Can members of National Assembly (NA) who belong to the Economic Freedom Fighters (EFF) be suspended from Parliament for breaching the rules of the National Assembly? And if they “disrupt” proceedings by insisting that the speaker acts impartially and that the President answers the questions validly posed to him, can they be arrested – as suggested by a slightly unhinged Gwede Mantashe last week?
Parliament is supposed to be the engine room of South Africa’s democracy. Apart from considering and passing (constitutionally valid) legislation, Parliament is also required to hold the executive accountable, to oversee its activities and to provide a platform for debate about important issues of the day.
For members of the majority party there is an inherent conflict between fulfilling these constitutional obligations as elected representatives (and hence acting as servants of the people) and submitting to the strict discipline of the party who they represent in Parliament and following the instructions of their party leaders.
How do you hold the members of government accountable if they are leaders of your party who may have a decisive say in whether your name appears on the electoral list at the next election? How do you insist on accountability when you know Gwede Mantashe might call you in for a tongue lashing if you dare to ask the right questions? How do you insist on holding the executive to account if you run the risk of being “redeployed” as third assistant secretary to the South African ambassador of Tjkitjikistan?
Nevertheless, section 58 and 71 of the Constitution states that both Cabinet members and members of the National Assembly (NA) and the National Council of Provinces (NCOP) enjoy enjoys freedom of speech in Parliament and in its committees, “subject to its rules and orders”.
This means freedom of expression can only be limited if authorised by the rules and orders of Parliament. It cannot be limited by arbitrary rulings of the speaker not explicitly authorised by the rules and orders of Parliament.
As the Supreme Court of Appeal (SCA) ruled in the De Lille judgments many years ago, customs that apply in the British Parliament do not form part of South Africa’s Parliamentary rules and cannot be applied here without being incorporated into the rules and orders of our own Parliament.
The need for clearly defined, precise and narrowly tailored written rules on what kinds of speech can be limited in Parliament is important in a system like ours in which the speaker is neither independent nor impartial but a political leader of the majority party with a vested interest in protecting members of government against any accountability and criticism.
In the absence of clear rules, the speaker will have a blank cheque to make-up rules or to misapply vague rules to stop debate and to protect the members of cabinet from being held accountable by MPs who have a constitutional duty to do so.
It is for this reason that many of the rulings made by the speaker disallowing so-called “unparliamentary statements” by MPs are probably illegal and unconstitutional. There is no rule or order that authorises the speaker to limit “unparliamentary” statements and when she does make such a ruling it is therefore not authorised by law and almost certainly infringes on section 58 (or 71 if done by the Chairperson of the NCOP) of the Constitution.
Besides, the notion of “unparliamentary statements” is so vague and incomprehensible that it all but invites the speaker and other presiding officers to invoke it to stifle debate and free speech in Parliament in order to protect the members of the executive from criticism, scrutiny and accountability.
However, the rules of Parliament as well as the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act do regulate some forms of speech and conduct in Parliament.
Thus rule 49 of the NA requires members of the NA to take their seats when the presiding officer rises to speak. Rule 50 allows the presiding officer to order a member to stop his or her speech when the member persists in irrelevance or repetition of arguments. Rule 63 prohibits members from using “offensive or unbecoming language”. Rule 66 prohibits members from reflecting “upon the competence or honour” of a judge or a member of a Chapter 9 institution.
It is important to note that rule 72 of the NA makes clear that every member of the NA has a right to raise a point of order and may speak to do so. (Where a speaker refuses to hear a member who raises a point of order – as she did during the debate in which President Zuma refused to answer questions put to him by the EFF – she is in breach of the rules which she is supposed to uphold.)
Despite this, the speaker does have broad powers. She has a right to order a member to withdraw from the chamber where there is a breach of the rules or, in serous cases, to suspend the member. If the speaker is presiding this cannot be done after the fact, but must be done while the house is sitting. This means the speaker does not have the authority to suspend members of the EFF for what happened in the House last week, as she did not suspend them at the time – she merely suspended proceedings of the House, as she was entitled to do.
