Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

1 June 2016

An end to robust and even rude debate in parliament?

As the only national representative body elected by voters, the National Assembly (NA) is supposed to be the one place where elected representatives can engage in robust, even rude, and no-holds-barred debates. But because of the often biased rulings of presiding officers and stifling new rules recently adopted by ANC MPs, political debate outside the NA is currently less restricted than inside the chamber. No wonder the presiding officers of parliament have in recent years been losing one court case after the other.

British MPs are well known for the withering insults hurled at political opponents in the House of Commons. In the 1980s, Labour MP Tony Banks said Margaret Thatcher was acting “with the sensitivity of a sex-starved boa-constrictor”. Many years earlier Winston Churchill said of Lloyd George, “He would make a drum out of the skin of his own mother in order to sound his own praises.” And Harold Wilson famously said of Conservative Prime Minister Edward Heath: “A shiver looking for a spine to run up.”

The insults hurled by South African MPs across the floor of the NA seldom rise above the dull juvenility associated with primary schoolboys. But when MPs do engage each other across the floor and raise serious (even life and death) matters – as Economic Freedom Fighters (EFF) leader Julius Malema did when he accused the ANC in 2014 of massacring 34 miners at Marikana – presiding officers often step in to snuff out debate and to protect the governing party and the government it leads from robust criticism.

Section 58(1)(a) of the Constitution guarantees for all MPs in the NA the right to freedom of speech “subject to its rules and orders”. (Members of the NCOP enjoys the same right in terms of section 71(1)(a).) This means that a presiding officer is not permitted to censor the speech of an MP unless he or she is explicitly permitted to do so by the constitutionally valid “rules or orders” of the NA or the NCOP.

In the past, presiding officers often censured statements made by MPs in the parliament on the ground that a statement by an MP is “unparliamentary”. This is what the Chairperson of the NCOP did when she ruled that the statement made by Julius Malema was “unparliamentary” and had to be withdrawn.

But until last week such rulings were unlawful as there was no rule or order prohibiting MPs from making “unparliamentary” statements. When presiding officers ruled a statement out of order on the ground that it was “unparliamentary” that presiding officer was invoking a tradition of the British parliament. In other words, the presiding officer was relying on a concept imported from the parliament of the colonial master – without having any legal authority to do so.

It is therefore not surprising that the Supreme Court of Appeal (SCA) recently ruled in Chairperson of the Nation Council of Provinces v Malema that the presiding officers’ ruling that Malema’s statements were “unparliamentary” and did not accord “with the decorum of this House” was unlawful and invalid. Her decision to order Mr Malema to withdraw his statement that the ANC government had massacred the mineworkers at Marikana was also declared invalid, as was her order for Malema to leave the House.

A unanimous bench of 5 judges of the SCA held that freedom of speech “is a privilege essential to every free council or legislature”. The Court reminded the presiding officers of parliament that:

Freedom of speech and debates in Parliament are matters of the highest constitutional importance. Parliament, by its very nature, functions through a deliberative process. Debate is key to the performance of its functions. That process can only be meaningful if members are afforded sufficient room to freely express themselves.

The SCA did not touch on the obvious problem that the presiding officer was not permitted by the “rules and orders” of the NA or the NCOP to rule any speech out of order on the basis that the speech was “unparliamentary”. The SCA assumed that the ruling was made pursuant to an existing standing order (until last week never formalised through incorporation into the rules) which prohibits MPs from imputing improper motives to other MPs, or to cast personal reflections on the integrity of MPs, without bringing a substantive motion in that regard.

The SCA argued that the purpose of the standing order was to ensure that parliamentary debates are not clouded by personal insults. It drew a distinction between ad hominem attacks and political speech, pointing out that the former do not contribute to democratic discourse and are therefore not protected.

Of course, whether it is always possible to distinguish between insults and political speech is highly debatable. A clever debater will be able to summarise an important political point through the formulation of a biting insult. When Harold Wilson said of Edward Heath that he was “a shiver looking for a spine to run up”, he was making an important political point about Heath’s perceived lack of backbone and principles.

As the SCA itself pointed out, quoting from the Constitutional Court judgment in Democratic Alliance v African National Congress:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is not a bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.

The Constitution guards parliament’s role as an incubator of political speech. There is therefore nothing wrong with using robust or emotive language in parliament.

In any event, the SCA found that the interpretation of the standing order by the presiding officer constituted an impermissible infringement on the right to free speech of MPs. The Chairman of the NCOP had argued that by saying the ANC (or the ANC government) caused the massacre of 34 miners at Marikana, Mr Malema had imputed improper motives to all ANC MPs or cast personal reflections on their integrity. She did so by reasoning that the government is “largely comprised of Members of Parliament” and so criticism of “the government” should be understood as criticism against “a large component of Members of Parliament”.

