Opinionista

SONA 2015: The fracas? Unnecessary. The facts? Surprising

Bo Mbindwane is a business executive with experience in mining and other sectors. He has past experience in public administration and is an indepedent mining analyst. On twitter: @mbindwane

The role of the Speaker is a challenging one, and in any analysis of what occurred on 12 February, it’s instructive to take a detailed and more searching look at the rules of Parliamentary exchange. In fact, if this had been given due diligence ahead of SONA, perhaps the entire dialogue would have taken a very different direction.

First blogged at http://wp.me/p3P4cu-eK 

The authority of the Chair (Speaker) is no greater than the House wants it to be. When the rules are clear and offer precise guidance to the Speaker, the authority of the Chair is absolute and unquestioned, for this is the will of the House. On the other hand, when there are no rules to fall back on, the Speaker must proceed very cautiously indeed. The most the Chair can do is to lay the matter before the House which can then itself create a new precedent. – Former Canadian House of Commons Speaker Jeanne Sauvé

 

The suggestion that democracy can somehow exist without elections reminded me that there is a fundamental principle at stake here—a basic choice. Do we believe that people should choose their representatives in Parliament, or do we not? Should citizens choose the people who make the laws of the land, or should they not? Every hon. Member must now decide which side of the argument they support. – Deputy Prime Minister Nick Clegg, during a debate in the House of Commons on Lords Reform (27 June 2011)

 

In countries like ours, the question of authority lies in the democratic principle of elections. The victors are expected to take authority in a manner subject to rules, laws and supreme laws of the land. The two quotes above are particularly relevant as these two Parliaments, the UK and Canada, are governed somewhat similarly to the South African Parliament, and they therefore set the scene of this discussion.

Address by the president

In South Africa, the president delivers a ‘Commencement of a New Parliament’ address after each election and annually, each February, delivers a ‘State of the Nation’ address (joint sitting). The president may also call either House or joint Houses for any other address he/she sees fit.

There is a specific format or strict sequence observed and to be followed (Rule 12) for the State of the Nation Address. Motions and Points of Order are not part of the sequence. There is no other business in the Order Paper (day’s programme).

Following these addresses, the party responses occur (debate). This is the opportunity for the parties to contribute advice, critiques, advance counsel, oppose, offer alternatives, place questions or make any statements they so elect. On 17 – 19 February 2015, at the National Assembly (not a joint sitting), the party leaders represented in Parliament with their members will be able to tell the nation and the president what they think of him, the party he comes from, his work and how they see him; they can pose questions to the president during their speeches and on the last day (19 February), the president is expected to address the pertinent issues so raised.

Rulings by the Speaker/Chair

The Speaker is governed by rules, convention and, as in courts, precedents are also applicable as a tool to use in management of the House procedures.

The Speaker’s ruling may not be debated during the proceedings of said ruling. Members may not enter into a debate with the Speaker; however, she may invite input and may change her ruling after hearing of any input that is relevant to the matter at hand.

There has been an abundance of petulant behaviour from the opposition benches in particular in this 5th Parliament. Mostly, they wish not to listen to rulings and believe themselves above the authority of the chair.

Members or parties may not appeal a ruling if unhappy or even if they believe the ruling is contrary to rules, convention or precedent. The rulings are final and an aggrieved party or member may take up grievances through Parliament processes after the sitting.

Only the matter of a ruling may be taken through to the Rules Committee and not the ruling itself, meaning the Speaker’s ruling remains valid in any event whether the aggrieved party likes it or not, and time/event reversal is not possible (Rule 30).

The Constitution and Rules of Procedure

The Constitution and specifically the PPP Act of 1963, amended in 1995 and 2004 to PPI Act accordingly, govern Parliament. Previous rulings (precedents), the rule book, joint rule book, convention and practice also are integral in governing Parliament.

Immediately, convention instructs that during the President’s Address, there is no other business. Practice too is authoritative on the matter. Likewise the Rules are plain on the chair rulings in any event. Rulings are final and no debate, arguing or disruption is permissible by anyone, including members or guests.

Rulings are based on what the presiding officer (chair or Speaker) deems.

On State of the Nation Addresses, the chair never asks for Notices of Motions.

No dialogue is expected to take place between the members and a person/member on the podium. Interjections must be reasonable and only proceeded with only after the chair recognises the Point of Order rule 45/46/47.

Cellular phones are to be switched off. Precedent rulings show Frene Ginwala ruling against reading of newspapers in the House – I suppose reading same in electronic tablet too. The Rules Committee did consider the use of laptops previously. (Rule 58).

