In a recent article for Politicsweb Wesley Seale felt obliged to lecture the Democratic Alliance (DA) on its apparent misconception of democracy and the separation of powers. The gist of his argument seems to be that it was quite appropriate for the speaker of the National Assembly, Baleka Mbete, to have called in security force members to forcibly remove members of the Economic Freedom Fighters (EFF) from the House on the night the president delivered his state of the nation speech.
After she ruled them out of order for having raised the issue of accountability of the president for public funds that flowed into his private residences at Nkandla, she ordered three of them to leave the House. When they desisted, armed policemen disguised in civic clothes dragged the EFF caucus out of parliament, with at least one of them so severely injured that she need to be hospitalised.
Unfortunately the concept of ‘democracy' is often abused for political advantage. Even authoritarian one-party states of the former East Bloc claimed that they were democratic.
There are also many variations of democracy but equality, transparency, tolerance and accountability belong to the core elements of a modern democracy. The rudimentary 18thcentury distinction between legislature, executive and judiciary has become more refined meanwhile in some systems. The presidential system of the USA is characterised by executive predominance, whereas the Westminster system is typified by parliamentary sovereignty.
In the constitutional state model, which is followed by many Continental European states, the branches of state power hold each other in equilibrium of power. Central to the equilibrium of power is the location of the prosecutors.
In most Anglo-American states, the prosecutors fall under the justice minister, albeit with restricted executive oversight, whereas they function as an independent state organ next to the judiciary in the third branch of state power in constitutional states to prevent executive and political interference in criminal proceedings.[i]
In 1994, South Africa switched to the constitutional state model. It is therefore a misconception that the new constitutional system is "a hybrid between the Congressional system (US) and the Westminster system (United Kingdom)" as Seale suggests. The bitter lessons of an abuse of executive and legislative power that was possible under the Westminster constitutions were ruled out by the drafters of the Constitution. The Constitution is now supreme (s 2 of the Constitution) - not the executive or parliament - and all state action is subject to the bill of rights (ss 7 and 8 of the Constitution) and judicial review.
A constitutional state follows a strict separation of functions. The new separation of powers is between parliament (legislatures), executive (state administration) and law-enforcers (judiciary and prosecutors). One should not conflate a separation of functions with a separation of office-holders. Thus, although cabinet ministers (with the exception of the president) are also members of parliament, one must clearly distinguish between the functions they exercise in a specific capacity.
At the heart of the dispute between the opposition parties and the speaker is whether she has performed her constitutional duties properly or whether she has allowed and/or tolerated undue executive inroads upon the sphere of powers of parliament. The following issues need clarification: Why was a jamming device installed? Was the speaker aware of that and condoned it? On whose orders did the police officers act? May the speaker legally order security officers to forcibly remove members from the House? Was the security service used to further political interests of the ANC in an unconstitutional manner?
Before the legal issues are discussed in more detail, the facts must first be clarified:
First, there was an unprecedented deployment of security forces that day in Cape Town and DA members, including a member of parliament, were assaulted and arrested by the public order policing unit during a protest. When asked about the arrest of DA members, the Western Cape police commissioner Arno Lamoer said the security in and around parliament on that day had been "a national operation with different role players."[ii]
Second, it was reported that the intervention by the security service members was rehearsed in parliament for days before SONA in anticipation of the EFF's raising the matter of Nkandla as a point of order. The security officers, who were called in by the speaker were not the usual parliamentary security staff, but included members of various police public order units, who could only have acted on orders of the minister and the police commissioner. The heavily armed SAPS officers or ‘White Shirts' were seen readying in the passages of the National Assembly, outside the chamber, even before the parliamentary proceedings were started.[iii]
Third, a jamming device was installed inside parliament to scramble all cellular networks and to block communications. The intention was apparently to stop journalists from transmitting events inside the house to viewers and listeners in real time.[iv] When the press, joined by the opposition, demanded that the signals should be cleared, an usher was seen carrying a note from Deputy President Cyril Ramaphosa to State Security Minister David Mahlobo, who initially tossed it aside and refused to read it. Eventually he did and left the chamber.[v] When Mahlobo returned to the House, so did the network. It was clear that the executive knew about the scrambling device and that the signals were restored again only on their orders.
