Opinionista Gushwell Brooks 23 June 2014

Let Malema speak – he has the right to

The National Assembly has never been as interesting as it has been during the past week. Never in the history of our Parliamentary history have we been so fixated and enthralled by the shenanigans of our lawmakers, who are giving some serious competition to some of SA’s cheesiest local soapies for viewership numbers – and drama.

Nonetheless, last week’s display gives rise to two questions: firstly, are we getting what we deserve in terms of of politicians that will determine the fate of this nation for at least the next five years. Secondly, is the lack of decorum worrisome, justifying the expulsion of some parliamentarians?

Decorum is important, of that there is no doubt. Parliamentarians need to be courteous in their exchanges, not just because it is a nice thing to do or because they will make their mothers proud, but because courtesy is essential to the decent exchange of ideas during debates. But the past week saw decorum fly out of the window, with parliamentarians not being as honourable as their titles would suggest.

Julius Malema and the rest of his colleagues occupying the EFF seats in the National Assembly have drawn a lot of attention to themselves. Apart from dressing up like scarlet working-class folk at the bottom of South Africa’s economic food chain, the very constituency they claim to represent, they also made a point of having their voices heard no matter who took to the podium. Their regular “points of correction”, interjections and chirping eventually led to Malema being asked to withdraw a statement he had made during a joint sitting of the legislature and when he refused, Thandi Modise, National Council of Provinces chairperson, asked him to leave.

Malema’s allegation that the ANC-led government had murdered miners in Marikana in August 2012 did not sit well with Modise and elicited her anger – and the fact that she was the Premier of the very province where 44 people lost their lives in August 2012 seemed to cut to the bone as well. It showed in her response to the EFF as they left, heckling her, calling her and the rest of the ANC “Murderers!” In an audibly angry tone she responded: “Yes, I was the premier!”

Now, sanction against the EFF and individual parliamentarians within the party is under consideration. Bickering over whether the DA’s Mmusi Maimane is a commodity or not, whether the FF Plus’ Pieter Mulder represents “white land thieves” or whether it is disrespectful to call Malema an “arrogant young man” might have worn some really powerful people’s patience, but should Parliamentarians be kicked out of the National Assembly because they say things we do not like?

Freedom of speech is at the core of the issue. It is one of those rights that have an interesting function within society; it forces us to tolerate what we might not like. Whereas equality and respect regardless of race or gender feels good and is innately the right thing to do, the right to respect people’s freedom of speech is a little different. Columns like these need to be protected under the right to freedom of speech, because we say things that people might not like, in particular very powerful people. Because someone needs to keep these powerful types in check, even if we just do it through annoying columns, that right needs to be protected. The same right applies to some of our least liked people, for example Steve Hofmeyr and Julius Malema.

Do Parliamentarians have the right to say whatever they like, whenever they like? Well, nobody has such an absolute right when it comes to freedom of speech, but Patricia De Lille, before she became Mayor of Cape Town and joined Hellen Zille in the DA, was a parliamentarian herself – and she said things that got many knickers in knots.

De Lille said something really inflammatory during a National Assembly debate on the 22 October 1997. She alleged that “agents . . . who received blood money to betray the genuine struggle of the African people” and “people who betrayed the soul of the nation” were occupying seats in Parliament. Her words eventually gave rise to the case of Speaker of National Assembly v De Lille MP and Another (297/98) [1999], after she, too, refused to withdraw what she had said.

The matter was first heard in the High Court and was then referred to the Supreme Court of Appeal, which found that Section 57.[3] of The Constitution provides that the National Assembly “may determine and control its internal arrangements, proceedings and procedures”; however, the authority of the National Assembly has its limits.

The greatest of these limits is that all-important right to freedom of speech. Section 58(1)(a) provides that Cabinet members and members of the National Assembly have freedom of speech in the Assembly and its committees, subject to its rules and orders. Lest it be noted that these rules and orders should be in place to ensure that proceedings in Parliament are not encumbered by obstruction or disruption.

Section 58(1)(b)(i) elaborates on this by making it clear that members are not liable to civil or criminal proceedings, arrest or imprisonment or damages “for anything they have said in, produced before or submitted to the Assembly or any of its committees”. The case goes on to set the essential test that would determine whether Malema and company were justifiably kicked out of Parliament. “The question, therefore, that needs to be determined is not whether the Assembly… had lawful authority to suspend the respondent from the Assembly as an orderly measure to protect proceedings of the Assembly from obstruction or disruption, but whether or not it had the authority to do so as a punishment or disciplinary measure for making a speech?”

In other words, was it okay to kick Malema out for saying something that hurt some people’s feelings as opposed to kicking Malema out for being disruptive? I doubt any court, in light of the Constitution, would see it from Modise’s perspective. It would be a stretch to convince any court that Malema and his cohorts were disruptive or obtrusive to the ordinary business of Parliament, which is supposed to be robust debate.

Is the EFF cutting to the bone; are they doing what they promised before the elections? Indeed, they have made Parliament an uncomfortable space, and perhaps it is about time that it is. After all, they and those who voted for them believe that twenty years of democracy has not dealt with important socio-economic issues of inequality and they will, at every opportunity, take the economic bull by the horns and ride it into the ground.

However, it would serve them well to deal with substantive matters on the table, rather than insisting on swinging the debate back to the issues they only they wish to discuss. Their failure or seeming unwillingness to address the issues on the table could turn them into the “class clown” rather than the voice of the disenfranchised.

In as much as they wish to swing the thinking in SA politics, the truth is that many different issues are debated in the National Assembly and the EFF’s core area of focus might not always resonate with what is under debate.

Is it for Modise or the Speaker or whoever else to pull the EFF back to the substantive debate, to deal with the real issues of politics here and now? Obviously not; more importantly, however, when people say things that are uncomfortable, when they make allegations about your liability for the deaths of your own citizens at your police service’s hands, as government, it is never a good idea to then suddenly kick them out of Parliament, all because decorum is suddenly so important. It makes the Parliamentary majority – the ruling party – look like a bunch of bullies, guys that use their authority to stifle criticism of their governance; worse yet, in doing so, they are flouting the Constitution – the very thing they should uphold. DM

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