Three tries, three misses – Madam Speaker should be out

Speaker Baleka Mbete. (David Harrison, M&G)

Speaker Baleka Mbete. (David Harrison, M&G)

If the speaker of the National Assembly were a football team, she would have a set a record over the present season: played three, lost three. The team might be looking for a new manager.

The latest defeat took place when the Democratic Alliance (DA) won its application against the speaker on the removal of MPs from the assembly. This was during the president’s State of the Nation address in February this year, when members of the Economic Freedom Fighters were forcibly removed by police.

They had sought clarity from the president about the Nkandla expenditure, and persisted with their interjections until the speaker told them to leave the chamber.
When the EFF members refused to do so, unidentified members of the police were called into the chamber to remove these EFF members by force.

The speaker had summoned the police into the sanctity of Parliament on the basis of section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, which provides that “a person who creates or takes part in any disturbance in the precincts while Parliament … is meeting may be arrested and removed from the precincts on the order of the speaker … by a staff member or a member of the security forces”.

In its case, the DA argued that this provision did not apply to MPs and, if it did, it was unconstitutional, in that section 58 of the Constitution exempts MPs from civil and criminal proceedings, arrest or imprisonment or damages for anything they say in or submit to the assembly or any of its committees. In support of its argument, the DA contended that to allow the speaker to call the police or the army to arrest and remove MPs from the house, and thus to allow representatives of the executive to exercise its powers in Parliament, would constitute a fundamental breach of the doctrine of separation of powers.

By contrast, the speaker argued the word “person”, as employed in section 11, must be taken to include an MP. Thus the law intended that, if a member of Parliament subverted the authority of the speaker and made it well nigh impossible for Parliament to carry out its mandate, the speaker was empowered to call for the assistance of the security forces to restore that authority.

Judge Andre le Grange, on behalf of a full Bench of the Western Cape High Court, accepted that section 11 admitted both interpretations, and that “person” could be understood to include an MP. But his problem was with another word in the section: “disturbance”. The word was so broad that the robust exercise of the right of an MP to free speech could fall within the ambit of section 11. This would clearly violate the constitutional guarantee that all members have to speak freely in the House, for in this reading the section would “allow a member to be arrested not only for disruptive conduct but also for what a member may have said which may ultimately amount to disruptive conduct”.

Furthermore, said the judge, Parliament’s rules allow members to be disciplined, including being ordered to leave the house; nowhere do they provide that force be used to protect orderly proceedings.

The court thus declared section 11 unconstitutional, in that the powers therein could be used against members who were conducting themselves in a very demonstrative way. One only has to watch question time in the British Parliament to realise that, in the speaker’s interpretation of section 11, security forces could use the section to stifle raucous debate and hence eviscerate the right of opposition members to speak their minds, even if to the profound irritation of members of the ruling party.

For these reasons, the court found that section 11, as currently worded, cannot constitutionally permit the arrest of an MP. This is a brave decision. The facts of this case show that members of the EFF were intent on disrupting a key event in the life of Parliament, the president’s State of the Nation address, placing the speaker in a difficult position – the possible adjournment of proceedings, or calling security.

The court did not have to deal with this issue; its finding was based on a section of an Act being unjustifiably broad because it illegally curtailed free speech in Parliament. In so finding, the court, as in the other two cases lost by the speaker, showed a far greater commitment to free speech than had the speaker.

And, as for the possible adjournment of Parliamentary proceedings, ironically that is exactly what the ANC in the Western Cape legislature had compelled the speaker there to do a few days earlier.

Serjeant at the Bar

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