This means it is unlikely that the jamming of cellular phone signal was legal. Guests may not use any electronics in the gallery (rule 58). Clearly, the press requires access to internet, so means should be made of having wire connection for the press bay, should jamming be necessary in future due to security matters arising.

EFF Strategy

Had the EFF elected not to use privilege but chosen to exploit rule 105, which allows members to make a statement, their approach may have worked to make their point clear and their question to president clear to all. This may have been the best and orderly strategy, which does not seem to be disruptive and petulant as they had promised to be.

When EFF members started rising one by one to repeat the same question, it is also clear that rule 38 was being violated. There can be no repeating of a question; the “same question rule” applies. (Rule 68/95).

Rising on Privilege as EFF’s Gardee did is permissible; however, privilege does not mean after having been given the privilege to raise whatever issue, your way must be observed. Privilege affords members the right and freedom to raise any matter of importance as they see fit. After raising same, the Speaker has powers to make a ruling, and such a ruling MUST be observed without debate, reservation or petulant arguments. A member may propose to escalate the matter raised to courts or inter Parliament forums or other, but proceedings must continue.

The Constitution (section 57) enables Parliament to make its own house rules, processes and procedures as long as accountability, participatory democracy, transparency and the involvement of the public is not compromised. Here it is important to make a point that delay is not lack of accountability, as the Speaker ruled that members can engage with the president from 17 February 2015 and also specifically on 11 March 2015 on any other matter not on Order Paper of 11 February 2015.

Forceful Ejection of Members from Chamber

The Speaker or chair may eject any member who contravenes rules or is disruptive (Rule 49-56). If such a member refuses to vacate the chamber, the Sergeant at Arms has to issue him/her with an official ejection order and negotiate same. Inter Parliament orderlies may be called to assist in the restraining of the said member; if bodily injury, violence or other threats are likely, the Speaker may call members of the “security services” to be employed immediately. The latter may watch and look but not act until the Speaker invokes PPI Act in particular.

Police, the army and secret service agency may be employed by the Speaker to perform duties to remove or do policing or security work inside the chamber and other areas of the Parliament precinct. (PPI Act).

When any presiding officer is talking, she must be heard in complete silence until she has finished talking (Rule 54).

Grave disorders are at times expected – if they occur, the chair may use rule 55/6 to adjourn proceedings as did occur before.

“Members have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents.” (From the Code of Conduct for Members of Parliament adopted by Resolution of the British House of Commons.)

What is the Meaning of a Police State?

?A police state is that which has police controlling who can be an MP or politician, monitor speech, follow people, arrest people without charges, intimidate politicians, control Parliament and laws, tapping of politicians devices and subject political process to heavy handed policing through decisions of the police generals only.

Parliament is governed by the Powers, Privileges and Immunity Act of 2004 (amendment of 1963 (repealed), 1995 Acts) Gazette No. 26435, Notice No. 699, dated 7 June 2004. Commencement date: 7 June 2004). (PPI ACT)

The PPI Act derives its authority from the Constitution of the Republic of South Africa, 1996, which sets out certain powers, privileges and immunities of Parliament and provincial legislatures and their members; Sections 58(2), 71(2) and 117(2) of the Constitution provide that other privileges and immunities of the respective legislatures and their members may be prescribed by national legislation.

First I want to discuss the relevant definitions in PPI Act so that the context is lucid.

“Parliament” means the National Assembly and the National Council of Provinces; ?“Precincts”, means the precincts of Parliament referred to in section 2 of PPI Act; “security services” means the security services referred to in section 199 of the Constitution;

The PPI Act should be read carefully as to what section 2 describes as Parliament precinct.

CHAPTER 2

PRECINCTS OF PARLIAMENT

2.?Description of precincts of Parliament

(1)? The precincts of Parliament is the area of land and every building or part of a building under Parliament’s control, including –

(a) ?the chambers in which the proceedings of the Houses are conducted and the galleries and lobbies of the chambers;

(b)? every part of the buildings in which the chambers are situated, and every forecourt, yard, garden, enclosure or open space appurtenant thereto;

(c) ?committee rooms and other meeting places provided or used primarily for Parliament’s purposes; and

(d)? every other building or part of a building provided or used in connection with the proceedings of Parliament, while so used.

(2)? In so far as it may be necessary for the achievement of the objects of this Act in a case where a House or committee convenes beyond the seat of Parliament, this Act applies as if the premises where the House or committee is sitting were within the precincts of Parliament.

