to demonstrate are required to notify the police and not to seek permission; and to ensure the police will be held to account in all cases where they use force to break public gatherings.
The current Act, among other things, prohibits public gatherings/meetings that are not sanctioned by the police and prohibits demonstrations within the precincts of Parliament, close to the courts or close to protected places without the necessary permission.
The refusal by the Senate to pass the Bill is a reflection of the serious partisan politics setting in the House. This has dealt a severe blow to Parliaments effectiveness in the law-making process.
The introduction of private member Bills allows back benchers to initiate legislation and not simply wait for legislation to emanate from Cabinet.
This development had been hailed as a significant step in strengthening Parliaments constitutional mandate to make laws for the peace, order and good government of Zimbabwe.
Private member Bills are especially important now when the paralysed inclusive government has failed to come up with a legislative agenda that advances the spirit of the GPA of creating a democratic governance system that advances human freedom, peace and stability.
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So what it is the way forward on the Posa Amendment Bill now that the Senate has rejected it? The only solution is to resort to constitutional provisions that relate to disagreements between the House of Assembly and Senate.
Schedule 4 of the Constitution (as amended by Constitution Amendment No 19) says if a Bill that originated in the House of Assembly has been rejected or has not been passed by the Senate before the expiration of a period of 90 days beginning on the day of the introduction of the Bill into the Senate, the Bill may be presented to the President for signing into law in the form in which it was passed by the House of Assembly.
In simple language, the House of Assembly can override the decision of the Senate and transmit the Bill directly to the President for assent as long as the Bill is not a constitutional Bill, a money Bill or a Bill where a certificate of urgency is issued.
The motion to bring the Posa Amendment Bill was introduced into the House of Assembly by Honourable Innocent Gonese onNovember 5 2009. The first reading of the Bill in the House of Assembly took place on February 2 2010 and passed by the House on December 8 2010.
This is the same day that it was transmitted to the Senate. This means more than 12 months have since passed since the Bill was transmitted to the Senate. This is way above the 90-day constitutional requirement.
The Constitution further requires the House of Assembly can override the Senate and submit the Bill directly to the President for assent upon a resolution by the Assembly. This means the House of Assembly will have to sit again and pass that resolution, paving way for the Speaker to issue a certificate to that effect.
What is also important to highlight is that the Posa Amendment Bill is a compromise piece of legislation, which has even been criticised by some civic society players as not going far enough.
I say it is a compromise Bill because the one passed by the House of Assembly was not the one originally moved by Gonese. He made some concessions after discussions with some of his colleagues from the other side.
I was therefore expecting Parliament not to encounter any difficulties in passing a piece of legislation that is largely a compromise one. Another point to highlight is the Bill was subjected to country-wide public hearings by the Portfolio Committee on Defence and Home Affairs. The committee came up with a report in support of the amendments. There were no dissenting voices.
The issue of negotiators being seized with the matter should be dismissed outright because Parliament is an independent arm of government that should consider all matters brought before it.
Negotiators should independently carry out their duties and not interfere with the operations of the legislative branch. Negotiators have no right to decide our destiny on all matters when there are other arms with a constitutional mandate to play that role.
Parliament in 2012 should carry out a critical analysis of its performance in the previous year and avoid unnecessary polarisation that will only serve to reduce it to a weak institution subservient to Executive interests.
We want to see a legislative agenda that will help create a conducive environment for free, fair and uncontested election outcome. Parliaments duty is to enact these laws.
Taxpayers will not support improved conditions of service for legislators unless they are convinced that these legislators are effectively executing their constitutional duties.
John Makamure is the executive director of the Southern African Parliamentary Support Trust writing in his personal capacity.
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