SONA chaos: preliminary legal and strategic points

Your response to the events which occurred around the President’s State of the Nation Address (SONA) last night may well depend on whether you are an EFF supporter, an ANC supporter, or whether you judge events according to the principles of open democracy embodied by our Constitution. In the name of healthy public debate (dream on, I hear you say), I post my first thoughts about the SONA events, which I wrote for my Facebook page. 

It is not good for Parliament or for a democracy when unidentified individuals (who may or may not be police officers or soldiers) use violence to physically remove rowdy elected members of Parliament from the National Assembly Chamber. It seems to me the Speaker, the EFF as well as the unidentified security personnel at best behaved unwisely and at worst in contraventions of the various rules and regulations that govern their conduct.

First, the jamming of the cell phone signal in the House and the alleged involvement of the Department of State Security in jamming the signal (which has not been confirmed or denied) was both outrageous and illegal. It is illegal to scramble a cell phone signal as ICASA regulation (published in Government Gazette 24123, from November 2002) prohibits it. It is also in conflict with provisions of the Constitution, which allows the public and the media access to the proceedings of Parliament and only allows reasonable limitations on it.

If Department of State Security was involved (as suggested by several journalists) it is also a shocking breach of the separation of powers doctrine. The members of the Executive have no business involving themselves in the operation of Parliament. It is like the Director General for Home Affairs taking over the role of the Speaker.

Second, (and this is my personal view) I did not like the fact that the Speaker – employing kragdadigheid tactics which reminded me of a previous era – seemed overeager to call in the security services to have the EFF members removed and “taught a lesson”. It looked as if it was all planned and done according to a script. Using the police to teach political opponents a lesson (or creating the perception that you are doing this) is in conflict with the spirit of a constitutional democracy.

Allowing the EFF to go ahead, suspending the proceedings and demonstrating to all voters that the EFF was not prepared to act in terms of the rules would, in my opinion, have been the constitutionally desirable and politically most astute thing to do. Making martyrs of political opponents, on the other hand, is usually not a winning political strategy.

But was the Speaker legally authorised to send security personnel into the Parliament? Section 4(2) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act states:

When there is immediate danger to the life or safety of any person or damage to any property, members of the security services may without obtaining such permission enter upon and take action in the precincts in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the Speaker and the Chairperson.

As there was no immediate danger to the life or safety of any person or damage to any property, the section does not apply. However, that is not the end of the matter as section 11 of the Act states:

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.

A disturbance is defined as: “any act which interferes with or disrupts or which is likely 10 to interfere with or disrupt the proceedings of Parliament or a House or committee”.

If the “person” referred to in section 11 includes any MP and if it is not limited to non-MPs, it would mean that once a disruption takes place, the Speaker can ask security services to enter the Chamber and remove MPs. However, it is not entirely clear whether section 11 covers MPs. The Constitution prohibits the arrest of MPs for anything they say in Parliament, so if section 11 allows for the arrest of MPs it would clearly be unconstitutional.

Further, the Act distinguishes in various places between “person’s” and MPs, which may cast doubt on whether section 11 applies to MPs.

If we assume that section 11 does cover MPs (a court will ultimately have to decide this point), the section must be interpreted narrowly so as to give effect to the provisions of the Constitution, specifically those sections guaranteeing the privileges of MPs and protecting their right to free speech. Section 11 must thus be interpreted to interfere with the free speech of MPs and with their privileges as little as possible, given what meaning the words are reasonably capable of meaning.

This suggests, I would argue, that a disruption which could trigger security force involvement would have to be interpreted to mean a situation where an MP or MPs act in such a way that it clearly renders it impossible for the House to continue with its business. I am not sure raising (what were clearly irrelevant and ill-conceived points of order or challenging the rulings made by the Speaker) rise to the level of a constitutionally valid “disruption”. At some point it may have been the case if the Speaker had allowed the EFF members to continue, but I am not sure it was the case when the Speaker ordered the removal of some EFF MPs.

But this is a legally grey area, so reasonable people may well differ on this until a Court clarifies the matter.

In any case, I am one of the voters who are put off by some of the antics of the EFF. I have no problem with EFF members raising points of order (as they were entitled to do by the rules). However, SONA is about more that Jacob Zuma – it’s about the President and Parliament as a constitutional entities. Continuing to raise points of order after the Speaker made her ruling to disallow it (which she was entitled to do in terms of the rules, even if she struggled to justify this) pushed the boundaries of what we should expect of our elected representatives.

That said, the security forces were authorised by the Speaker (whether validly or not) to remove Floyd Shivambu and Julius Malema from the chamber. As far as I am aware, they were not ordered to remove other EFF MPs from the chamber. These members cannot be collectively punished for what their leaders do (we do not live in Israel) so removing them (without explicit orders of the Speaker) must have been illegal unless somebody life was being threatened and section 4 of the Act would have kicked in.

These are the legal niceties. But there may be a broader point about the quality of our constitutional democracy and the manner in which people in power overreact to challenges to their authority, that come into play here.

If the Speaker had been a wiser person and had suspended proceedings and had said we only proceed once Julius and Floyd leaves the Chamber – all while South Africans waited impatiently for the SONA to proceed – the EFF antics would have started to irritate many voters. I am not sure most voters would continue to have sympathy for actions by MPs that go beyond what (at least arguably) could be justified by the rules of Parliament.

In the end, it is voters (and not the Speaker or security forces) who serve as the ultimate check on MPs and their behaviour. Where MPs realise they are losing the sympathy of the public, they will almost certainly moderate their behaviour (or am I far too optimistic about the level-headed nature of voters and MPs?). Placing more trust in the slow wheels of democracy and in the voters and less in the brutal exercise of militarised state power, would therefore, in my opinion, have been far wiser.

It will very seldom (if ever) be good for democracy to allow police officers to be deployed to suppress the speech of democratically elected members of Parliament. It matters not whether such members represent the majority of voters or a minority.

Yes, it would have been a bother. The President might have had to read his speech from a TV studio or we might have had to wait another 30 minutes for him to read the speech from the Assembly podium. But who said democracy is not sometimes a messy affair? The President is a politician used to the rough and tumble of politics, so surely it is not as if he would have been dealt a mortal blow if the EFF had been given more rope to hang themselves?

This is my initial view. But my view is perhaps less important than the views of the millions of voters who must decide who to vote for ion the upcoming local government and (eventually) national elections.

What do you think?

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