Fourth, after the Speaker ruled Malema, Shivambu and Ndlozi of the EFF out of order and asked the sergeant at arms to remove them, security service officials used disproportionate force and removed not only the three MPs, but the whole EFF caucus although the others have not been ruled out of order. When the armed men entered, some formed a guard around the president for no apparent reason. Three armed men sat down on the speakers' bench and another sat down directly behind Chief Justice Mogoeng Mogoeng. He rose and left in dismay.[vi]
Fifth, the DA protested the violence against MPs and the presence of armed men in the chamber, and staged a walkout. The United Democratic Movement, Congress of the People and Agang also left, whilst ANC MPs applauded and cheered.
Finally, after the ceremony Minister in the Presidency Jeff Radebe claimed he was not aware of the involvement of the Department of State Security in the arrangements around parliament, including the scrambling of the cellular networks. He could also not provide information about the security officials who forcibly removed the EFF from the House.[vii] Yet, several ANC members openly bragged that the action was taken to "teach the EFF a lesson". Higher Education Minister Blade Nzimande boasted about this and said: "We had to show them who is in charge."[viii]
Pierre de Vos, a professor of constitutional law at the University of Cape Town, already discussed certain legal aspects of the dispute elsewhere.[ix] I will briefly recapitulate that before I set out other legal points that are also relevant.
Section 58 of the Constitution regulates the immunity of members of parliament and determines that they have freedom of speech, subject to the rules and orders of parliament. The Powers, Privileges and Immunities of Parliament and the Provincial Legislatures Act of 2004 regulates that in more detail. Section 3 states that:
"The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament."
The Speaker and the Chairperson are thus obliged to protect the sanctity of parliament as an institution and may not legally delegate their powers to the Minister of State Security, the security services or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:
"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."
As de Vos pointed out, when Mbete later suggested to journalists that she was not in control of the security arrangements at parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.
Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, "we became aware that there was a plan for certain equipment to be deployed." But she admitted that: "It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president." (Since when does a president need armed protection to enter parliament?)
This means that if the Speaker was being truthful, she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the parliament when she was legally bound to give permission for their actions and retain control over these actions. In effect, she had forsaken her constitutional duty to protect the legislature against encroachment by the executive branch of government.
There are exceptional circumstances where the security service may act without such prior permission. Section 4(2) of Act states that when there is "immediate danger to the life or safety of any person or damage to any property" members of the security services may enter upon and take action in the precincts of parliament in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the speaker.
In terms of the Act, the ‘security service' referred to means the security services contemplated by section 199(1) of the Constitution and includes the defence force, police service and intelligence service. They all form part of the executive branch and any action taken by them in the precincts of parliament is restricted and closely regulated. Ordinarily parliament's own security staff takes care of matters in and around parliament.
In this instance, there was no immediate danger to the life or safety of any person or damage to any property. The intervention was planned and rehearsed with ample time to obtain prior permission. The action taken therefore cannot be justified on the basis of section 4(2) of the Act.
Next, one should consider whether the speaker's calling in of the security service could be justified on the basis of section 11 of the Act. This provision states that:
"A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services."
A disturbance is defined as "any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament ..."
At first glance, it is not clear whether the term ‘person' includes members of parliament. The Act distinguishes in various places between ‘persons' and ‘members', but if one looks at section 27 of the Act, it appears that the more general reference to ‘persons' could include MPs. However, there are two indications in the Act which might tip the balance of the scales against a wide interpretation: first, section 7(e) creates the impression that such a disturbance refers only to non-members; and second, section 11 refers to instances where a person that causes a disturbance "may be arrested and removed". Section 58(1)(b) of the Constitution, however, rules the arrest of members for anything that they have said in the Assembly out.
