In the no confidence debate in the National Assembly this week, ANC Chairperson Baleka Mbete, who sometimes also moonlights as Speaker, ruled that it was “unparliamentary” to call President Jacob Zuma a “thief”. At present there is no Parliamentary rule, nor any standing order or resolution, which prohibits or regulates “unparliamentary” statements made by an MP. The Speaker therefore had no legal authority to make the ruling and her ruling was unlawful.
In a recent judgment, the Constitutional Court reminded us (if we needed reminding) that “[p]olitical life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious”. But, said the court, “[t]hat is no 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”.
Such vigorous discussion will often be rude and aggressive and politicians who do not like being insulted should probably get another job. There is no place for the fainthearted in our political discourse.
In its judgment the Constitutional Court found that a text message sent by the Democratic Alliance before the previous election stating that “[t]he Nkandla report shows how Zuma stole your money to build his R246m home…” expressed an opinion that did not contravene the relevant provisions of the Electoral Act.
The judgment did not find that the claim that President Jacob Zuma is a thief was true. It is therefore not clear whether President Zuma would be able successfully to sue for defamation if he is called a thief outside Parliament. (The Constitution protects MPs from being sued for defamatory statements they make inside Parliament or in any of its committees.)
The Speaker was therefore correct to rule that the judgment did not speak directly to whether an MP can call the president a thief in Parliament. (However, to the extent that the Speaker suggested Parliament was not bound by applicable Constitutional Court judgments, she was obviously talking dangerous nonsense.)
What had to be determined was whether the rules of Parliament prohibited an MP from calling the president a thief because such a statement would be “unparliamentary”.
Neither the rules of the National Assembly nor the standing orders prohibit an MP from making prima facie defamatory statements about any individual who is not a member of the Assembly. The president is not a member of the Assembly (he ceases being a member of the Assembly when elected president) and for the purposes of this discussion is no different from any other ordinary member of the public. Even if there were a rule that prohibited an MP from calling another MP a thief (there is no such general rule), it would not apply to the president.
Section 58 of the Constitution states that Cabinet members, deputy ministers and members of the National Assembly have freedom of speech in the Assembly and in its committees, subject to its rules and orders. This means that MPs can say anything about somebody in Parliament unless constitutionally valid rules or orders of the Assembly regulate or prohibit such speech.
There is no rule that prohibits “unparliamentary” speech by an MP and so no rule that prohibits an MP from calling the president (or anyone else – including you and me) a thief. Strangely, a “practice” has developed according to which the Speaker forces MPs to withdraw “unparliamentary” statements. As there is no fixed definition of what constitutes “unparliamentary” statements, this illegal practice grants the Speaker unfettered discretion to censor any statement by an MP she does not approve of.
But the Constitution does not allow a Speaker to limit the freedom of speech of MPs unless he or she is authorised to do so by the rules or orders of Parliament. This means every time the Speaker rules that certain speech by an MP is “unparliamentary” and must be withdrawn, the speaker is unconstitutionally limiting the freedom of speech of MPs as she is invoking a “practice” that has absolutely no legal standing.
Now, the rules of Parliament could be amended in order to add a rule that would allow the Speaker to rule “unparliamentary” statements impermissible. It will depend on the content of the rule (especially whether it was formulated with sufficient precision) whether it would pass constitutional muster. Parliament could also adopt a standing order to this effect. Again, the standing order would need to comply with the Constitution. But none of these options have been followed.
This means there is no legal authority for the Speaker to rule on “unparliamentary” statements of MPs. When she rules speech “unparliamentary” she has the same legal authority to do so as, say, the legal authority I have to order South African troops to invade Lesotho. It’s a dangerous and anti-democratic nonsense inherited from the colonial Parliament. It is beyond me why the MPs of all political parties have thus far gone along with this flagrantly illegal limitation on their rights to free speech.
Now, one argument to counter this view would be that the Speaker retains a general discretion to make up rules and to invent “practices” that limit free speech. Such an argument would probably rely on Rule 2, which grants the Speaker the authority to rule on “any eventuality for which these Rules do not provide”.
