DRAFT ANNUAL REPORT: CONSTITUTIONAL REVIEW COMMITTEE

Chairperson: Adv SP Holomisa
Period from 7 May 2002 to 09th June 2003

1.PURPOSE AND OBJECTIVES
Mission:
To ensure that the Committee invites the public to submit to it, within 30 days written representations on any constitutional matter. This should be done before the first day of May.
To ensure that all representations submitted to the committee are given necessary consideration so as to provide the National Assembly and national Council of provinces with an informed recommendation, and intends to do this in the most efficient and effective manner and within the timeframe.

Vision:
To have a fully reviewed Constitution on an annual basis.

2. SUPPORT:

2.1 Control Committee Secretary: Ms H Salie
Period from January 2001 to 09 June 2003

2.2 Committee Secretary: Patience Sotenjwa
Period from July 2002 to February 2003

2.3 Committee Secretary: Ernest Kgopa
Period from February 2003 to 09 June 2003

2.4 Committee Assistant : Ms B Madikane
Period from July 2002 to February 2003

Committee Assistant: Mr. K Lobi
Period from February 2003 to 09 June 2003

2.6 Secretary to Chairperson: Ms A Nortjie
Period from May 2002 to 09 June 2003 (On leave)

2.7 Secretary to Chairperson: Mr. S Ntushelo
Period from April 2003 to 09 June 2003 (Acting)

Composition
Section 45. (1) (C) of the Constitution provides for the establishment of the Joint Constitutional Review Committee.

Pursuant to this Constitutional mandate, Joint Rule 97 of the Joint Rules of Parliament establishes the Joint Constitutional Review Committee, which must review the Constitution at least once a year. In terms of Joint Rule 102 the Committee must report on its review to the two Houses. To enable the Committee to execute this task, Joint Rule 102 empowers the Committee to:
Identify those Constitutional matters that it intends to review, taking into
account any representations received in response to its invitation.
Invite the public to submit to it written representations on any Constitutional matter.
Consider all representations concerning matters identified by the Committee.


NATIONAL ASSEMBLY

Member

Number of meetings attended out of 5

%

Apologies

AFRICAN NATIONAL CONGRESS

Asmal, Prof K

1

20%

1

Baloyi Mr M R*

1

20%

Botha Mr N G W

0

0

Carrim Mr Y I

1

20%

1

Chauke Mr P*

2

40%

Chohan Kota Ms F I *

0

0

1

De Lange Adv J H

0

0

George Mr M E

0

0

1

Ginwala Dr F N

0

0

2

Holomisa Adv S P

5

100%

Hajaij Ms F

1

20%

Jeffrey Mr J H

4

80%

 

Jordan Dr Z P

1

20%

1

Mabandla Mrs B S

0

0

1

Maduna Dr P M

0

0

1

Magwanishe Mr B*

1

20%

 

Martins Mr BAD

1

20%

 

Masutha Mr M T

1

20%

1

Mbete Ms B

0

0

2

Moosa Mr MV

0

0

 

Mufumadi Mr F S

0

0

2

Hendricks Ms L B

0

0

 

Nonkonyana, Mr M

0

0

 

Pahad Dr E G

1

20%

 

Skweyiya Dr ZST

0

0

1

Solomon Imam G

1

20%

1


DEMOCRATIC PARTY

     

Delport Mr T

0

0

 

Eglin, Mr C

2

40%

2

Smuts Ms D

3

60%

1

Schmidt Mr H*

3

60%

 

Seremane Mr W J

1

20%

 

Swart Mr P*

0

0

1

       

INKATHA FREEDOM PARTY

     

Hlengwa Ink M W

4

80%

 

Smith, Mr P F

1

20%

 
       

NEW NATIONAL PARTY

     

Bakker Adv DM

0

0

1

Beukman Mr F

0

0

2

Camerer Mrs S M

3

60%

1

Pretorius Mr I J

1

20%

1

Van Deventer Mr F J

0

0

 
       

UNITED DEMOCRATIC MOVEMENT

     

Maseka Mr J

1

20%

 
       

AFRICAN CHRISTIAN DEMOCRATIC PARTY

     

Swart Mr S

1

20%

1

       

PAN AFRICANIST CONGRESS

     

De Lille Mrs P

0

0

 
       

FREEDOM FRONT

     

Mulder, Dr C P

0

0

 
       

AFRIKANER EENHEIDSBEWEGING

     

Aucamp, Mr C

0

0

1

       

