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Mfeketo and Zuma: You scratch my back, I’ll scratch yours?


Pierre de Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he is head of the Department of Public Law. He writes a blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Deputy Speaker of the National Assembly, Nomaindia Mfeketo, is either incapable of grasping the meaning of some rather clear and unambiguous rules of Parliament, or she is deliberately abusing her position as Deputy Speaker and flouting the Constitution and the rules of the National Assembly in order to protect President Jacob Zuma from criticism by opposition party members.

Yesterday she ordered Cope leader Mosiuoa Lekota to withdraw statements he had made earlier which called for Zuma to be impeached. Among other things, Lekota had said that Zuma’s office had “defied an order by the SCA to hand over the abbreviated transcripts of the tapes that permitted criminal charges to be dropped or withdrawn against himself”. Lekota said Zuma was bound by his oath of office to obey, respect and uphold the Constitution. 

Mfeketo ordered Lekota to leave the National Assembly after refusing to withdraw statements about Zuma. Mfeketo justified her ruling by saying that Lekota should have brought his allegations to the Assembly by way of a substantive motion, and ruled his statements “unparliamentary’.

Her ruling and the reasons given for it are legally embarrassing, undermine Parliament and flout the Constitution. 

Section 58 of the Constitution explicitly safeguards the rights of members of the National Assembly to freedom of speech in the Assembly and in its committees, subject only to the rules and orders of the Assembly. In terms of this section, MP’s are also not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said in, produced before or submitted to the Assembly or any of its committees.

The purpose of this provision is to protect members of Parliament against censorship by the majority party and to create a free space within which elected representatives can criticise and attack each other. In order to allow robust debate to flourish in Parliament, MPs can say what they want in Parliament – even if they cannot prove that their claims or allegations are true and even if what they say defames somebody else.

It is true that rule 51 of the National Assembly allows the Speaker or Deputy Speaker to order an MP to leave the chamber if he or she is of the opinion that there was a “deliberate contravention” of a provision of the Assembly Rules or when an MPs conduct is “grossly disorderly”. But the Speaker or Deputy Speaker cannot request nor demand that an MP retracts a statement because it is debatable whether the statement is true or because it defames somebody.

It is inconceivable that any person of even average intelligence would be able to conclude in all honesty that any of the rules of Parliament are breached when an MP accuses the President of being in contempt of court. There are two Assembly rules that could possibly be relevant here, but neither one applies to Lekota’s case. 

Rule 63 prohibits any MP form using “offensive or unbecoming language”. Using a racist slur, swearing, or using crude or lewd words may well fall within the ambit of this rule. The rule obviously does not regulate the substance of a statement made by an MP, and does not prohibit harsh criticism and even defamatory statements made by an MP – whether such claims are true or not. The rule rather targets the kind of the words used by the MP in order to preserve the dignity (if any) of the Parliament. In other words, the Constitution (read with rule 63) allows MPs to make defamatory and even patently untrue statements in Parliament – as long as they do so relatively politely. 

Thus an MP is allowed to call other MPs Apartheid spies (as the De Lille case confirmed), to allege that other MPs or members of the government are corrupt, that they lack a work ethic or are dishonest. If MPs were not allowed to do so, MPs would cease to enjoy the Constitutionally guaranteed right of freedom of expression and one of the basic privileges of elected representatives in modern democracies would have been extinguished. 

When Lekota charged that Zuma defied an order of the SCA and called for the President’s impeachment, he could not possibly have been in breach of rule 63 of the National Assembly. Lekota’s statement was not, technically speaking, true. Zuma was not ordered by the court to hand over the tapes – the NPA was ordered to do so. (Zuma could, of course, have ordered his lawyer to hand over the tapes, and the fact that he did not might suggest that he has limited respect for the judiciary.) 

Be that as it may, the Constitution and the rules of the Assembly protect Lekota’s right to make an untrue statement as long as he does not do so in offensive or unbecoming language. A Deputy Speaker is not allowed to ignore the rules of Parliament because a member of that Parliament had made a statement that might not, technically speaking, be true. To hold otherwise would flout the Rule of Law.

One might reasonably disagree with Lekota’s statement or with his tactics, but that is an entirely different question from whether the Deputy Speaker was allowed to abuse her power to silence him and protect Zuma. Rules do not only apply to those with whom one agrees. They also apply to those with whom one disagrees – at least if one is a democrat that respects the Rule of Law and if one does not support the flouting of the law when it benefits one’s own cause.  

Rule 66 of the National Assembly does prohibit MPs from reflecting on the honour of certain categories of persons – except in a substantive notion. However, the section explicitly excludes members of the government from its ambit, stating clearly that:

“No member shall reflect upon the competence or honour of a judge of a superior court, or of the holder of an office (other than a member of the Government) whose removal from such office is dependent upon a decision of this House, except upon a substantive motion in this House alleging facts which, if true, would in the opinion of the Speaker prima facie warrant such a decision.”

The President heads the government and, as Section 91(5) makes absolutely clear, is in charge of executing the functions of government. This means that rule 66 explicitly and clearly excludes the President from its application.

The purpose of the rule is clear: it is aimed at protecting judges and other non-political office holders from scurrilous attacks by MPs. The rule thus safeguards the integrity and independence of judges and other non-political office holders. It does not protect politicians from criticism or attack. If the president could not be criticised or attacked in the National Assembly except by way of a substantive motion, he would enjoy the kind of protection that no politician in a functioning state deserves to enjoy. 

Not only is Mfeketo’s reliance on this rule patently wrong, it is also dangerous. It curtails the ability of MPs to do their job as elected representatives and it undermines Parliament. No one sitting in the Speaker’s chair or who respects the will of the people could hold otherwise.

Surely, her position as Deputy Speaker has become untenable. If President Zuma and the ANC he leads truly respect Parliament as an institution, they would support the immediate removal of Mfeketo as Deputy Speaker. 

But this is not going to happen. After all, Mfeketo ignored the rules to protect the Big Man. And for some, that is all that counts. DM