The Rules of the Assembly also do not favour an interpretation of section 11 of the Act to be invoked against a member causing a disturbance in the House. Rule 42 only provides for the serjeant at arms to remove ‘strangers' from the Chamber on the basis of misconduct. Rule 53 requires a member ordered to withdraw from the Chamber to leave forthwith. In the event of grave disorder, Rule 56 requires that the presiding officer should either adjourn the meeting, or suspend the proceedings for a period stated by him/her. The rules do not mandate the speaker to call upon the serjeant at arms to forcibly remove a member from the chamber when such a person refuses to leave. She can only suspend or to adjourn the meeting when the disruption they cause is grave.
The measures taken were clearly disproportionate in scope and intensity. Furthermore, only three EFF members were ordered to leave the House, but the whole EFF were dragged out of the House.
The broader picture that evolved should also be evaluated. The security in Cape Town and parliament on that day had been a national operation which was planned and coordinated by the minister of safety and security. The aim of the operation was, in the words of a minister and several ANC members, "to teach the EFF a lesson" and to show them that the ruling ANC "is in charge".
The provisions of section 199(7) of the Constitution, however, specifies that no member of the security forces may, in the performance of their functions, prejudice a political party interest that is legitimate in terms of the Constitution, or further, in a partisan manner, any interest of a political party. Subsection (6) further states that no member of any security service "may obey a manifestly illegal order". In other words, police officers may not obey orders of a minister in transgression of the prohibition to act in a partisan manner or to further the interests of a specific political party.
From the facts, it is clear that security forces from the SAPS were deployed in a partisan manner to further the interests of the ANC on that day. DA supporters were intimidated and arrested for no apparent reason. It is further clear that members of the cabinet planned the eviction of the EFF members by security force members in an operation staged by the state security minister and/or other ministers where the security forces were used in a partisan manner by the ruling party.[x]
Seale further purports to make out a case that the speaker need not be neutral. The speaker must be fair as presiding officer of the Assembly though, even if she is a high ranking ANC official. She is obliged to perform her duties in the manner prescribed by the Constitution and the rules of parliament.
Given the fact that President Zuma avoided to appear in parliament since August 2014 when the opposition challenged him about the repayment of tax money that flowed to Nkandla, and the speaker's flouting of Rule 111 of the National Assembly to see to it that the president appears at least once a quarter to answers questions in the Assembly, the frustration levels of the opposition parties were high. It was obvious that they would use any opportunity when the president again appears in parliament to question him on this issue. Their oversight function in terms of section 55 is a legitimate interest in terms of the Constitution.
It is an open secret that the speaker and the president meet every Monday at Luthuli House. Given that her loyalty to the party and its leader will invariably trump loyalty to the rules of parliament, it is not likely that the speaker will ever grant permission to summon the president to appear in the National Assembly in terms of section 56 of the Constitution.
ANC MPs have been shielding the president instead of holding him accountable. Part of the problem is an unconstitutional provision in the ANC's code of conduct for ANC MPs. The 1994 code provides that "[a]ll elected members shall be under the Constitutional authority of the highest decision-making bodies of the ANC, and decisions and policies of the highest ANC organs shall take precedence over all other structures, including ANC structures in Parliament and government". The code forbids MPs from "any attempt to make use of the Parliamentary structures to undermine organisational decisions and policies."[xi]
Section 44(4) of the Constitution, however, provides that "when exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of the Constitution."
