Lawyers rule Speaker offside

Lloyd Gumbo Senior Reporter
Lawyers say National Assembly Speaker Cde Jacob Mudenda has no legal basis to demand that parliamentarians make substantiated remarks when debating in the House.They said the Constitution and Parliamentary Privileges and Immunities Act gave legislators absolute freedom of speech.

Former Attorney-General Cde Sobusa Gula-Ndebele said Section 148 of the Constitution gave parliamentarians freedom of speech regardless of what they said as long as they were in Parliament.

The section that covers Privileges and Immunities of Parliament says “ (1) The President of the Senate, the Speaker and Members of Parliament have freedom of speech in Parliament and in all parliamentary committees and while they must obey the rules and orders of the House concerned, they are not liable to civil or criminal proceedings, arrest or imprisonment or damages for anything said in, produced before or submitted to Parliament or any of its committees.”

Said Cde Gula-Ndebele: “If you look at that Section there is nowhere it limits freedom of speech on the part of legislators. MPs have the freedom to say whatever they want in Parliament.

“In fact, if you read the Sub Section (2) on the same Section, it actually creates room for addition of more privileges where it says ‘An Act of Parliament may provide for other privileges, immunities and powers of Parliament and its members and officers’.

“My reading of that provision is that you cannot curtail this freedom of speech. What the Speaker’s ruling suggests is that if an MP hears something from his constituency they should first investigate before saying it.

“But MPs are there to say things so that Parliament can set up a committee to investigate. MPs must be protected when they say something. That privilege must be guarded jealously.”

Cde Gula-Ndebele said the intention of providing privileges for parliamentarians was meant to encourage robust debate.
He said the Constitution provided for right of reply for those who may feel would have been unfairly defamed.

“The question of rules and orders in this case may arise from the moral aspect where you would not expect an honourable member to use unParliamentary language like vulgar words while debating. But what is clear is that they have absolute privilege in terms of what they say,” he said.

Mr Terrence Hussein of Hussein and Ranchod, said the legislators had a right to speak freely without fear of facing contempt.
“This is not something that was invented in Zimbabwe. It has its foundation in the Westminister system where MPs must have unfettered right to express themselves.

“In terms of Parliamentary Privileges and Immunities Act, MPs are protected when they say something in Parliament. However, when a reporter writes a story on that they must be accurate because they are not protected by privileges that protect MPs. With all due respect, I think the Speaker was wrong,” said Mr Hussein.

A prominent Harare lawyer who spoke on condition of anonymity, said the Speaker could not charge MPs with contempt for “allegedly violating unwritten rules”.

“The Speaker cannot create rules that are not there. Rules are not made by particular Speakers but it has to be a regulation that is known by everyone. There is nowhere in the regulations where MPs are obliged to make substantiated claims. As such, there is no such thing as contempt of Parliament for something that is not written.

“However, the point the Speaker must make is that he recognises that MPs have privileges but at the same time he is trying to protect the public by encouraging MPs to be responsible. There is nothing wrong with that point,” said the lawyer.

Another long serving legal practitioner added: “It seems the Speaker wants to violate freedom of speech of MPs. That is stifling freedom of MPs to represent their constituents.

“It is MPs’ responsibility to bring issues brought up by their constituents to Parliament. MPs have an obligation to account to their constituents. All they do is to raise issues so that those who are responsible must then take the onus to disapprove the claims.

“There is no way the Speaker can discipline an MP for representing his or her constituency. It is wrong. There is no legal basis for demanding that MPs must only speak of something when they have evidence.”

However, Cde Mudenda has said he did not gag the MPs, but only demanded that they be factual when debating.

A fortnight ago, Cde Mudenda warned legislators who made unsubstantiated remarks against fellow MPs, Parliament officials and members of the public that they risked contempt of Parliament charges.