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24 June 2017 07:20 (South Africa)
Opinionista Floyd Shivambu

Charges from the Speaker of the National Assembly are hilarious and patently illegal

  • Floyd Shivambu
    floyd shivambu.jpg
    Floyd Shivambu

    Floyd Shivambu is deputy president of the EFF. See his Wikipedia profile here.

On the 20th of April 2017, the Speaker of the National Assembly tabled in Parliament’s Announcements, Tabling and Committee (ATC) Report dated 13th April 2017 a reference that I be referred to Parliament’s Disciplinary Committee, and subsequently Parliament Communications issued a statement announcing this decision. This was in response to the correct and proper remarks I made as a member of parliament during the motion of no confidence on the 10th November 2016 against Jacob Zuma wherein I characterised him as a post-colonial disaster, under the puppet control of the Guptas, with potential to kill and eliminate political opponents. Here's why the charges will not stick.

A basic reading of the 9th edition of the Rules of the National Assembly reveal a simple fact that what the Speaker of the National Assembly did is  inconsistent with these Rules. The current Rules of the National Assembly provides for a three-stage enforcement process of the Rules in instances where members are thought to have contravened them.

The first stage in the enforcement of Rules of the National Assembly is Rule 70 (1) which says: “If the presiding officer is of the opinion that a member is deliberately contravening a provision of these rules, or that a member is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly, he or she may order the member to leave the Chamber immediately for the remainder of the day’s sitting.

The second stage is Rule 71 (1) which says: “If a presiding officer is of the opinion that a contravention committed in terms of Rule 70 by a member of the House is of so serious a nature that an order to leave the Chamber for the remainder of the day’s sitting is inadequate, the presiding officer may:

  • if he or she is the Speaker, suspend the member for a period provided for in Rule 74 and order him or her to leave the Chamber immediately:
  • if he or she is not the Speaker, name the member and order him or her to leave the Chamber immediately and not participate in any parliamentary activities until the Speaker, after consultation with the presiding officer, has announced what action is to be taken against the member in terms of these rules, including whether such member will be suspended for a period provided for in Rule 74; provided that the Speaker’s decision must be announced within two working days after the member has been named.

The third stage is the contentious one, which is currently under judicial review as it speaks to the physical removal of a member of parliament who contravenes the Rules of the National Assembly. This is contained in Rule 73, which reads as follows:

  • If a member refuses to leave the Chamber when ordered to do so by the presiding officer in terms of Rule 70 or 71, the presiding officer must instruct the Serjeant-at-Arms to remove the member from the Chamber and the precincts of Parliament forthwith.
  • If the Serjeant-at-Arms is unable in person to effect the removal of the member, the presiding officer may call upon the Parliamentary Protection Services to assist in removing the member from the Chamber and the precincts of Parliament.
  • Unless already suspended in terms of Rule 71, a member who is removed from the Chamber in terms of Sub-rule (2) is thereby immediately automatically suspended for the period applicable as provided for in Rule 74, and may not enter the Chamber or the precincts for the duration of the suspension.
  • If a member resists attempts to be removed from the Chamber in terms of Sub-rule (1) or (2), the Serjeant-at-Arms and the Parliamentary Protection Services may use such force as may be reasonably necessary to overcome any resistance.

The Economic Freedom Fighters (EFF) has objected to the Rules of the National Assembly in their current form because we are aware that they were primarily designed to suppress and intimidate members of parliament representing the EFF. However, because the National Assembly adopted these rules on the 26th May 2016 by more than 211 members of parliament,  until the new Rules are proven to be unconstitutional, all members of Parliament, inclusive of presiding officers and us as EFF MPs should abide by these Rules. In referring the matter to the Disciplinary Committee, the Speaker has ignored these rules and acted typically on emotive instincts which disposes her of basic rationality.

