ConCourt rules: Thou Shalt Not Remove or Arrest an Honourable Member

The Constitutional Court judgement comes in the wake of political machinations in Parliament, focused on what it terms restoring the decorum of the House through Rule53A by evicting MPs with “such force as may be reasonably necessary” and beefing up its parliamentary protection services with SAPS members, dating back to mid-2015.

The parliamentary administration wanted to second police officials into its protection services, but had to hire them instead at days’ notice just when secondment, after it bizarrely had found its way back to the draft rule for a second time, was finally nixed by opposition parties before Rule53A was adopted on 30 July 2015.

Just days later on 5 August, Speaker Baleka Mbete announced in a letter to political party leaders that “personnel has been recruited from the SAPS”. This was possible due to the 24-notice period permitted under the SAPS Act with agreement from top brass.

The manoeuvres came after a series of bruising sittings, which on two occasions saw police in the House - in black body armour on 13 November 2014 to evict an Economic Freedom Fighters (EFF) MP and dressed as waiters at the 2015 State of the Nation Address (SONA).

Police stopped just short of the doors of the House in August 2014 when the EFF “Pay back the money” chant scuppered presidential question.

However, delivering the majority Con Court ruling Judge Mbuyiseli Madlanga made it clear that Rule53A on evicting MPs, or any other rule, was outside of the judgment: “I am not pronouncing on the constitutional validity of the rules insofar as they permit forcible removals from the chamber. That is a matter for another day”.

And perhaps for this reason the ANC in Parliament described the judgement as “essentially academic”, while the DA, which brought the legal action, welcomed it as “a victory for democracy and accountability”. The national legislature in a statement signed off by “legal advisor” Advocate Johnny de Lange highlighted that the court agreed free speech could not be a “license so to disrupt the proceedings…” and that the national legislature could draft its own rules.

Of course, in one of two paragraphs cited by De Lange (once a deputy minister, committee chairperson and the ANC MP who in 1998 floored a National Party MP in the House), the Constitutional Court also found the rules and orders limiting parliamentary free speech should be “within bounds that do not denude the privilege of its essential content”.

The Constitutional Court made it clear free speech in the House was “at the centre” of proceedings. The freedom to speak was enshrined in Sections 58 and 71 of the Constitution which prevent any parliamentarian from being held liable in civil or criminal proceedings, arrested, imprisoned or sued for damages for anything they say, produce or submit in the House or parliamentary committees.

It was the duty of all three arms of the state to safeguard South Africa’s hard fought for democracy. And for Parliament, the court said, that meant giving true meaning to the multi-party parliamentary system.

“It must not start and end with the election to Parliament of the various political parties. Each party and each member of Parliament have a right to full and meaningful participation in and contribution to the parliamentary process and decision-making,” said the Constitutional Court.

“Debate is key to the performance of its (Parliament’s) functions. For deliberation to be meaningful, and members effectively to carry out those functions, it is necessary for debate not to be stifled. Unless all enjoy the right to full and meaningful contribution, the very notion of constitutional democracy is warped.”

As Parliament was by its nature deliberative, “it cannot be all conduct that annoys and tests the patience of the presiding officer and some in Parliament that amounts to interference or disruption,” the court said. “Robustness, heatedness and standing one’s ground is inherent in the nature of parliamentary debate… In the heat of a debate one must expect that - from time to time - a member’s contributions will not come to a screeching, mechanical halt once the presiding officer has ruled that the member desist from further debate on a subject.”

And Parliament needed to be able to do its “onerous” task of overseeing the executive, which exercises control over the police and defense force. “Needless to say, for Parliament properly to exercise its oversight function over the executive, it must operate in an environment that guarantees members freedom from arrest, detention, prosecution or harassment of whatever nature. Absent this freedom, Parliament may be cowed, with the result that oversight over the Executive may be illusory.”

In this context the court declared unconstitutional Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act as arrest was possible for creating or participating in a disturbance, broadly defined as any act that could or is likely to interfere or disrupt proceedings.

“The spectre of not only an arrest, but everything that may follow it, is real…” said the Constitutional Court, dismissing Parliament’s argument it merely wanted to leave MPs “on the pavement” for the prosecuting authorities to decide what, if anything, should be done.

“That is cold comfort. The reality is that a criminal offence exists. And Section 11 provides that a member may be arrested for it. There is no reason for members not to believe that detention and prosecution may follow. This chilling effect alone constitutes an infringement of parliamentary free speech.”

The court ruled Section 11 must be amended to make it clear that MPs are excluded, although it may still apply to anyone else.

The Constitutional Court, as judges do, delivered a judgement on the basis of legal arguments removed from daily politicking in an institution. As is the judiciary’s preferred method, the judges give those in another sphere of state the leeway to fix what is broken in their own backyard.

But the Constitutional Court judgement comes amid continuing claims by opposition parties that presiding officers are biased and unfair in their rulings, selective in hearing the jibes from the governing ANC parliamentary benches and inconsistent in cracking down on unparliamentary language or (dis)allowing points of order.

The removal of an MP under Rule53A depends on Rule51, which sets out the grounds for removal if, in the “opinion” of the presiding officer, an MP disregards the presiding officer’s authority, deliberately contravenes rules or behave in a “grossly disorderly” manner. The rule has been invoked on several occasions to order, particularly EFF MPs out of the House.

Parliament may want to take heed of the Constructional Court’s statements on MPs’ right to free speech, rather than cherry-picking those statements it supports or, for that matter, the application of the rules. Otherwise it may yet face another challenge. DM

Photo: Leader of the Economic Freedom Fighters (EFF) Julius Malema (C) clashes with members of South African security forces after being ordered out of the National Assembly by the speaker of parliament during the State Of the Nation Address in Cape Town, South Africa, 12 February 2015. The State of the Nation address was disrupted by the EFF resulting in the party being ordered out of the chamber by security forces. EPA/RODGER BOSCH/POOL