Was Malema's eviction justified?
- Moloto Mothapo
- 14 Sep 2015 01:52 (South Africa)
EFF leader Julius Malema was on Wednesday booted out of Parliament and suspended for a period of five working days for refusing to withdraw a un-parliamentary and unfounded statement that Deputy President Cyril Ramaphosa is a murderer. A charge of such a grave, criminal nature cannot be made lightly or for mere political point scoring, as it impugns the integrity of a fellow MP. If the leader of the EFF is confident of the validity of the claim he is making, he ought to follow a long-standing parliamentary procedure and table a substantive motion, accompanied by concrete legal evidence, to substantiate his allegation. It is now a matter of public record that the Farlam commission dismissed the baseless and politically opportunistic claim that the deputy president "conspired to kill the people of Marikana". Such unfounded allegations are not only defamatory but cheapen the quality of parliamentary debates.
Malema has been battling corruption charges arising from the public protector's report, which found he had masterminded the large-scale looting of taxpayers' money in Limpopo – which resulted in the bankruptcy of that provincial government and its being placed under administration. He has also been in and out of court regarding serious charges of tax evasion relating to his companies' business dealings in Limpopo. Despite all these, there is no record in Parliament of him ever being referred to as as 'corrupt', a 'fraudster' or a 'tax evader'.
Robust and frank parliamentary debate can never thrive in a climate of insults and defamatory remarks. The rules of Parliament are thus in place to ensure that multiparty discourse is conducted within the limits of freedom of speech, with respect and dignity.
MPs enjoy the highest level of free speech and are protected by parliamentary privilege, which means they cannot be sued or prosecuted for anything they say during the proceedings of the House. However, as Westminister parliamentary experts Robert Rogers and Rhodri Walters write in How Parliament Works: "The protection of privilege is balanced by a need for it to be used responsibly." Even in the Constitution's Bill of Rights, freedom of speech has several limitations.
Wednesday's decision inevitably generated a flurry of opinions and commentaries, some of which were unfortunately misinformed and misguided. All it took was for the Democratic Alliance (DA) to immediately allege that the decision to throw Malema out of the House was high-handed to spawn commentaries from the likes Shadrack Gutto and Eusebius McKaiser. Both commentators, who never shy away from imparting their 'expert opinion' on the complex functioning of Parliament, have neither previous experience on parliamentary issues nor rudimentary knowledge of the parliamentary rules book. Gutto has claimed that Malema did not disrupt the business of the House and therefore his eviction was unnecessary. McKaiser has tweeted that "if you deem Malema to be uttering a false statement, you deal with falsehood by exposing it as such in debate and not by shutting an MP up". As lamented by Eric Alterman in his book, Sound and Fury – The Making of the Punditocracy, lack of knowledge doesn't always inhibit a pundit from waxing eloquent. Therein lies the tragedy of our public discourse.
Clearly Gutto parrots the DA in arguing that Malema was not disruptive and therefore he should have been "named", rather than kicked out, for refusing the order of the presiding officer to withdraw his utterance. The DA deliberately misinterprets the rules for opportunistic reasons. It sought to ingratiate itself with the EFF after the collapse of the opposition alliance due to the DA's support of the new tightened rules aimed at curbing disruptions in the House. Relations between the two parties have since been hostile and the main opposition's influence on the second-biggest opposition in particular and the entire opposition in general has weakened.
The DA and Gutto have also claimed that there was no need for the forceful removal as Malema did not pose any danger to other MPs. Again, this illustrates the DA's opportunism and flip flopping on matters of principle. The role of the sergeant-at-arms and the security staff of Parliament is to remove MPs whose conduct impedes the business of the House. In the event of any potential danger or violence in the House, such becomes the competence of the police, not the security staff. The DA has been amongst those who argued that the security staff, not the police, should be deployed to remove non-violent disruptive MPs from the House. Now that such is the case today, they make an about turn and claim that non-violent, disruptive MPs must not be removed at all, but should rather be "named" and be left to remain in the House. This sums up the ridiculously low standard of our opposition politics.
The rules of Parliament are instructive pertaining to un-parliamentary language. If an MP is ruled out of order for making un-parliamentary language, such MP must immediately withdraw the statement as directed by the presiding officer. The standard practice in terms of the rules has been that any MP who refuses to withdraw an un-parliamentary statement is ordered to leave the House for the remainder of the period of the sitting. Until the EFF's arrival at Parliament, no MP has ever refused an instruction of the presiding officer to leave the House for refusal to withdraw an un-parliamentary statement. This has thus necessitated an amendment to the rules to ensure forceful removal of MPs who refuse to abide by the orders of the presiding officer in order to ensure that the House is not unduly disrupted.
In any democratic Parliament, the authority of the presiding officers and the supremacy of the rules, which are agreed to by all parties, are paramount to the preservation of a functional institution that is able to effectively fulfil its constitutional obligations. The Constitution enjoins Parliament to establish its own rules, procedures and conventions to manage its internal affairs. Failure to submit to the authority of the presiding officer and refusal to abide by the rules is tantamount to contempt of Parliament and impedes proceedings. Refusal to leave the House when ordered to do so creates a stalemate between an MP and the presiding officer, which makes it impossible to continue with the business of the House. That is disruption, which Gutto would not understand due to his ignorance regarding the functioning of Parliament. Even in a court of law, if anyone refuses to abide by court procedures, the judge instructs that such a person be immediately removed, regardless of whether the court would rise in a few minutes. The stalemate created by Malema's refusal to either withdraw the un-parliamentary utterance or leave the House would have prevented the House to continue, let alone be officially adjourned. If such conduct does not amount to a disruption of the business of the House, then I don't what disruption is.
McKaiser's contention that falsehoods, meaning unfounded accusations of a serious criminal nature, should be disproved through debate is flawed, naive and impractical in the real world. As a former debating champion, MacKaiser naively believes that MPs can just disregard the rules and call one another criminals, thugs, murderers and rapists and all these defamatory insults can be proven otherwise through a debate. This would be a hilarious joke if it was not coming from one of the country's influential intellectuals.
As I have previously observed in this publication, it is natural that Malema and his EFF's gimmicks would be lauded by a huge section of the punditocracy and the media, which is willing to turn a blind eye to his flaws and tactics as long as he advances a shared anti-African National Congress agenda.
In the final analysis, it ought to be stressed that the presiding officers – in the same way that judges don't make laws but merely interpret them – do not decide on the rules of the House of Assembly but are merely responsible for enforcing them.
Those who applaud any conduct that brings Parliament into disrepute merely because they hate the majority party, are guilty of myopia and are not acting in the interest of the Constitution they purport to respect. DM