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Gay-marriage bill hits new snag
06/09/2006 20:46 - (SA)
Cape Town - The government's move to recognise same-sex marriages was thrown into turmoil on Wednesday when it emerged that the State Law Adviser (SLA) had declined to certify a bill that already had been placed before parliament.
The law adviser's office says it does not believe the bill meets all the requirements laid out in recent Constitutional Court judgments on the issue.
However the home affairs portfolio committee - which has already drawn up a schedule of public hearings on the bill - and Home Affairs Minister Nosiviwe Mapisa-Nqakula are to press on with the bill, regardless.
"We are quite happy with this piece of legislation that we have complied with the Constitutional Court ruling," said Mapisa-Nqakula after a meeting of the committee.
Confident Mbeki will sign
"We're going ahead: we're introducing the bill in parliament."
Any changes necessary would have to be made as part of the parliamentary deliberations on the measure.
She said she was confident President Thabo Mbeki would be in a position to sign the bill into law before the Constitutional Court deadline of December 1.
If the bill is not in place before the deadline, which was set in 2005, the Marriage Act will automatically be adapted to include the words "or spouse" after the words "or husband".
An agitated Mapisa-Nqakula told the committee earlier that after the cabinet approved the bill on August 23, the SLA had declared it was not going to certify the measure.
Instead it had given her department a new draft of the bill.
Adequate public participation
"And I'm saying no, what we need from them is to understand whether the bill is unconstitutional or not, and they're saying no, there's no problem with that," she said.
Bills are normally "certified" by the SLA before they go to parliament as an indication that the office believes they are constitutional, and that they do not clash with existing legislation.
The minister told the committee that taking the SLA's "new bill" back to the cabinet would delay the legislative process and not allow for adequate public participation before the December deadline - another thorny issue in the wake of two other recent Constitutional Court rulings on public participation.
Ayesha Johaar of the SLA's office told the committee the bill had arrived in the office only on August 14, and that the SLA would have liked more time to study it.
She said the office felt the bill did not completely meet the principles set out by the court, although this did not mean that it would be found to be unconstitutional.
Nor did it mean the bill could not be submitted to parliament.
In its present version, the bill "would in all probability create some challenges for the government".
This was because it made no reference to minors, which the Marriage Act did; because it allowed state marriage officers to refuse to solemnise same-sex unions on the grounds of conscience; and because it contained a section on non-marriage "domestic partnerships", which could also create problems.
'It's not a train smash'
Committee chairperson Patrick Chauke proposed that Mapisa-Nqakula talk to the SLA on Thursday to "resolve this issue", and report back to the committee when it met on Friday morning.
"It's not a train smash," he said. "We'll meet the deadline."
According to legislative experts, this is not the first time that Parliament has had to deal with uncertified bills.
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