NEW BILLS ARE A SERIOUS THREAT TO THE CONSTITUTION AND SHOULD BE WITHDRAWN

On 1 June 2009 the Department of Justice and Constitutional Development (DoJCD) published the draft Constitution Eighteenth Amendment Bill (CAB) and the draft State Liability Bill for public comment (see here - PDF). We regret that both threaten the foundations of Constitutional supremacy and the Bill of Rights. If passed in their current form the Bills will not only amend the Constitution but also shield legislation from judicial review.

Both Bills have been drafted ostensibly to give effect to the 2008 Constitutional Court judgment in Nyathi v Minister of Justice and Constitutional Development. Mr Nyathi was a person who suffered a stroke as a result of the negligent treatment he received at two public hospitals [Pretoria Academic Hospital and Kalafong Hospital] in 2002. The state admitted that he was treated negligently but the state failed to pay the damages that were due to him as a result. Mr Nyathi, by then disabled by the stroke, needed the money in order to pay for the medical care he needed. But he had to pursue legal action for a further five years until his death in 2007, at which time the state had still not settled the full debt due to him. Sadly, Mr Nyathi's story is one amongst hundreds of similar experiences.

In its decision in Nyathi, the Constitutional Court ruled that section 3 of the State Liability Act, which prohibits people from executing debts a or aagainst the government by attaching property, was unconstitutional and invalid. Out of respect for Parliament and the principle of separation of powers, the Court suspended the invalidity of the section for 12 months. This was considered sufficient time to allow lawmakers to amend the statute to permit appropriate enforcement of monetary court orders against the state. The expectation was that the government, cognizant of the unconstitutional situation that persisted, would comply with its duty within one year. But the government failed to do this.

Instead, at the eleventh hour, the government sought an extension from the Court. It was granted until 31 August 2009. On the same day that it was granted the extension the DoJCD published the two Bills.

We are extremely concerned that the proposed State Liability Bill fails to give effect to the Nyathi judgment. While it provides for more accountability of government officials, it still does not permit execution of judgment debts against the government. Instead there is an undisguised attempt by the CAB fundamentally to alter the Constitution - in order to circumvent the Court order. Thus, the CAB proposes to insert a new section 173A into the Constitution, which would read:

‘Despite any other provision in the Constitution, an Act of Parliament must prescribe... [procedures for litigating against the state and enforcing court orders]'.

The effect of this sentence is to insulate an Act of Parliament (the proposed State Liability Bill) from any constitutional review by a court. It means the Bill of Rights would not apply to the State Liability Act once passed. It also means that section 1 of the Constitution, which proclaims the founding values of governance of our country, would be undermined. As a result the CAB requires a 75% majority of members in the National Assembly in order to be passed.

The CAB if passed would alter the basic structure of the Constitution by placing an Act of Parliament beyond constitutional scrutiny. It would end the operation of the founding values of our constitutional democracy. Not only is it the first time that the government has sought to amend the Bill of Rights, it is also the first Constitution Amendment Bill that goes as far as attacking the foundational values.

For this the public gets a mere one month to comment!

It is hard to imagine a harsher assault on key principles of our constitutional democracy. The effect of the ‘amendment' is that the Constitution is no longer supreme. Instead the CAB proposes a return to parliamentary sovereignty, which the first democratic parliament firmly abandoned when it drafted the Constitution.

The ALP and TAC call on civil society to support its demand that the DoJCD immediately withdraw the Bills, desist from amending the Constitution, and draft a Bill that gives proper effect to the Nyathi judgment.

Others in a similar situation to Mr Nyathi deserve an end to the continued operation of an unconstitutional law. They also deserve and need the protection of fundamental principles of our democracy.

Statement issued by the Treatment Action Campaign and AIDS Law Project, June 7 2009

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