FEDERAL ALLIANCE

     

Blanche Mr JPI

1

20%

 
       

UNITED CHRISTIAN DEMOCRATIC PARTY

     

Ditshetelo Mr PHK

2

40%

1

       

MINORITY FRONT

     

Rajbally Ms S

3

60%

1







NATIONAL COUNCIL OF PROVINCES

Member

Number of meetings attended out of 5

%

Apologies

EASTERN CAPE

     



ANC
Dlulane Ms B N

0

0

1

ANC Qokweni Mr P G

0

0

 
       

FREE STATE

     

ANC Ntlabati Ms S N

0

0

2

DP Botha Ms CS

1

20%

 
       

GAUTENG

     

ANC Moosa M W

0

0

1

       

KWAZULU NATAL

     

IFP Bhengu Mr M J

2

40%

1

       

NOTHERN CAPE

     

ANC Sulliman Mr P G

1

20%

2

       

NORTHERN PROVINCE

     

ANC Makoela Ms M I

1

20%

 
       

NORTH WEST

     

DP Lever Mr L G

0

0

1

ANC Surty Mr M E

3

60%

 

UCDP Tlhagale Mr J O

0

0

 
       

WESTERN CAPE

     

Usa

     

NNP Ackerman Mr C

2

40%

 

ACDP Durr Mr K D S

0

0

3

ANC Pandor Ms N

2

40%

1


* indicates alternate members
Sub Committee: Joint Constitutional Review

For the purpose of the facilitation of its work the Joint Constitutional Review Committee set up a Sub Committee, which is composed as follows:

Convener: Adv SP Holomisa
Task: Consider public submissions and report to the Joint Constitutional Review Committee



ANC Adv S P Holomisa

Mr. P Chauke

Mr. B Martins

Ms F Chohan-Kota

Mr. J Jeffrey

IFP Mr. P Smith

DP Ms. D Smuts

NNP Ms S M Camerer

ALTERNATES

DP Mr. C Eglin

IFP Ms S Seaton

NNP Mr. N Ackermann

 

NCOP

Western Cape Mr. KDS Durr

KwaZulu Natal Mr. MJ Bengu

Free State Ms SN Ntlabati



Submissions:
In terms of Joint Rule 102 (2) this Committee must place advertisements calling for public submissions in printed media before 1 May 2002. Because the deadline of 1 May 2002 was not reached, the Committee was granted an extension by the house to 10 May 2002.

The Committee received 132 submissions. The Sub Committee duly considered the submissions, made a summary thereof and reported to the full Constitutional Review Committee. The full Committee adopted the report attached as Annexure A.

Constitutional Literacy Campaign

The Joint Constitutional Review Committee is of the opinion that the majority of South Africans do not have a firm understanding and interpretation of the contents of the Constitution of the Republic of South Africa. The Committee’s major concern is that the lack of familiarity with the Constitution will render ordinary citizens defenseless, in the event of the violation of their rights.
The Joint Constitutional Review Committee’s role is to review the Constitution and not to publicize it. The Committee believes that the following institutions have a role to inform the public of the contents of the Constitution:

The Department of Justice and Constitutional Development
The Department of Education
The Public Education Unit in Parliament
Government Communications and Information Services
The South African Human Rights Commission
Public Protector
National Youth commission
The Commission on Gender Equality

The Committee wrote to some of the above institutions and asked them to inform it of the programmes they intend to put in place to educate the public about the contents of the Constitution.
The Committee recommends that the Department of Justice and Constitutional development should print and distribute an updated and annotated version of the Constitution, as there are substantial amendments made since its last adoption in 1996.

The Committee received responses from the Department of Justice and Constitutional Development, GCIS, Public Education Unit, Public Protector & Human Rights Commission. The responses of the institutions are summarized in Annexure B.
The Committee is prepared to have consultative meetings with these bodies to discuss ways of improving public awareness of the constitution.

There is no legislation before the committee as the main function of the committee is to review the constitution.



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Committee Secretary Date



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Control Committee Secretary Date



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Committee Chairperson Date

ANNEXURE A: REPORT OF CONSTITUTIONAL REVIEW COMMITTEE-SUBMISSIONS

132 submissions received.

1.Protection of rights affected by security related legislation

10 Submissions were received.

The submissions stipulate that the following rights are affected by the Firearms Control Act, 2000(Act 60 of 2000) and the Prevention of Organized Crime Amendment Act, 1999 (Act 24 of 1999):

The writers requested that these rights should be firmly entrenched in the Constitution.