Now despite all these realities, the Speaker decided to ignore proper processes in Parliament and instead referred me to the Disciplinary Committee that is established in terms of Rule 216 of the National Assembly. When I refused to withdraw the statement that Jacob Zuma will kill his political opponents and that the Gupta's appointed ministers Mosebenzi Zwane as a Minister of Mineral Resources and Des van Rooyen as a Minister of Finance until his appointment was rejected by broader community the presiding officer at the time, Deputy Speaker Lechesa Tsenoli, did not ask me to leave the chamber. He failed in his duties to follow any of the process outlined in the three stages as per the rules. The question is why did the presiding officers of the National Assembly ignore all three stages and opt for a disciplinary process.

This question should be asked because the Constitution, the supreme law of the land, specifically protects members of parliament from any form of prosecution for things they say in Parliament in terms of section 58, which states:

“Cabinet members, Deputy Ministers and members of the National Assembly (a) have freedom of speech in the assembly and in its committees, subject to its rules and orders; and (b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for (i) anything that they have said in, produced before or submitted to the Assembly or any of its committees”.

Judge Bozalek in Malema and Another vs. National Council of Provinces Chairperson and Another acknowledged that:

“The primacy of a Member of Parliament’s right to freedom of speech has been consistently recognised by our courts as is illustrated by the following extracts from the judgment of the Supreme Court of the Supreme Court of Appeal in Speaker of the National Assembly v De Lille and Another where Mohamed CJ stated the following of the guarantee of freedom of speech to Members of Parliament in sect 58(1) of the Constitution: The threat that a member of the Assembly may be suspended for something said in the Assembly inhibits freedom of expression in the Assembly and must therefore adversely impact on that guarantee”.

The composition of the DC is relatively sensible and does not rest on the narrow majority of the ANC  which often uses its majority to undermine Assembly Rules and the Constitution. Rule 216 says the DC will be comprised of the Deputy Speaker and a senior whip from each party in the Assembly nominated by the party, and a member designated by the Speaker. The recently constituted committee has two members from the ruling party and five from opposition parties. 

The articulations or gross misconduct which the Speaker of the National Assembly says I must be charged for was not subjected to any of these processes. I correctly refused to withdraw a statement that Mr Jacob Zuma will kill his political opponents because in politics, postulations are part of what we do every day when cautioning potential supporters or voters against or for a cause. Political predictions based on thorough observation of present conduct is part of politics and without these, there will never be politics.

Proscribing postulations in politics will render politics irrelevant and will also undermine the freedom of speech which is an absolute right for members of parliament as provided for in the Constitution. Why would a Speaker ignore all these rules and rush in where angels fear to tread? We will never know, but her lack of judgment is at the centre of why parliament is almost always found to be on the other side of the law.

If Parliament prevents members from saying Zuma will kill you, it might as well prevent members from saying that this or that politician will fail you in the future and without these basic tenets, we will not have an honest, open and democratic parliament. Why would parliament force any member from stating the obvious fact that Gupta's appointed Ministers, when even the most senior officials of the ruling party publicly state that cabinet lists were drafted and adopted elsewhere other than their internally agreed platforms?

The disciplinary process proposed is a farce and like all previous attempts to criminalise the EFF, this too will fall flat and humiliate the ANC members  who fail to even read the basic rules that they overwhelmingly steamrolled in parliament.

The reason why we are subjected to a disciplinary process is due to the correct characterisation of Jacob Zuma as a post-colonial disaster, and it is apparent now that we also have a post-colonial disastrous parliament that fails to comprehend its constitutional responsibility and correctly apply the laws of our country and its own rules. The good thing for South Africa is that we will soon bring this to a complete halt through the electoral defeat of the ANC.

We are not worried about the charges because we know that majority of members of the disciplinary committee are sensible and Constitution respecting members of parliament who will not fall into the ANC’s suppressive intentions. Even if the members undermine our constitutional rights, there is recourse in the courts, which are presided by a Constitutional court which respects South Africa’s democratic rights. We will be absolved sooner than our detractors think. The robustness of the EFF will never be undermined by threats of ridiculous disciplinary processes. DM

Floyd Shivambu is EFF Deputy President.

  • Floyd Shivambu
    floyd shivambu.jpg
    Floyd Shivambu

    Floyd Shivambu is deputy president of the EFF. See his Wikipedia profile here.

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