Consensus must be hallmark of parliamentary discipline

By Lawson Naidoo

THE disgraceful scenes last Thursday, when the public order policing unit entered the chamber of the National Assembly, constituted not just an assault on members of Parliament but a cynical assault on our democracy.

It is poignant that this occurred on the eve of the conclusion of the hearings of the Marikana inquiry that has been seeking answers to the question: who ordered the police to shoot and kill striking mine workers? Now we must ask who ordered the police to assault MPs.

It is becoming difficult not to question whether there was a deliberate strategy at play. Why was the riot squad on standby before the house assembled? Were they deployed on the basis of a threat analysis? If so it was surely necessary for this analysis to be provided to the Speaker, who would have been under a duty to share it with all parties in Parliament so that the security and integrity of the institution could be properly safeguarded. The latter was clearly not done.

If the "intelligence" revealed that the opposition parties were going to filibuster proceedings to delay the inevitable adoption of the report of the ad hoc committee on Nkandla, should the Speaker not have engaged with the opposition parties beforehand and highlighted the damage such an unedifying spectacle could do to the institution of Parliament? To instead place the riot police on standby is as disproportionate a response as one could imagine. The early deployment of the riot squad outside Parliament is reminiscent of the presence of heavily armed police units around the koppie at Marikana on August 16 2012.

It is also unclear who ordered the police into the chamber and what the police mandate was. Police may enter Parliament without the authority of the Speaker only if there is immediate danger to the life or safety of any person or damage to property. It is clear no such threat existed, so if neither the Speaker nor the Deputy Speaker ordered the police in, the actions of the police were unlawful. This was the second time in less than three months that the police have breached the sanctity of the chamber; the ascendency and dominance of the security apparatus in the national legislature must be strongly condemned.

Did it require the deployment of heavily armed riot police to remove a recalcitrant female MP from the podium? Some who seek to justify this intervention will soon be making pious statements about the "16 Days of Activism Against Gender Violence".

A further concern is who gave the order to cut the audio and visual feeds from the National Assembly when the police entered the chamber. This action offends the right to information and breaks the link of trust between the public and the very institution that is mandated to represent our views, concerns and aspirations. The openness of Parliament is a fundamental pillar of its accountability to those it claims to represent.

It appears that the presiding officers have lost the confidence of many of the members of the opposition. This renders Parliament dysfunctional and unable to fulfil its mandate in terms of section 42(3) of the constitution. If we have reached the point of an irreconcilable breakdown in that relationship, something may have to give.

It is worth noting that in this fifth Parliament, and for the first time since we achieved democracy, no member of an opposition party is among the presiding officers, thereby further distancing the opposition parties. This demonstrates the majoritarian rather than the consensual approach that the ruling party is implementing. This approach undermines one of Parliament’s core functions of holding the executive, including the President, to account, a strategy we have witnessed being played out in the ad hoc committee on Nkandla. Indeed, the crisis that Parliament now faces is predicated on the failure of the institution to hold the President to account for the upgrades to his residence at Nkandla in terms of the report of the public protector. The giant shadow cast by the Nkandla scandal and the ruling party’s efforts to protect President Jacob Zuma at all costs is central to this crisis.

While recourse to the courts to ensure that constitutional obligations are properly discharged may be necessary as a last resort, such an approach is not appropriate to deal with the ordinary functioning of Parliament. The courts cannot be a substitute for effective leadership in the legislature. That would be bad for our courts, our politics and for SA. Our constitution is premised on a process of democratic politics, not judicial decree. Parliament is the tribune of our people, formalised within a constitutional framework that respects the separation from the judiciary and the executive, and acknowledges the checks and balances they provide over each other for the exercise of state power.

It is necessary to highlight the concern, outrage and condemnation of these recent developments in Parliament, and call for accountability.

But that is not enough. Urgent remedial action is required to resurrect Parliament.

Parliament needs to reassert consultation, consensus and accountability as core principles to enable it to reclaim its constitutional role. It needs to revisit and fundamentally rethink what it should be doing to properly and effectively implement its mandate and serve the interests of the electorate. To achieve this will require clear, firm and wise leadership by our elected representatives.

As a first step, the Speaker of the National Assembly and the chairman of the National Council of Provinces, with the leader of government business, should convene a meeting of the whips of all parties to address how to overcome these challenges. All parties need to undergo deep introspection to consider and prioritise the national interest and the imperative of improving the lives of all our people within the vision of the constitution. They have a duty to look beyond narrow party political interests.

We need to dig deep into our national psyche to find the traits, characteristics and strength to again overcome adversity and division. We have done so before. We must recall the dream, purpose and desire to create a better society that delivered us from the evil of apartheid to a constitutional state.

If those entrusted with this responsibility fail to resolve the issues in Parliament, it may become necessary to engage trusted and respected outsiders to mediate a resolution of the impasse. This is not an approach to be taken lightly. There are inherent risks in doing so, not least of which is that Parliament’s status as the foremost institution "providing a national forum for the public consideration of issues" (section 42(3) of the constitution) may be undermined, as may its power "to determine and control its internal arrangements, proceedings and procedures; and make rules and orders concerning its business" (section 57(1)). We must ensure that we strengthen rather than weaken the institution as we confront these challenges.

While we have been celebrating 20 years of democracy, this issue exposes the fragility of hard-won constitutional democracy, and the need for eternal vigilance to protect it.

This article was first featured in Business Day on 17 November 2014.