The FIC Amendment Bill and the Presidential signature

The Financial Intelligence Centre Amendment Bill has been on President Zuma’s desk for nearly five months, but he has not yet signed it. 

The President has said that this is because he has misgivings about the constitutionality of the Bill, prompted by a petition from the Progressive Professionals Forum (led by Mzwanele Manyi).

His failure to sign the Bill has been controversial. Finance Minister Pravin Gordhan has stated that the Bill is essential to the fight against terrorist financing and money laundering, and for South Africa to comply with its international treaty obligations. Other senior politicians, including many within the ANC, agree and have urged the President to sign the Bill, which Parliament passed unanimously, as soon as possible.

The Council for the Advancement of the South African Constitution (CASAC) makes an additional argument. It argues that the President does not have the power to sit on the Bill. He must either sign it or send it back to Parliament if he thinks it is unconstitutional. This brief considers the nature of the President’s powers in this regard, with reference to how he has actually exercised them since 2010.

The President’s powers
In South Africa, for a law to enter into force, it must be passed by both houses of Parliament (the National Assembly and the National Council of Provinces) and it must be signed by the President. Without the President’s signature, a bill cannot leave Parliament.

But, unlike the President of the United States of America, President Zuma does not have an untrammelled veto power over legislation passed by Parliament. Section 79 of the Constitution provides that, once a bill arrives on the President’s desk, he has two options. He must either sign it or, if he has reservations about its constitutionality, return it to the National Assembly for reconsideration. The ‘if’ in the previous sentence is essential. The President may only refuse to sign a bill if he thinks it is unconstitutional. He cannot do so for political reasons. As the Constitutional Court held in Doctors for Life:

'The President’s role in the law-making process reflects a careful effort to ensure that the law-making process is kept under check consistent with the principle of checks and balances. The scheme is founded on the trust that our system has for the role of the President, namely, the responsibility it vests in the President to “uphold, defend and respect the Constitution as the supreme law”, and thus to ensure that laws that he or she assents to and signs, conform to the Constitution.'

The President’s role in the law-making process is to ensure that legislation is constitutional. Nothing more, nothing less.

The President argues that he is not failing in this role. He claims that he is merely busy considering whether the Bill is constitutional or not. Once he has made his decision, he will either sign it or refer it back to Parliament.

The problem is that the President has taken a long time to make his decision – as mentioned above, a little under five months (Parliament sent him the Bill on the 26th of May). The Presidency claims that this is normal for a controversial bill. It points to a number of other controversial bills that the President has not assented to or sent back to Parliament. How does this response square with the facts?

Statistics on Acts
Between the beginning of 2010 and the end of 2015, the President assented to 182 bills. Over this time period, the average amount of time between when Parliament sends the President a bill and when he signs it is 41 days – a little over a month.

Most bills (69% of them) are signed in 50 days or less. Only nine percent of bills took longer than 80 days to sign. And only one percent of bills (two bills in total) took longer than the time that the FIC Amendment Bill has been on the President’s desk.

 

The longest the President has taken to sign a bill is 192 days (about 6.5 months). This was for the Legal Practice Act, a controversial piece of legislation.

There seems to be no trend for the average amount of time the President takes to assent to bills across the years in the sample. In other words, the President does not seem to have worked slower or faster over time.  Rather, average times have moved erratically.  In 2010, the President worked quickly – the mean time for presidential assent was 17 days. In 2011, this jumped up to 35 days, down to 27 days in 2012, up to 46 in 2013, up again to 64 in 2014 and then dropped to 32 days in 2015.

Unsigned bills
The FIC Bill is not the only unsigned bill that the President has on his desk. The Expropriation Bill left Parliament on the 27th of May (around five months ago) and has not yet been signed. The Private Security Industry Regulation Amendment Bill, which, controversially, would require high levels of local ownership for private security firms that operate in South Africa, has been left unsigned for around two-and-a-half years. The Protection of State Information Bill, which faces massive civil-society opposition, was passed by Parliament a whopping three years ago.

Diligence or delay?
When a bill lands on the President’s desk, he must either sign it or send it back to Parliament if he has reservations about its constitutionality. He is not allowed to leave the bill unsigned indefinitely.

However, the President may take a reasonable amount of time to decide whether to sign or return a bill. In other words, he is not required to decide the moment a bill lands on his desk.

Now, one cannot nail down what a reasonable amount of time would be in all circumstances. But one could argue that a time significantly longer than the time the President usually takes is more likely, all other things being equal, to be unreasonable. On this measure, the President’s lack of action on the FIC Amendment Bill seems difficult to justify. It has been unsigned for 144 days – about 250% longer than the average bill. Only one percent of the bills the President has signed in to law our sample set took him longer than the FIC Amendment Bill. In other words, he signed 99% of the bills since 2010 faster than the FIC Amendment Bill.

It is thus possible that the President is failing in his constitutional obligation in relation to this important bill.