3.? Control over precincts of Parliament

The Speaker and the Chairperson, subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.”

Clearly, the chamber, offices, committee rooms, including rooms that may be outside Parliament surrounds may be declared Parliament precinct for as long as Parliament business is taking place.

Earlier I posed a question of whether police, the army or intelligence services may enter Parliament, perform policing duties etc. The PPI Act reads:

“4.?Presence of security services in precincts of Parliament

(1)? Members of the security services may –

(a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or

(b)? perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.

(2) ?When there is immediate danger to the life or safety of any person or damage to any property, members of the security services may without obtaining such permission enter upon and take action in the precincts in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the Speaker and the Chairperson.”

The Constitution describes security services as South African police, the national army and intelligence services, Section 199 (1).

It is very curious as to why the leader of the Official Opposition would rise on a Point of Order asking whether there were armed police inside the chamber – “it’s important because tomorrow it may be the army that is called”. He then demanded to be answered, threatening that if he were not, he would litigate and proceeded to lead his party’s walk-out from the proceedings in protest of the likely use of police, as had clearly occurred on 11 February 2015 after the Speaker elevated her rulings and orders from Sergeant at Arms, to official Parliament security and later invoked the “security services” in terms of PPI Act after the party Members of the two members being ejected used their red hard hats to assault the Parliament security.

In today’s Twitter exchange, many argued that the PPI Act did not mean MPs but “persons” other than MPs. This they read with the Police Services Act section 205, that prohibits policing by police in the precinct of Parliament.

However, this prohibition is in support of separation of powers doctrine, and does not suspend policing work inside the precinct of Parliament should the Speaker so invite. This is why police protect Parliament, they operate the exits and entrances, they patrol inside Parliament and accompany VIPs inside the precinct in close contact. Similarly the Secret Services do Parliament assignments to protect Parliament from attacks be they violence or cyber-related.

The intention and spirit of the laws are to make sure the police can only act upon invitation by heads of Parliament.

The Police Act aims to complement the PPI Act in that police cannot investigate crimes inside Parliament without approval of the Speaker; they cannot arrest any individual inside Parliament and may not serve court orders or warrants of arrest without this specific permission from the Speaker. All these are referred to as “policing functions”. They do not remove or disallow the use of police by or within Parliament. Examples have been made earlier.

The Speaker carefully laid out her case as to why she would not allow a question session. Had she allowed a question from one political party, all other political parties would have been owed a right to ask any question too. This would then filibuster a presidential special session attended and watched by the world, our young and old. Come midnight, Parliament could still be dealing with questions. Accordingly, the only ruling to be made was the prudent “NO!”

In summary:

  1. From convention to precedent alone, the Speaker was within her rights to rule as she did.
  2. From rules perspective, where a rule doesn’t exist, the Speaker is still within her right to rule as she deems fit.
  3. The rules the Speaker relied upon are valid and authoritative.
  4. Cooperative governance requires that all organs of state respect each other and act according to decorum.

The Speaker’s Composure 

The careful and deliberate level of reaction by the Speaker is to be noted.

  1. At first she requested members to take their seats; instead, the entire EFF caucus stood up except one.
  2. She then moved to rule that one MP, namely Floyd Shivambu, should vacate the chamber. Then she included another.
  3. She requested the Sergeant at Arms to enable same; Sergeant went to issue the official order which was not adhered to.
  4. The Speaker then instructed Parliament’s own civil security orderlies to assist with escorting the Members out of the chamber; the entire EFF caucus was seen assaulting the security orderlies with helmets.
  5. The Speaker, seeing the fracas and assault on the mildly trained staffers, instructed and invoked the PPI Act’s applicable sections that authorises the use of the country’s security services, as indeed the chaos was likely to endanger persons – let alone that her rulings were ignored and militantly fought against by EFF caucus.

It is also important to complete this discussion by noting that armed personnel in democratic Parliaments are not unusual or bizarre. In fact, most Sergeants at Arms are armed, as recently illustrated in the Canadian Parliament terror attack by Michael Zehaf-Bibeau inside the Parliament precinct. Members of Parliament rose to their feet in applause for Sergeant at Arms Kevin Vickers, who put aside his ceremonial duties to draw a firearm and take down 32-year-old Zehaf-Bibeau last year.

The notion that an “armed” policeman may not enter Parliament is found wanting and rather frivolous. It also places democracy itself in danger, as petulant and dangerous members may cripple the Houses from their democratic service. DM

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