The proposed 20th Amendment to the Constitution makes several significant changes to the present Constitution, altering the dynamics of the separation of powers between the various organs of government, with the balance of power tipping in favour of the executive President. The amendment also makes major changes to the law-making process, which could result in a lack of transparency and accountability, by reducing the opportunity for citizens to challenge laws by way of pre-enactment review. The structure of the Constitutional Council which were set up by the 19th Amendment and its powers have been changed, which could have a serious impact on the independence of the Independent Commissions.
Impact on the Law making Process
The proposed amendment reduces the period of time a Bill has to be made accessible to the public (by being published in the gazette), before it can be placed on the order paper of Parliament (from 14 to 7 days).
The proposed amendment attempts to provide limitations against overly broad committee stage amendments (CPA has continuously criticized such committee stage amendments) to Bills.[Clause 15.1]
However there is no mechanism to enforce this safeguard with no scope for judicial review in any form of such committee stage amendments in Parliament.[Clause 15.2]
The Amendment allows the President to refer to the Supreme Court directly any Bill certified by the Cabinet of Ministers as “urgent in the national interest”. The Supreme Court is then tasked to decide on the Constitutionality of the Bill within 24 hours or 72 hours depending on the instructions of the President There is no requirement to gazette “urgent bills”. This results in a situation where citizens might not even know the contents of such Bills before it is passed by Parliament. [Clause 22]
Citizens have NO “right to be heard” in such proceedings, the Supreme Court can decide whether to allow a person to be heard “as may appear to the Court to be necessary” [Article 134 of the Constitution]. However, Constitutional amendments or a new constitution CANNOT be passed as an urgent Bill. BUT due to the limitations on time, Bills which are unconstitutional could be passed into law. [Article 80(3)].
Allows the President to circumvent Parliament to pass laws. However, the ultimate decision is with the People. [Clause 16]
Impact on powers of Election Commission
The below requirements concerning appointments to the Election Commission no longer exist:
➢ Recommendation of the Constitutional Council to make appointments to the Elections Commission.
➢ Recommendation of Constitutional for President to appoint Chairman of the Elections Commission.
➢ For one of the members to be a retired officer of the Department of Elections, who has held office as a Deputy Commissioner of Elections or above.
Temporary appointments made by the President to the Elections Commission no longer required to be made on the recommendation of the Constitutional Council. The changes effected to the composition and appointments to the Commission indicates a reversion to the 18th Amendment. [Clause 19]
The insertion of this new clause limits the guidelines issued by the Election Commission to the subject matters which are directly connected with the holding of the respective election or the conduct of the respective Referendum. The Election Commission will not be authorized to issue guidelines pertaining to any matter relating to the public service or any matter within the ambit of administration of the Public Service Commission or the Judicial Service Commission.[Clause 20]
The approval of the Constitutional Council will no longer be required for the appointment of the Commissioner General of Elections. This is a reversion to the position in the 18th Amendment.
The repeal of Article 104GG would mean a failure to cooperate with the Commission to secure the enforcement of any law relating to the holding of of any election or Referendum, which the Commission considers necessary to ensure a free and fair election. Previously the application of this provision on compliance was limited to media institutions owned or controlled by the State. This is a reversion to the position in the 18th Amendment. [Clause 20 (3)]
Impact on the Powers of the National Police Commission
The President has unrestricted power over the appointment and removal of members of the Commission. This would undermine the independence of the National Police Commission and in turn the police service. This Clause reverts the constitutional position on the appointments and removal of members of the Commission to the position adopted in the 18th amendment. The Inspector-General of Police shall no longer be entitled to be present at meetings of the Commission. ]Clauses 42,43,44]
This removes from the National Police Commission the power of appointment, promotion, transfer, disciplinary control and dismissal of police officers, and the right of appeal to the Commission of a police officer aggrieved by any order relating to promotion, transfer or any order on a disciplinary matter or dismissal by a Committee or Officer to whom such powers are delegated by the Commission.
[Clause 47-51]
Impact on the Powers of the Judicial Service Commission
Under the proposed 20th Amendment, the President may appoint any two judges of the Supreme Court as members of the Judicial Service Commission, without reference to their seniority and judicial experience serving as a Judge of a Court of First Instance. The President may appoint and remove such members without the requirement of approval by the Parliamentary Council. This gives unfettered power to the President over the Judicial Service Commission which would undermine the independence of the Commission and in turn the independence of the Judiciary.
Additionally, the deletion of criteria for appointment as members of the Commission reduces the transparency in the appointment process and raises concerns on the suitability of the persons appointed to this office. This Clause reverts the constitutional position on the appointments and removal of members of the Commission to the position adopted in the 18th Amendment. [Clause 25]
Impact on the Commission to Investigate Allegations of Bribery and Corruption
Removes constitutional recognition for the Commission to Investigate Allegations of Bribery and Corruption. Removes Constitutional recognition for the Commission to Investigate Allegations of Bribery and Corruption Act, No 19 of 1994 until Parliament passes a new law. A future government can with a simple majority of Parliament abolish the Commission to Investigate Allegations of Bribery and Corruption.
There was no constitutional recognition of the Commission to Investigate Allegations of Bribery and Corruption under the 18th Amendment to the Constitution. [Clase 54]
Impact on the National Audit Service Commission
As at present, the Auditor-General should be a qualified Auditor appointed by the President subject to the approval of the Constitutional Council. The 20th Amendment would change this to enable any person to be appointed by the President as the Auditor-General. This raises concerns about the transparency of the appointment as well as the suitability of the person to hold office as the Auditor-General.
This Clause would amend the requirements for appointment of the Auditor-General reverting it to the position under the 18th Amendment.
The 20th Amendment repeals the Articles on the Audit Service Commission, removing the constitutional protection given to the Commission. This is similar to the position under the 18th The Office of the Secretary to the President, the Office of the Secretary to the Prime Minister will no longer constitutionally be required to be audited by the Auditor General. This is similar to the position under the 18th Amendment. This will reduce the transparency and accountability of these offices to the public. [Clause 31]
Impact on powers of the Public Service Commission
The members of the Public Service Commission will be appointed by the President and may be removed by the President without the need for approval by the Parliamentary Council. This would give the President unchecked power over the Commission which would adversely affect the independence of the Commission. This would have the effect of undermining the independence of the public service. This Clause reverts the constitutional position on the appointments and removal of members of the Commission to the position adopted in the 18th Amendment. [clause 08]
Impact on powers of National Procurement Commission
The National Procurement Commission is abolished. The function of the Commission is to “formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines” for procurements by government institutions. To monitor, report and investigate procurement procedures. [Clause55]
Other Changes
Any person who is above the age of thirty is eligible to contest the Presidential Election.
Persons who are dual citizens are no longer disqualified from contesting Presidential elections.
[Clause 18]
Adopted from the CPA document on 20th amendment