The private member Bill to amend the Public Order and Security Act has been stuck in the Senate for quite some time now after it was passed by the House of Assembly in December 2010. Opinion By John Makamure
The Senate has not approved a motion by Innocent Gonese, the mover of the Bill, to restore his motion on the Order Paper after it lapsed with the prorogation of Parliament. In my view, this is tantamount to disagreement between the two houses. The question now is: What is the way forward if there is such a disagreement? Section 51 of the Constitution requires that a Bill be passed by both houses and be assented to by the President for it to become law. However, this is subject to Schedule 4. Schedule 4 specifies the procedures which may be followed in the event of a disagreement between the House of Assembly and the Senate. The procedures specified therein show that the Constitution is alive to a scenario where the Senate delays its deliberations on a Bill. The relevant provisions of Schedule 4 are in its paragraph 3.
The law may be stated as follows: First, the Bill must be restored to the Order Paper in terms of Order 121 of the Standing Orders of the Senate. This requires a resolution of the Senate to that effect. If the Senate resolves against restoration of the Bill, the Bill lapses permanently by reason of the prorogation.
A Bill which has lapsed by reason of prorogation and has not been restored to the Order Paper may be reintroduced, but will be regarded as a “new Bill” which has to follow all the stages.
If the Bill is restored to the Order Paper in the Senate, the Bill shall proceed at the commencement of the stage it had reached before the prorogation. This means that if, for example, the Bill had reached the second reading with the second reading speech having been made, but before the debate had been completed, on restoration, the second reading speech will be made again.
Once the Bill has been restored to the Order Paper in the Senate, the next relevant question is to determine the number of days it has been in the Senate. For the Senate to be “by-passed”, the Bill must have been in the Senate for ninety or more days. The days are counted from “the day of the introduction of the Bill into the Senate”.
In counting the number of days in the Senate, the issue of prorogation is relevant even though Order 121(2) says: “Any Bill so restored to the Order Paper shall be proceeded with as if its passage has not been interrupted by a prorogation.”
The Constitution discounts the days of the prorogation. Schedule 4, paragraph 3(6) says: “In the calculation of any period of 90 days . . . no account shall be taken of any period during which Parliament is prorogued.” How many days are “90 days”? It is clear at law that the reference to 90 days in Schedule 4 does not refer to 90 ordinary days. The Constitution does not define “day”, but defines a “sitting day” in section 113. A “sitting day” is defined as: “Any weekday which is prescribed in the Standing Orders of Parliament to be a sitting day, whether or not the House of Assembly or the Senate, as the case may be, meets on the that day.”
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The Standing Orders (both House of Assembly and Senate) define “sitting day” as: “A Tuesday, Wednesday, Thursday or Friday which is not a public holiday.”
It is submitted that the reference to 90 days in Schedule 4 refers to 90 sitting days.
It must be borne in mind that a sitting day does not cease to be a sitting day merely because there was no actual sitting. Any sitting day in a session is a sitting day whether or not there was an actual sitting. If 90 sitting days elapse, a motion must be introduced in the House of Assembly for a resolution that the Bill be presented to the President in the form in which it was passed by the House of Assembly.
No special majority of the House of Assembly is prescribed for this resolution. This means that as long as there is a quorum, a majority of the members “present and voting” suffices.
Further, it is clear that the resolution can only be triggered by a motion and the motion is subject to the Standing Orders. For example, the motion requires notice and is subject to debate in the usual way. If the House of Assembly passes the resolution for presentation of the Bill to the President, the Bill must be accompanied by a certificate from the Speaker stating the fact of the “by-passing” of the Senate.
- John Makamure is the executive director of Sapst writing in his personal capacity.
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