The Committee does not support any amendments to the Constitution in this regard.

2. Private ownership of firearms

71 submissions were received.

The writers suggest that the right to private ownership of firearms should be protected in the Constitution.

The Committee does not support any amendments to the Constitution in this regard.

3. Rights of arrested, detained and accused persons

1 submission was received.

The submission proposes changes with regard to arrest procedures under section 35(1) of the Constitution, detention procedures under section 35(2) of an individual suspected of committing a serious crime. The submission also proposes changes with regards to the right to a fair trial under section 35(3).

The Committee does not support any amendments to the Constitution in this regard.

4. Pardoning of offenders

1 Submission received.

The writer views the government as disregarding the rule of law and recommendations of stakeholders, by pardoning, for political reasons, a large number of prisoners convicted of serious crimes. It is argued that those convicts pardoned by the government did not receive pardon from the Truth and Reconciliation Commission (TRC). The recommendation is that the government and Parliament are not above the law and should not grant such pardons.

The Committee does not support any amendments to the Constitution in this regard

5. Right to life and death penalty

3 submissions received.

The writers are concerned about the escalating levels of crime in South Africa. They therefore call for the death penalty to be reinstated.

The Committee does not support any amendments to the Constitution in this regard. The IFP and NNP recorded their dissension to the decision of the committee.

6. Political rights/electoral system

2 submissions received.

Electoral System - A more direct constituency-based electoral system is proposed rather than a party list system. Elected officials must be accountable to local communities to ensure the smooth running of democracy and the dispersion of decision-making processes.

National/regional referendums - Any political party, organization or individual should be entitled to request the government to hold a national/regional referendum on a certain matter if they can obtain a minimum amount of support in accordance with prescribed procedures within a specified period.

Election procedures should ensure a clear majority.

The Committee does not support any amendments to the Constitution in this regard.

7. Judicial System

1 submission received.

Changes to the Constitution are proposed to allow for the following improvements to the operation of the judicial system: time frame for hearing of court cases, allowing the submission of recorded testimony and submission of evidence acquired illegally.

The Committee does not support any amendments to the Constitution in this regard.

8. Equality

2 submissions received.

Section 9 of the Constitution provides for the equality of all citizens before the law, and that everyone has the right to equal protection and benefit of the law.

The submission proposes that the qualification to this right in section 9(2) of the Constitution should be removed, as equality is a fundamental right, which cannot be qualified in an open and democratic society.

The Committee does not support any amendments to the Constitution in this regard.

9. The Bill of Rights

2 submissions received.

The suggestion is that the Bill of Rights be reviewed to accommodate the interests of victims of crime.

The Committee does not support any amendments to the Constitution in this regard.

10. Inclusion of responsibilities within the Bill of Rights

1 submission received.

The submission proposes that the scope of the Bill of Rights should be extended to also include Responsibilities, i.e. the Constitution should contain a "Bill of Rights and Responsibilities" chapter.

The Committee does not support any amendments to the Constitution in this regard.

11. Traditional Authorities

2 submissions received.

One submission contended that the Interim Constitution compelled the Provincial and the National Parliaments to refer Bills pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, to the Provincial and the National Houses of Traditional Leaders before being passed into law.

The concern from the Traditional Leaders is that the Final Constitution of the Republic of South Africa (Act 108 of 1996) unfortunately does not have similar provisions as in the Interim Constitution, except to recognise the existence of Traditional leadership. As a consequence of this omission, it is submitted that this state of affairs is hampering the Houses of Traditional Leaders in making their informed inputs to Parliamentary Portfolio Committees, since they rely on newspaper advertisements, thus disabling them from presenting well researched submissions on particular subjects affecting traditional leaders due to stringent deadlines.

The submission further proposes an amendment of the Constitution to recognise traditional authorities as local government.

The other submission calls for the recognition of Khoisan as an indigenous nation entitled to a House of Traditional Leaders.

The Committee noted that there is a draft White Paper process from the Department of Provincial and Local Government underway, which provides opportunity for debate and the eventual formulation of policy on the issues received

12. Language Rights

1 submission received.

The submission proposes that the Constitution should recognise the existence or development of Sepulana as an indigenous language.

The committee does not support any amendments to the Constitution in this regard. The matter has, however, been referred to the Pan South African Language Board

13.Employee Rights

2 submissions received.

