Freedom of speech and rules of Parliament

The image and prestige of parliament recently came under perilous attack when Cope leader, Mosious Lekota, sought to push the boundaries of freedom of speech and abused parliamentary privilege when he made a startling allegation that President Jacob Zuma has "violated his oath of office". This serious charge was amongst an array of astonishing allegations Lekota bellowed out in his emotive and angry contribution to the national assembly's presidency budget vote debate.

Violation of an oath of office by a head of state is a serious constitutional transgression and history is littered with countless examples of presidents who have been impeached or recalled from office in this regard. Before a president commences the execution of the office, he/she must take an oath of affirmation to be faithful to the republic of South Africa and to obey, observe and uphold the constitution and all other laws of the land. The constitution also enjoins the president to undertake in his oath to, amongst other things, promote all that will advance the republic and oppose all that may harm it; protect and promote the rights of all South Africans; and devote himself or herself to the wellbeing of the nation.

In terms of section 89(1) of the constitution, a president can be removed by the National Assembly on the grounds of a serious violation of the constitution and the law. Parliament has the power afforded to it by the constitution to appoint and remove presidents. Therefore, due to this constitutional power that parliament wields in this regard, an allegation by a member of parliament in the House that a head of state has violated his oath of office is a serious matter that has serious implications for the legislative body.

It is for this reason that when Lekota made this claim, minister of higher education and training, Dr. Blade Nzimande, sprung up on a point of order and requested that national assembly deputy speaker, Nomaindia Mfeketo, look into the utterances and make a ruling. ANC chief whip, Dr. Mathole Motshekga, called on Lekota to apologise.

An allegation of violation of office by a head of state is a serious matter that cannot be made lightly or for mere political posturing, as Lekota has done. In terms of parliament's established practice and procedures, an MP who wishes to bring allegations of improper conduct should do so by way of a substantive motion in this House alleging facts which, if true, would in the opinion of the Speaker prima facie warrant such a decision.

It was therefore not unexpected that last week Mfeketo ruled Lekota out of order and instructed him to unconditionally withdraw his statement. Lekota is crying foul at this sound and sensible ruling, and has vowed to challenge the decision in court. Very absurd!

Parliaments all over the world have in place rules, conventions, practices and codes of conduct to which MPs must adhere in order to preserve decorum, respect and prestige of the states' legislative organs. As a supreme representative institution of the people, parliament survives on the confidence and respect the public have in it. Without the public confidence and respect, its dignity and integrity is eroded. The rules and practices in parliament are there to ensure that MPs conduct themselves in an honourable manner worthy of people's reverence.

MPs generally enjoy high level of freedom of speech and parliamentary privileges, which protects them from legal actions arising from statements they make in parliament. However, such rights and privileges are subject to the agreed rules and principles that guide the day-to-day management of parliamentary business.

Some have sought to wave the 'freedom of speech' card in defence of Lekota's undignified conduct during the debate, giving an impression that the ANC's insistence that he follow procedure and raise his serious allegation through a substantive motion is tantamount to muzzling or stifling debate. Nothing could be further from the truth.

Parliamentary procedures and practices enjoins MPs who make allegations of such magnitude to follow the route of a substantive motion, which is a formal proposal put before the house for the purpose of eliciting a debate and resolution of parliament. Essentially, this process places the onus on those who use a parliamentary podium to make serious claims to back them up with irrefutable evidence, or not make them at all.

When ex Cope leader Sam Shilowa made similar allegation in 2009 and agitated for a vote of no confidence in the president, he was reprimanded and advised by parliament's presiding officers to follow the same process. Cope's substantive motion was duly tabled and debated before being rejected by the house.

History of parliamentary rulings will show that Lekota's utterances were contrary to parliamentary conventions and therefore out of order.

• In 2007 Democratic Alliance MP Mike Waters was ruled out of order and ordered to withdraw the defamatory claims he made in a parliamentary question to the late minister of health, Dr Manto Tshabalala-Msimang. The allegations were not procedurally made and Walters, who refused to withdraw them, was ejected from the house by former speaker, Baleka Mbete.
• In 1996 a Democratic Party MP alleged that President Nelson Mandela was guilty of "contempt of parliament" due to his absence from the house at the time when he was scheduled to respond to questions. Madiba had attended a funeral. The then speaker of parliament, Dr Frene Ginwala, ruled the DP out of order as an allegation of that nature, made against the sitting president, ought to be brought before the House by way of substantive motion.
• During the 1997 debate on the withdrawal of the National Party (NP) from the truth and reconciliation commission, an NP MP referred to Archbishop Desmond Tutu, the then TRC chairman, as "a weeping clown" with "an incurable bias with respect to the conflicts of the past." The MP was ordered to withdraw his statement by Ginwala, as it impugned the competence and honour of the TRC chairman, whose appointment depended on the decision of the house.
• During an interpellation debate in 1997, an ANC member alleged that certain individuals in the opposition benches were "spies" for the apartheid government. Speaker Ginwala ruled the member out of order on the grounds that "making unsubstantiated allegations against the integrity of any member is un-parliamentary".

Usually those who make allegations impugning others' integrity, competence and honour outside of the established parliamentary processes possess no justifiable reasons or incontrovertible evidence to back them up. Having been an MP for many years, Lekota ought to know that an allegation of violation of office by a head of state is a serious matter that cannot be made casually or for political posturing in the house.

Therefore, through her ruling, the deputy speaker must sent a strong message to Lekota and other would-be transgressors that this parliament is not a shebeen, where spurious allegations are made with impunity.

>> Dr Mathole Motshekga is an ANC NEC member and Chief Whip of the Majority Party in the National Assembly. This article first appeared in ANC Today, the weekly online newsletter of the African National Congress.

Click here to sign up to receive our free daily headline email newsletter