Friction was due to crop up given the circumstances of Mbete replacing Max Sisulu as speaker. Sisulu was elected National Assembly speaker in May 2009 but he apparently irked some within his own party, who were impatient with his apparent reluctance to preside over the Assembly in a partisan way. Sisulu was popular with the opposition parties, who saw him as fair and non-partisan in the way he led parliament. However, he fell out of favour with Zuma when he established an ad-hoc committee to look into the public protector's report on the Nkandla upgrades.[xii]
The Constitution determines that a speaker should be elected "at the first sitting of the Assembly" after the election with the chief justice presiding over the election, but the ANC caucus already elected Mbete before the official procedures under the guidance of the secretary general of the ANC.[xiii]
The Constitution, however, prescribes that nominations for the office of the speaker should be made in parliament and signed by two members, and if more than one candidate is nominated, the voting must take place by secret ballot. There was nothing very secret in the ballots for Mbete and there was also no fair stand-off between her and Sisulu to reflect the personal preferences of the members on who should be the leader of the Assembly.
What is very disconcerting about the latest executive inroads upon the sphere of power of parliament is an increasing conflation of the governing party and the state. The state apparatus is used to shield President Zuma from public accountability and criminal prosecution. In the process, the Constitution is check-mated.
If there is one lesson to be learnt from states that slipped into authoritarian rule, then it is that police states and dictatorships seldom come about overnight. It is a creeping process. It is therefore of utmost importance to vigilantly protect constitutional institutions to ensure a vibrant democracy.
Dr Loammi Wolf is a constitutional specialist in the field of state of state organization law and runs the initiative Democracy for Peace.
Footnotes:
[i] L Wolf ‘The unsuccessful constitutional transition of the NPA' Journal of the Helen Suzmann Foundation, issue 71 (2013) 20-26, accessible here.
[ii] ‘Western Cape police silent on action taken at Sona' Mail & Guardian (4 March 2015).
[iii] Ranjeni Munusamy ‘SONA2015: Pride and Prejudice, Parliament edition' The Daily Maverick (16 February 2015); Raymond Suttner ‘Parliament's attempted lock-down - A threat to everyone's freedom' The Daily Maverick (16 February 2015).
[iv] See reference to Suttner in n 3. Journalists were also intimidated by security forces in the press gallery - see Adriaan Basson ‘Gedleyihlekisa is laughing at you' News24 (15 February 2015).
[v] Ramaphosa later refused to answer any questions on the signal jamming - see Thulani Gqirana ‘Ramaphosa refuses to answer questions on signal jamming' Mail & Guardian (05 March 2015).
[vi] Thabo Mokone, Jan-Jan Joubert, etc ‘State of chaos' The Times (13 February 2015).
[vii] Ranjeni Munusamy ‘SONA2015: The day our country broke' The Daily Maverick (13 February 2015).
[viii] Qaanitah Hunter & Mmanaledi Mataboge ‘Sona 2015: "We had to show them who is in charge"' Mail & Guardian (13 February 2015).
[ix] Pierre de Vos ‘SONA2015: The legal side of the Moon' The Daily Maverick (13 February 2015); and his blog ‘Who will protect our Parliament against the President and his securocrats?'Constitutionally Speaking (17 February 2015), accessible here.
[x] When asked about the arrest of DA members, the Western Cape police commissioner Arno Lamoer said the security in parliament on that day had been a national operation with different role players - ‘Western Cape police silent on action taken at Sona' Mail & Guardian (4 March 2015).
[xi] For a discussion, see Brad Cibane ‘SONA2015 and our Constitutional crisis: What happens when the fox guards the henhouse?' The Daily Maverick (17 February 2015); Alex Boraine What's Gone Wrong?
South Africa on the Brink of Failed Statehood (2014).
[xii] The Sunday Times reported that Sisulu had been summoned to ANC headquarters Luthuli House to explain why he had set up the committee, following a complaint by Mfeketo. See ‘ANC halts Nkandla probe' Times Live (29 April 2014); ‘Former speaker Sisulu resigns from Parliament' Mail & Guardian (29 May 2014).
[xiii] ‘Mbete to replace Sisulu as National Assembly speaker' Mail & Guardian (20 May 2014).
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