Bacede needs 67 votes to change Constitution
‘‘ Entrenched provisions of the Constitution require not less than two- thirds of all the MPs to support the Bill.
MBABANE – Out of the 103 Members of Parliament, Hose a MP Mduduzi Bacede Mabuza would need 67 supporters to win a vote for amendment of the Constitution.
For now, he is guaranteed of six votes, which include his, two of his colleagues, Siphofaneni MP Mduduzi ‘ Gawuzela’ Simelane and Ngwempisi MP Mthandeni Dube.
Others who have openly supported the call for the election of a prime minister by the people are Nkilongo MP Timothy Myeni, Lomahasha MP Ndumiso Masimula and Mtsambama MP Simosakhe Shongwe.
If the Hosea MP is allowed to prepare a Bill to amend the Constitution, it effectively means he may need 61 more votes from both houses of Parliament. This is due to the fact that a Bill seeking to amend the Constitution is supposed to be tabled in a joint sitting of Senate and House of Assembly sanctioned by His Majesty King Mswati III.
MP Mabuza is on record to have indicated that his aim was to move a motion calling for the amendment of the Constitution. For clarity, the Constitution can only be amended through a Bill, not a motion.
ENTRENCHED
It must be said that the section of the Constitution, which MP Mabuza and others want to amend, so that people can elect the prime minister, falls under entrenched provisions.
An entrenched clause or entrenchment clause of a basic law or Constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments invalid.
Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party in a multiparty democracy.
Entrenched provisions of the Constitution require not less than two- thirds of all the Members of Parliament to support the Bill.
Reads Section 67 ( 1): “The King shall appoint the prime minister from among members of the House acting on recommendation of the King’s Advisory Council.”
There are 73 MPs in the House where MP Mabuza, MP Dube, MP Simelane and three others are members.
ELECTED
It must be said that 10 of these 73 MPs were appointed to the House by the King. The total membership also comprises four female MPs who were elected from the country’s four regions House members.
There are 59 MPs from Tinkhundla centres, some of whom are Cabinet ministers. These are Pigg’s Peak MP Clement Jabulani Mabuza, Dr Thambo Gina, Moses Vilakati, Lady Mabuza and David Ngcamphalala.
Deceased Shiselweni One MP Christian Ntshangase and LaMgabhi MP Makhosi Vilakati are yet to be replaced. By- elections in these two constituencies have commenced, but were put on hold in the wake of the civil unrest that resulted in property destruction across the country and deaths of people.
Notably, if all of the elected MPs in the House of Assembly and the four female members were to support the Bill for the election of the prime minister, they could have 63 votes ( 59+ 4).
They would still need an additional four votes, which, perhaps, could come from some of the 10 legislators who were elected to Senate by the House of Assembly.
DEBATES
Based on recent parliamentary debates, it must be said that the House of Assembly is divided over the issue of an election of a prime minister by the people.
Political analysts and observers say it is unlikely for the Cabinet ministers to support the Bill.
“That could be a toll order for the three MPs to push for the passing of the Bill, but everything is possible in a secret ballot,” said a source in Parliament.
“When people vote, never even say the three MPs are guaranteed of the three other votes from Myeni, Masimula and Shongwe. People change their minds when they face the ballot boxes.”
In another development, the amendment of the specially entrenched provisions would require not less than 77 MPs supporting the Bill.
Parliament has power to amend any provision of the Constitution.
The MPs can even amend both specially entrenched provisions and entrenched provisions of the Constitution.
A legal source referred to Section 245 of the Constitution as giving the MPs powers to prepare Bills, which they can table in Parliament for purposes of amending the Constitution. He said the Bill- drafting process usually happens outside Parliament, and it involves engaging stakeholders.
A senior politician, who preferred to address the issue on condition of anonymity, said parliamentary procedure dictates that a Bill should have a stakeholder input. This is due to the fact that all laws which are to be passed by Parliament must be people- driven, he said.
CONSULTATION
Another legal source said consultation with stakeholders, which may include any person or persons, including emaSwati at tinkhundla level, is necessary to ensure that the law seeking to legitimise constitutional amendment represents the interests of the masses.
Otherwise, he said Parliament usually defers or rejects Bills that do not represent the wishes of the people or are not people- driven.
“It’s important that MPs who want to present Bills in accordance with the Constitution consult with stakeholders countrywide,” said the legal source on Friday.
He pointed out that lawmakers could also amend even powers vested in His Majesty the King and Her Majesty Indlovukazi as long as they uphold the Constitution.
It is stated in Section 245 that Parliament may “amend any provision of the Constitution” by introducing a Bill expressly providing that the supreme law shall be same Procedure has always been that stakeholders need to be consulted before a Bill is tabled in Parliament for debate, passing and subsequent transmission to the King for assent.
Reads the section: “Subject to the provisions of this chapter, Parliament may amend any provision of this Constitution by the introduction of a Bill expressly providing that the Constitution shall be amended as proposed in that Bill.”
Say the MPs who advocate for democratic change resolve to amend the Constitution so that people can elect a prime minister, the legal sources concurred that they could do so by tabling the Bill in a joint sitting of Senate and House of Assembly.
SUPPORT
Tabling such a Bill before a joint sitting is not easy, another politician said, as it also involves lobbying both members of Parliament for support.
Sipho Gumedze, a human rights attorney, said, as an officer of the court, it would be unethical for him to state if the two arrested MPs were consulting with stakeholders outside Parliament because the matter was before court.
He was asked specifically to comment on the concern raised by some MPs in the House over their immunity limits, with particular reference to the arrests.
Asked if the MPs were at liberty to amend all the provisions of the Constitution, Gumedze reserved his response, but hinted that under normal circumstances, there were certain no- go- areas in the supreme law, citing land as an example in the South African Constitution.
Thulani Maseko, a senior attorney based in Manzini, said MPs, in terms of
the Constitution are free to amend any provision of the supreme law.
“There is no provision that they cannot amend. In fact, there is no law that cannot be amended. I can say there are no provisions considered as no- go- areas in the country’s Constitution,” he said.
In a previous interview, the Attorney General, Sifiso Mashamphu Khumalo, said the Constitution could not be amended through a motion.
Section 245 ( 2) refers to a First Schedule, which should be observed when a Bill seeking to amend the Constitution is tabled in Parliament.
Therefore, it is provided in Section 1( 1) ( c) of the First Schedule that the King shall summon a joint sitting of the Senate and the House of Assembly whenever he ( King) is informed by the president of the Senate or the speaker of the House of Assembly that a member of the Senate or the House of Assembly, as the case may be, has given notice of the introduction of a Bill to amend the Constitution.
It is mentioned in Section 245 ( 3) that a Bill under Subsection ( 2) shall not be so introduced unless it has been published in the Gazette not less than 30 days before the introduction at the joint sitting.
ELAPSED
“After the Bill has been introduced in the joint sitting, no further proceedings shall be taken on the Bill in Parliament until the prescribed period has elapsed,” Subsection 4 reads.
If, after the prescribed period, the Bill is passed at the joint sitting and or at a referendum with the requisite majority, it shall be submitted to the King for assent, he said.
According to the supreme law, where a Bill in terms of this section has been duly passed at a joint sitting, it shall not be presented to the King for assent unless it is approved by a simple majority of all votes validly cast at a referendum in such manner as may be prescribed.
At the time of the referendum, every person should have been registered as a voter in order to vote.
The institution of the monarchy falls under specially entrenched provisions.
The Bill seeking to amend the specially entrenched provisions shall not be passed at the joint sitting unless it is supported on its final reading by the votes of not less than three- quarters of all the members of the two chambers.