Wednesday 8 May 2013

Caroline B Ncube

South Africa's TK Bills test the implementation of a Constitutional Court judgment

As noted elsewhere South Africa now has two Bills on the protection of TK. These TK bills are significant in two different ways: namely with regard to the IP substantive debate as to whether conventional or sui generis protection is more appropriate for TK and as part of the broader debate about parliamentary procedures in a constitutional democracy. This post considers the second issue.

The progress of  first bill (the IP Laws Amendment Bill No.8 of 2010) through parliament,  is at an advanced stage. It was passed by parliament in 2012, but was denied Presidential Assent (read the president's letter - p.2 - 4). It was then sent back to parliament for reconsideration. At its meeting of 2 May 2013, the relevant parliamentary committee decided that it has adequately reconsidered the first bill and it now seeks to move the Bill forward. This reconsideration entailed referring the bill to the National House of Traditional Leaders (NHTL) and reclassifying it from a section 77  to a section 76 bill. The reclassification was necessary as the bill is not a money bill  and section 77 of the Constitution deals with money bills. Despite objections from some members, the committee voted to adopt the bill without amendment. (The minutes of this meeting are available here - subscription required).

The second bill, (the draft Protection of Traditional Knowledge Billis fairly new, having been released for public comment in April this year.  It was submitted to the Speaker of Parliament at the beginning of May as a private member's bill by the opposition Democratic Alliance's shadow minister for trade and industry, Dr Wilmot James. It has thus not yet been considered by parliament.The introduction of a second alternative bill to parliament as a private member's bill is unprecedented in South Africa. It only became possible to introduce private members' bills pursuant to a Constitutional Court decision in October 2012 which struck down certain parliamentary rules as unconstitutional. Section 73(2) of the Constitution provides that any member of the National Assembly can introduce a bill to parliament. However, this power could not be exercised as parliamentary rules provided that a private member's bill could only be introduced with the permission of parliament. A member of the opposition Inkatha Freedom Party, Dr Mario Ambrosini, successfully litigated to have this, and other related rules, struck down as unconstitutional (read the judgement here).

Now the conundrum is how parliament should proceed. Should it carry on with the procedures required to return the first TK bill to the President for his assent or wait until the second bill is fully before it?
The Constitution and Parliamentary Rules are unclear on this point as they do not envisage the situation we are in: that is two competing bills seeking to regulate the same issue proceeding through parliament, at different paces.

One possible solution is for the matter to be referred to the parliamentary rules committee for its guidance. If parliament proceeds with the first bill and ultimately obtains Presidential assent for it, the second bill still has to be properly considered by parliament. If it also is passed by parliament and obtains Presidential assent, it will repeal or supersede the first law. However, this is highly unlikely because the opposition parties do not have the necessary voting majority to pass the bill. Nonetheless, the introduction of the second bill to parliament is still very important as it forces parliament to confront the substantive IP debate about the best way to protect TK and provides the opportunity for reflection on, and perhaps reform of, parliamentary procedures.

Caroline B Ncube

Caroline B Ncube

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