Amending Section 25 of the Constitution: Five questions answered

The Ad Hoc Committee to Amend Section 25 of the Constitution effectively kicked the political football of expropriation without compensation into touch on Wednesday when it recommended that it couldn't finish its work before the Fifth Parliament next week and that the Sixth Parliament must be tasked to take up the matter.

1. Wait… what? Didn't Parliament agree last year that the Constitution should be amended to allow expropriation without compensation?

Yes, it did. But that didn't mean that the Constitution changed. That was the Constitutional Review Committee (CRC). Their only job was, in simple terms, to determine if the Constitution should be amended. In the end, they decided that it should be amended to allow expropriation without compensation. 

The National Assembly then adopted a motion establishing the ad hoc committee. Their job was to draft the legislation of the actual amendment.

2. Why is it taking so lo-o-o-ng? Couldn't the amendment be done by now?

Changing the Constitution is no simple task and can't be done on a whim. Complicating matters further is the fact that Section 25 is in the Bill of Rights. While there have been 17 amendments to the Constitution since it was passed in 1996, this will be the first time that the Bill of Rights is amended.

The process to pass any legislation is cumbersome. Usually, a draft bill is preceded by a green paper - a policy statement describing what the legislation is about and what form it should take – then a white paper - similar to a green paper, but more refined. Then work on the draft bill starts.

In the case of a constitutional amendment bill, the draft bill has to be published in the Government Gazette for public comment 30 days before it is tabled in Parliament. Parliament may not adopt the bill within 30 days after it has been tabled. 

Read: Land: Parliament's failure to enact legislation the problem – Advocate Ngcukaitobi

Parliament is also obliged to have a rigorous public participation process. This can also take time. The CRC's public participation process crisscrossed through the country for public hearings and had oral submissions in Parliament. 

Keep in mind that Parliament adopted the motion that set the review process in motion last year in February, and then only adopted the CRC's recommendation in December. And that was just to decide if Section 25 has to be reviewed.

The bill must then be adopted by Parliament with a two-thirds majority in the National Assembly and six out of the nine provinces supporting it in the National Council of Provinces.

3. And then the land can be expropriated without compensation?

Not quite. Further legislation will first have to be enacted – going through the whole parliamentary process – to effect to the constitutional amendment. The good news is that the major piece of legislation in this regard – the Expropriation Bill – is already in the draft bill phase and has been gazetted. 

4. What happens next?

The ad hoc committee's report recommending that the matter is referred to the Sixth Parliament will be brought to the National Assembly for deliberation and adoption before the National Assembly rises on March 20. 

5. So this ad hoc committee will just pick up where it let off when Parliament reconvenes after the elections?

No. The new National Assembly will have to resolve to establish a committee to deal with the matter. The situation is similar to what happened at the end of the Fourth Parliament, when the ad hoc committee on Nkandla didn't make much headway before the end of their term, and the Fifth Parliament reconstituted an ad hoc committee on Nkandla to deal with the Public Protector's report on the "security improvements" at then president Jacob Zuma's private home in Nkandla.

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