The complaint is about the Employment Equity Act, which is regarded as a form of an exclusion that is contrary to the word and spirit of the new Constitution. The Labour Relations Act and Bargaining Councils, extend concluded agreements to non-parties of the council.

The Committee does not support any amendments to the constitution in this regard.

14. Educational Rights

1 submission received.

The submission suggests that schools should provide food for learners.

The Committee does not support any amendments to the constitution in this regard.

15.Animal Rights

1 submission received.

The submission refers to the fact that there is no constitutional provision affording rights for humane treatment of animals and views it as a lacuna in the Constitution. It is suggested that this impacts on the way people view animals. It is therefore argued that legislation regulating the treatment of animals is insufficient. It is proposed that national legislation should create a realistic sustainable Act of Parliament and should provide for proposals outlined in the submission. (page 12 of the summary document)

The Committee does not support any amendments to the constitution in this regard.

16. Abolition of income tax

1 submission received.

This submission proposes amendments to the Finance Section of the Constitution.

It requests that sections 223-225 be replaced by the following:

The Committee does not support any amendment to the Constitution in this regard.

17. Submission on religion

1 submission received.

It is suggested that the Constitution needs a stronger religious approach. The submission proposed the inclusion of "Almighty God" in the Preamble of the Constitution.

The Committee does not support any amendments to the constitution in this regard.

18. Revision of the Constitution

1 submission received.

The following submission recommends unique revisions to the Constitution. The Constitution should be completely revised in the context of the state working towards a uniform State.

The Committee does not support any amendments to the constitution in this regard.

19.Laws to be subjected to Constitutional scrutiny

1 submission received.

The submission suggests that the Constitutional Court should subject every law passed by Parliament to scrutiny before it goes to the President for assent

The Committee does not support any amendments to the constitution in this regard.

20. Free Access to the Constitutional Court.

1 submission received.

The submission suggests that the Constitutional Court should be freely accessible to every citizen, without having to be represented by expensive legal counsel.

The Committee does not support any amendments to the constitution in this regard.

21. Submission from the Minister of Arts, Culture, Science and Technology

The submission raises problems experienced in the arts and culture sector regarding the alignment of legislative competencies in Schedule 5 of the Constitution.

The Minister suggests that these are local community services and that service delivery would be improved if there were no legal impediments to a local authority’s role in these activities.

Archives: the problems arise with the fact that whereas " archives other than National Archives" are exclusive provincial legislative competence, national records need to be kept in provinces for better management and better service delivery. It is also suggested that a shared competence would be more appropriate.

A decision on the matter was deferred, pending further investigation on the matter. The Committee is going to call a meeting with the Minister.

22. Interaction of the Joint Constitutional Review Committee with the public

26 submissions received.

The submissions suggested that there be interaction between the Joint Constitutional Review Committee and the public. The proposed interaction could vary from the personal hearings of evidence to Committee members visiting communities to inform them about the preparation of submissions.

The Committee noted that there is interaction in terms of inviting public submissions. The Constitutional Review Committee will determine through its programme ways of improving interaction with the public.

Annexure B: Constitutional Literacy Campaign

1. GCIS

In line with its mandate to provide leadership in government communications, the Government Communication Information System assisted the Constitutional Review Committee with the development of a communication framework for a constitutional literacy campaign during May 2001. GCIS was involved in a series of discussions and also made a presentation of the Communication Strategy to the Constitutional Review Committee during May 2002.

GCIS has indicated that implementation of this campaign should be driven by the lead department viz, the Department of Justice and Constitutional Development. GCIS can only play a supporting role in this campaign.

2. Public Education Unit of Parliament

The Public Education Unit responded by offering a Radio campaign, which was highlighting the importance of the Constitution and its review to the public. The literacy campaign was flighted on 14 SABC radio stations and covered 11 languages in all provinces. The flighting took place on Thursday 17 October and Friday 18 October 2002. It consisted of

Posters & pamphlets

The Public Education Unit undertook to produce posters and pamphlets that would be distributed to all constituency offices, members, libraries, trade unions, academic institutions, provincial legislatures and GCIS offices.

3. Public Protector.

The office of the Public Protector indicated that they are in a process of concluding a second national awareness campaign. In this campaign workshops were conducted in all provinces. During these workshops emphasis was placed on Constitutional rights of citizens and copies of the Constitution were made available to all delegates who attended the workshops. The project aims to create awareness of the role and services that this office offers through training members of the Public service, as well as NGO’s and paralegals active in rural areas. The evaluation and feedback from delegates was very positive.