But this rule is not applicable to limitations on what can and cannot be said in Parliament because the rules of the National Assembly already contain extensive provisions on the regulation of speech in the National Assembly. As the rules already provide for the limitation and regulation of free speech to retain order and decorum in the House, the Speaker is not authorised by Rule 2 to make up new rules or to invent new practices to limit free speech merely because the colonial masters in London may have applied a similar “practice” or “rule”.
If the rules were read differently, it would lead to absurd results as it would allow the Speaker to make any rule limiting the freedom of speech of MPs, including a general rule that no opposition MP is allowed to ever say anything in Parliament. As Rule 2 does not apply, this means the Speaker cannot invoke the nonsense of “unparliamentary speech” because there is no rule or order that allows her to do so.
How do the actual rules and orders of the National Assembly limit free speech at present and why is it that these existing rules do not usually apply to statements made by MPs about the president (or about any other non-MPs)?
Rule 46 of the National Assembly prohibits MPs from talking aloud during a debate while Rule 47 prohibits an MP from interrupting “another member whilst speaking, except to call attention to a point of order or a question of privilege”. Rule 50 further regulates speech by stating that the Speaker “after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech”.
Rule 61 prohibits any MP (including the Speaker!) from referring to any other MP by his or her first name or names only (which is why MPs often call each other honourable member – something which, I am ashamed to say, often makes me snigger like a naughty schoolgirl).
Rule 63 prohibits an MP from using “offensive or unbecoming language” in a debate. Rule 63 does not refer to the content of the speech but rather to the form the speech takes. Calling somebody a thief or a liar or alleging that a tenderpreneur has cheated the state out of millions of Rand would not be covered by this rule, but calling a person a “little shit” or a “fuckwit” or some such offensive term would obviously contravene rule 63.
Rule 66 also prohibits an MP from reflecting 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 the House, except when a substantive motion to that effect is being debated. This rule obviously applies to judges and individuals such as the Public Protector or members of the South African Human Rights Commission, but does not apply to the president or other Cabinet Ministers.
Rule 67 quaintly prohibits MPs from referring to any matter on which a judicial decision is pending. This rule contains the pre-constitutional position regarding the sub judice rule, but this position has been overturned by the Supreme Court of Appeal in the Midi-Television case, so rule 67 may well be unconstitutional. Nevertheless, until it is invalidated it applies, so when Deputy President Ramaphosa refused to comment on his involvement in the signal jamming fiasco he was acting in conformity with the existing rules.
However, there is a standing order made by a former Speaker of the National Assembly, Frene Ginwala, on 17 September 1996, which reads as follows:
“A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.”
First, it can be argued that the motion of no confidence in President Zuma indeed constituted a “substantive motion” about his conduct and therefore covers the debate conducted this week.
But even if this were not correct, the standing order quoted above did not apply to President Zuma. This is because the standing order only applies to MPs (or to the president when he is actually present in the Assembly) – not to non-MPs. Although Rule 5 states that when the president takes his or her seat in the Assembly the rules also apply to him or her, this week (as is almost always the case when the Assembly sits) the president was not present in the Assembly, which means that the standing order quoted above could not possibly have applied to him.
Thus, as the rules stand, when the president is not in the Assembly, an MP is allowed to say the most scurrilous things about the president during any debate (regardless of whether a substantive motion to this effect had been brought) – as long as this is not done in “offensive or unbecoming” language.
When the president is not in Parliament an MP can call the president a murderer (perhaps alluding to Marikana), a thief (perhaps alluding to Schabir Shaik and/or Nkandla), a liar (perhaps alluding to his answers about Nkandla) or a weakling and lackey (perhaps alluding to the Guptas).
As the Constitutional Court pointed out in the case quoted above voters are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint.
When MPs make claims about the president in Parliament ordinary voters would judge such claims accordingly. Unless the president had acted in a way to give credence to the scurrilous claims made in Parliament about him, most voters would dismiss the claims as overblown political rhetoric.
This view accords with the idea that voters (and not politicians) are ultimately in charge and ultimately judge politicians and their parties on voting day. Voters judge whether they have any reason to believe an MP when he or she uses Parliamentary privilege to call the president (or anyone else) a thief.
It’s called democracy. Pity the Speaker does not seem to be a fan. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular 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.
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