This is the first ever report of the Joint Constitutional Review Committee since its establishment in accordance with section 45 of the Constitution and the Joint Rules of Parliament.
The Constitutional Review Committee, in determining its role in this Fourth Parliament and realising its effort to bring its capacity on par with its critical task, identified various opportunities to enhance its knowledge and understanding by seeking assistance from institutions such as the Venice Commission, which is perceived as the world's think-tank and a repository of knowledge, expertise and practical skills relating to constitutional matters.
In addition, the Constitutional Review Committee sought to reposition its work in order to look beyond the mandatory processes of the public submissions process and to learn from international best practice in that regard; to develop a protocol of action and a methodology of work that would assist in determining whether the Constitution required amendment or modification; to check different procedures which other member states follow when amending their constitutions; and to establish whether there were African countries that were members.
The Venice Commission extended an invitation to the Constitutional Review Committee to send a five-member delegation to its two-day plenary session, which was held at the Scuola Grande di San Giovanni Evangelista in Venice on 15 to 16 October 2010. The committee also had an exchange meeting with the secretariat of the commission in Strasbourg on 18 to 21 October 2010.
The areas of the commission's activities include the following: to provide constitutional assistance, which takes the form of opinions, to states or international organisations or bodies that have approached it for opinions in relation to draft constitutions or constitutional amendments; identifying and developing standards in the area of elections through, among other things, codes of good practice on elections and referendums on political parties; and to give opinions on constitutional aspects of legislation relating to courts.
The issues dealt with during the engagement with the Venice Commission related to the constitutional function and the mandate of the "activist" Parliament. Some areas of focus included the status of the implementation of second-generation and socioeconomic rights, which should drive the transformation of the society; the accommodation of the institutions of traditional leadership within the democratic framework; and the performance of the system of provincial and local governments.
Furthermore, the committee is of the view that if a review of the amendment of the Constitution involves not only assessing whether or not the Constitution requires amendment but also its health, including the state of its implementation and its impact on society in respect of transformation, there is a need to develop a new methodology for such a purpose.
The committee feels that its mandate of reviewing the Constitution annually must take cognisance of the fact that its object is a document with which there is general satisfaction both domestically and internationally. Therefore the committee is of the opinion that the review should only suggest amendments, where necessary, to improve such a document.
In addition, the review should also consider dispassionately the status of the implementation of South Africa's Constitution regarding how much the wide gap between reality and legality is being bridged through the progressive implementation of the Constitution.
South Africa still enjoys "special status" within the Venice Commission, because it did not qualify for membership or observer status before the advent of democracy in 1994. The Commission had taken a decision in principle not to extend its membership beyond its current number. Furthermore, observer status was no longer available, but the Commission would gladly make an exception for South Africa. This exception would be motivated not only by the Commission's long history of exchanges with South Africa, but also in consideration of the value that South African constitutional experience holds for many other countries, especially those on the African continent. It was further motivated by the richness and uniqueness that the South African constitutional experience might add to the unique pool of knowledge and expertise gathered in the Venice Commission.
The committee also met with Mr Michael O'Boyle, the Deputy Registrar of the European Court of Human Rights.
Lastly, the committee had an exchange of views with the chairperson and members of the European Parliamentary Committee on Constitutional Affairs. The briefing was around the composition, functions and powers of the committee.
In conclusion, the study tour was an overall success and was a beneficial exercise in that it met the committee's expectations, not only with regard to mandate and core objectives, but also as opportunity to study international best practice.
The recommendation of the committee is that the verbal invitation extended by the Venice Commission to South Africa to become a full member of the Commission should be conveyed to the Department of International Relations and Co-operation and to the Department of Justice and Constitutional Development. I recommend that the Council adopts the report.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.