EDITORIAL: Paper jam on Zuma’s desk
Controversial bills awaiting the president’s signature — most recently the FIC Amendment Bill and 'secrecy bill' — raise questions on time limits
President Jacob Zuma’s recent referral of the Financial Intelligence Centre (FIC) Amendment Bill to Parliament brings into sharp focus what happens to legislation after it has been approved by the national legislature. The bill gathered dust on the president’s desk for five months before he sent it back. Several other pieces of legislation have stalled on Zuma’s desk.
The Constitution is silent on how long the president may take to sign an approved bill into law. But, given that the separation of powers is a founding principle in SA’s law, it must be assumed that he cannot thwart the views of the national legislature indefinitely.
Zuma also cannot simply ignore court judgments.
The Constitution says the president must either assent to and sign bills that are sent to him or, if he has reservations about a bill’s constitutionality, he must refer it back to Parliament. If Parliament makes changes to the bill sent back to it, the president must sign it, but if he is still dissatisfied he must refer it to the Constitutional Court. If the court finds the legislation to be in compliance with the Constitution, then the president must sign it into law.
There have been two controversial bills awaiting the president’s signature for more than two years.
The Protection of State Information Bill, popularly known as the "secrecy bill" — which will govern how, when and why state documents may be classified — was approved by Parliament in 2013 and sent to the president for signature.
Zuma found technical problems with the bill and returned it to Parliament. MPs duly made the changes to the bill and again sent it to the president for assent. Two years later, no decision has been made on the secrecy bill. The last mention of the bill, which also provides for long prison sentences for people caught contravening the law by making public information deemed to be secret, was in October 2015, when Zuma told a Media Freedom Day rally that it was receiving legal consideration.
Also problematic is the Private Security Industry Regulation Amendment Bill.
This piece of legislation seeks to make it illegal for foreigners to own private security companies in SA because that would be a threat to national security. Should it become law, foreign companies such as Chubb and ADT would be forced to sell the majority of their shares to South Africans.
This was widely seen as an effective expropriation of foreign property and condemned for offending a whole host of investment protection agreements that SA has concluded with other countries.
The private security bill has been widely criticised and several appeals, including many from foreign countries, have been made to Zuma not to sign it. It was approved by Parliament in 2014 and has been on Zuma’s desk for more than two years.
So how long should the president be given to deal with bills sent to him for assent? The Constitution usually applies the standard of reasonableness — in other words, bills should be dealt with in a reasonable amount of time. Clearly two years is unreasonable.
Arguably, Zuma should have signed the FIC amendment bill, sent the Private Security Industry Regulation Amendment Bill back to Parliament and referred the Protection of State Information Bill to the Constitutional Court so that a decision can be made on it once and for all.
Some thought should be given to limiting the amount of time the president has to deal with bills, either through changes to the Constitution or through the rules of Parliament. The present situation de facto gives the president a veto over Parliament and that is unacceptable.