This does not mean that members of the EFF may not still potentially face legitimate suspension, as the Powers, Privileges and Immunities Act provides for suspension of members for up to 30 days and for a docking of an MPs pay for up to one month if they are found guilty of contempt of Parliament.
Contempt includes, amongst other things, improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions; assaulting or threatening another MP; while Parliament or a House or committee is meeting, creating or taking part in any disturbance within the precincts; bribing MPs or taking a bribe; or hindering or obstructing a staff member in the execution of the staff member’s duties.
A “disturbance” is defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or committee”.
This definition is vague: does it include statements made by MPs in which they raise points of order to demand that the President answer questions posed to him, when the President is illegally protected by the speaker from having to answer? And if it is a disturbance, is it an improper disturbance as required by the Act? Is an improper disturbance not only related to threats, violence and destruction of property and not to disturbances caused by the exercise of freedom of speech by MPs?
Given the fact that the Constitution guarantees the right of MPs to free speech in Parliament, these provisions have to be given a narrow interpretation to limit their scope. It may therefore very well be that an impartial body would find that what the EFF MPs did, does not amount to an improper disturbance of Parliament.
But who exactly caused the disturbance in the case relating to the (non) answering of questions by President Jacob Zuma in the NA? Was it the President who refused to answer the questions posed to him? Was it the speaker who bent the rules of Parliament to protect the President? Or was it the EFF members who refused to obey the rulings of the speaker and insisted that the president answer the questions? Or was it perhaps all three groups?
In terms of section 12 of the Powers, Privileges and Immunities Act, a standing committee of the NA (the Powers and Privileges Committee) must now decide these questions. An ad hoc Committee of the NA cannot decide on these questions as this would be in breach of section 12 of the Act read with section 191 of the rules of the NA.
The Act requires this committee to “enquire into the matter in accordance with a procedure that is reasonable and procedurally fair” and then to “table a report on its findings and recommendations in the House”. The House can then act against individual MPs if the standing Committee on Powers and Privileges makes a finding against them, based on the relevant facts, after having conducted a fair hearing.
It would obviously not be procedurally fair for the Committee to prejudge the matter or for the majority of the Committee members from the governing party to make decisions on the “guilt” or “innocence” of the EFF MPs based on the instructions of their party leaders. Where a perception has been created that the matter has been prejudged by some members of the Committee the fairness of the hearing will be called into question.
Given the statements made by some ANC leaders (and especially the Secretary General of the ANC) calling for strong action against EFF MPs, it is difficult to see how the Committee can actually conduct a reasonable and procedurally fair inquiry with ANC MPs present on the Committee. The Chief Whip of the ANC may very well have created a reasonable apprehension of bias on the part of ANC members of the Committee because of his premature statements about what happened in a branch of government.
Ironically, by commenting so hastily on the matter, the ANC leaders may well have provided the EFF members with a valid legal argument to nullify the work of the standing committee.
Lastly section 11 of the Act states that:
A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.
If this section applies to MPs as well as other persons who are not MPs and if “disturbance” includes a disturbance made through rowdy and unpopular speech, the section is clearly unconstitutional. This is so because section 58 and 71 of the Constitution prohibits MPs from ever being arrested for anything any of them has said in either of the houses of Parliament or its committees (even if what they have said was disrespectful, disruptive or in breach of the rules and the orders of Parliament).
These sections are not limited in any manner, providing MPs with an absolute right against arrest for what they say in Parliament.
But the section could also be read in conformity with the Constitution by reading it as not applying to MPs and I suggest this is the correct interpretation of the section. It is for that reason that the statement by Gwede Mantashe that EFF MPs should have been arrested and any suggestion by so called “Security Cluster” Ministers that MPs could be arrested for what they say in Parliament is dangerous and unconstitutional nonsense.
All this does raise an important question: has the time not come to consider the need to appoint a more independent and impartial person as speaker to apply the rules fairly and in a more even handed manner?
Should an MP who is elected as speaker not give up membership of the party or any leadership positions in that party for the duration of his or her speakership? Surely, a more fair and impartial speaker would instil more respect from all MPs, would ensure impartial rulings and may well prevent a recurrence of the kinds of actions taken by EFF MPs last week.