As the SCA pointed out “it is absurd to link ‘the ANC’ and ‘the ANC government’ to ANC parliamentarians”. The Chairperson’s interpretation of the standing order could therefore not withstand constitutional scrutiny.

The implication of that interpretation is that any criticism made against the government is also criticism against individual Members of Parliament who are members of the ANC (or at least the national executive). It means that Members of Parliament may no longer freely accuse the government of any improper conduct. On the Chairperson’s interpretation of the standing order, criticism of government would always constitute criticism of Members of Parliament (and/or the Executive). Such an interpretation serves censorship, not free expression.

In a crucial respect the SCA judgment went further than merely ruling on the interpretation of this standing order. It found that even if Mr Malema’s words targeted MPs, the words were protected by section 58(1) of the Constitution. It held that while parliament may be empowered to make rules, its rules must be interpreted in conformity with the crucial guarantee of freedom of speech in parliament afforded by s 58(1) of the Constitution. That right is a necessary incident of representative government in a democratic society.

The SCA thus held that even if Mr Malema had directed criticism at MPs, the standing order still did not find application:

because his words were constitutionally protected political speech. He engaged in robust criticism of government conduct. His words fell in the heartland of political speech, and were therefore protected by section 58(1) of the Constitution. For democracy to flourish, free speech cannot be stifled. Free speech, in parliament, lies at the heart of parliamentary processes. The standing orders cannot be interpreted so as to nullify free speech.

The SCA judgment casts doubt on the constitutionality of several new rules adopted by ANC MPs last week. The new rules are largely aimed at neutralising disruptions by the EFF. This is not, in itself, constitutionally problematic.

In a recent judgment of Democratic Alliance v Speaker of the National Assembly the Constitutional Court affirmed that the free speech privileges contained in the Constitution “can never go so far as to give members a licence so to disrupt the proceedings of Parliament that it may be hamstrung and incapacitated from conducting its business”.

But the new rules of the NA do not only target disruptive behaviour but also forms of speech which are almost certainly protected by the Constitution.

Thus rule 63 prohibits MPs from using “offensive, abusive, insulting, disrespectful, unbecoming or unparliamentary words or language” and “offensive, unbecoming or threatening gestures”.

The Constitutional Court has held in the past that it was unconstitutional to grant an open-ended and vague discretion that authorises decision-maker to curtail protected rights. Given the fact that in the past presiding officers have used the vague and open-ended term of “unparliamentary speech” to shut down criticism of the governing party and its leaders on contravention of the Constitution, I would not be surprised if this rule is therefore declared unconstitutional.

Rule 64A which prohibits MPs from reflecting “in a disrespectful manner on the House or its forums and committees or on their proceedings and decisions” is probably also too wide and open-ended (and hence unconstitutional) as it will almost certainly be abused by presiding officers to try and shut down any criticism of their own behaviour.

Rule 67 prohibits MPs from reflecting “on the merits of any matter on which a judicial decision in a court of law is pending”. As the so called sub judice rule has in effect been abolished by our courts, this means that MPs have less freedom of expression inside the House than any of us have outside the house, which seems to infringe on their right to free expression in an impermissible manner.

(The fact that the sub judice “rule” is also one of the “rules” most abused by politicians who wish to avoid answering difficult questions, cast further doubt on the constitutionality of this rule.)

Rule 70 now sets out strict requirements for the raising of points of order and bestows absolute power on presiding officers to rule on such points of order and to stop MPs from continuing to raise such points of order. The rule is so sweeping in scope that I would not be surprised if it is declared unconstitutional if challenged before a court of law.

If it were to be followed to the letter, the new rule 17A(4) would somewhat lessen the harsh effects of these rules on freedom of expression in the House. This is because, for the first time, the rules now state that “[t]he Speaker must act fairly and impartially and apply the Rules with due regard to ensuring the participation of members of all parties in a manner consistent with democracy”.

However, as the SCA judgment in Chairperson of the Nation Council of Provinces v Malema demonstrated, this will require a radical change in attitude from presiding officers. Given that they themselves are empowered to decide how to interpret and apply the rules and now have almost unlimited power to shut MPs down who complain that they are not adhering to rule 17A(4), it is not clear that this rule will have the desired effect.

If the presiding officers in the NA bother to acquaint themselves with the new rules, they will have a powerful tool with which to try and shut down the EFF. But in the process, they will almost certainly also further curtail free expression in parliament, thus robbing many voters of the right to be represented in parliament in a robust and effective manner.