The Eastern Cape Regional Office conducted an intensive campaign throughout the province, covering remote areas and following the same method used for the national campaign.

In Mpumalanga there was a National Constitution Week called "Respect", launched and hosted by officers in the Mpumalanga Regional Office. Copies of the Constitution were distributed to members of the public.

There was also an arrangement by this office for flyers, setting out role and function of the Public Protector to be inserted into 60 000 Metrorail publications in Gauteng and 75 000 on the Western Cape, the target audience being the commuters. The office is also participating in the Constitutional Week media campaign, by advertising as well as providing editorial for the Independent Newspapers nationally.

4.South African Human Rights Commission

SAHRC has been involved in various activities to promote a proper understanding of the Constitution, especially the Bill of Rights. Some of the activities include the following:

This competition was established in 1997 and involves all the public schools. The purpose is to test the level of understanding of the Bill of Rights among school going age children and to create awareness of the provisions in the Bill of rights through essay writing on selected human rights themes.

Every year around 21 March the SAHRC embarks on a week – long campaign involving commissioners and members of staff visiting different areas around the country to give talks and hold discussions on various human rights, awareness raising and publicity of the SAHRC among the ordinary citizens of the country.

In April 2001 SAHRC launched a National Centre for Human Rights Education and Training located at its premises. The center conducts on average of 18 workshops per month on various themes and for various beneficiaries. Since it was launched it has reached 19779 people through 282 workshops, seminars and presentations. The legal service department also engages in educational work through public hearings reaching a large number of people.

Timeously Commissioners are giving talks on various human rights issues in panels or to individuals. The center has implemented a roving "omnibus" training intervention focusing on the outer lying areas of the country.

 

Every year the Commission develops and disseminates various human rights materials at no cost to the members of the public.

5. Department of Justice and Constitutional Development

The department has established a new sub-directorate that specifically deals with constitutional education matters.

Launch of the education strategy 11 November 2002.

The Minister, Dr. Penuell Maduna has launched a Communication Framework on the Constitutional Literacy Campaign at Nelspruit in Mpumalanga in November 2002. The document will be packaged and distributed among government departments and all relevant stakeholders countrywide.

Respect project

Mpumalanga has been chosen as a pilot site for an education campaign under "respect Project" which will kick-start in January 2003.

Respect is a specific project that the Department has adopted to spearhead the constitutional literacy campaign in the country. The project concentrates on promoting the rights of women and children while giving an understanding of basic constitutional concepts and other rights.

Schools and tertiary institutions

On an ongoing basis, schools and tertiary institutions in the country are being visited to educate pupils on their constitution Booklets such as "children’s rights are cool" have been developed. On Human Rights Day the Department launched a Children’ s rights book.

Consultations with all universities and technikons in the country took place between August and October 2002 where an exchange of information took place. A commitment was secured to infuse constitutional education into a formal programme of institutions.

Constitution week 21- 26 October 2002

The Department, together with GCIS sensitized government in respect of the start of the Constitution Week 21- 26 October 2002. Printed material on maintenance and children’s rights was distributed to all the courts and other institutions.

 

Independent Newspapers supplement

The Department together with other stakeholders produced a supplement focusing on the constitution to be published in national newspapers.

Radio programmes

The Department has secured slots on various community radio stations and SABC regional stations educating the public on the constitution.

 

Constitution and the worker

Consultations with various trade unions took place between August and October 2002. The Department has developed and distributed among workers a new poster in this regard.

Printing the Constitution

The first print run of the constitutional pocket size books (450 000) was done early in 2002 and distributed countrywide to members of the public, government departments and other stakeholders.

The department is on the verge of placing the constitution on the website in all official languages. The next print run will take place during the new financial year.

Mulayotewa

The Department has developed and printed a simplified version of the constitution called Mulayotewa. 20 000 copies were produced and distributed to the public.

 

Other projects:

  1. There is a tender to educate government officials on the constitution underway.
  2. Tender to hold workshops on the constitution with local and provincial government separately will be realized in the new financial year.
  3. A Tender to educate all key political leaders on the constitution starting with local government, councilors, mayors, MEC’s and other key leaders at National level will be released during the new financial year.
  4. Arrangements and plans with the Department of education to include Constitutional Education in the syllabus for grades 1 to 6 on an incremental basis are underway.
  5. The development of learning material for schools curricula for grades 1 – 6.