Seeing red over parliamentary protocol

By Adv Johan Kruger, Director: Centre for Constitutional Rights

The Economic Freedom Fighters (the EFF) are causing an uproar inside and outside the hallowed hallways of Parliament.

Their apparent disregard for parliamentary customs and traditions have other political parties hot under the collar, while commentators stand divided on whether to support or condemn their unruly behaviour. From their dress code in the House, to dressing down the President and Speaker, members of the EFF have been challenging the status quo in Parliament. In this particular case, they may have a point.

Our democracy was founded upon the premise that government must be based on the will of the people. Such government, in terms of the Constitution, must be a multi-party system of democratic government to ensure accountability, responsiveness and openness subject to the Constitution and the rule of law. The National Assembly is accordingly elected to represent the people and to ensure government by the people under the Constitution. In terms of section 42, the National Assembly does this by "choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action".

In order for Parliament and its National Assembly to fulfil the constitutional obligations of debating matters of national importance and of overseeing and calling the executive to account, the Constitution provides specific powers to the legislature. First, section 57 empowers the National Assembly to determine its own internal arrangements, proceedings, procedures, rules and orders concerning its business - with due regard to representative and participatory democracy, accountability, transparency and public involvement. Secondly, section 58 provides for Cabinet members, Deputy Ministers and members of the National Assembly to enjoy freedom of speech in the National Assembly and its committees, subject to constitutional limitations and the rules and orders of Parliament. In addition, section 55 determines that the National Assembly must provide for mechanisms "to ensure that all executive organs of state in the national sphere of government are accountable to it" and "to maintain oversight of the exercise of national executive authority, including the implementation of legislation and any organ of state".

In Oriani-Ambrosini v Sisulu, the Constitutional Court held that the National Assembly, in adopting rules and procedures, must exercise their powers with due regard to representative and participatory democracy, accountability, transparency and public involvement, but also with regard to the right of minority parties to participate in the proceedings of the National Assembly and its committees in a manner consistent with democracy. The National Assembly is thus not at liberty to impose substantive or content-based limitations on the constitutional powers of its members, but at best adopt rules that are procedural in nature. In essence, this means that parliamentary rules and customs that unjustifiably limit the National Assembly's ability to engage in debate or hold the executive accountable, may not be appropriate, regardless of tradition. In addition, in Speaker of the National Assembly v De Lille & Another, the Supreme Court of Appeal held that "the right of free speech in the [National] Assembly protected by s 58(1) is a fundamental right crucial to representative government in a democratic society. Its tenor and spirit must conform to all other provisions of the Constitution relevant to the conduct of proceedings in Parliament." Again, parliamentary rules and procedures, as well as presiding officers, must, in principle, respect this right and freedom in the interest of accountability.

However, the degree and vigour with which the National Assembly engages in debate and oversight of the executive is predominantly determined by the governing party. Issues such as the PetroSA-case, the Travelgate and Guptagate-sagas, the delivery of textbooks and the Nkandla-matter unfortunately serve as examples of how the governing party has arguably diluted their obligation to debate these issues and effect oversight in Parliament. Hence, when real debate is stifled and effective oversight limited to lip service, the people, including opposition parties, will get frustrated and Parliament and members of the National Assembly will lose credibility. As such, what we have been seeing in Parliament may well be the result of the National Assembly's own failure to effectively hold the executive accountable and to debate issues of national concern as expected by the nation.

Democracy certainly requires mutual respect and rules that will give structure to processes and procedures in the legislature. Parliament, however, cannot hide behind protocol when it comes to its constitutional duty to be a national forum for public debate, and to scrutinise and oversee the executive. Yes - pomp, ceremony and prepared responses may form part of Parliament’s customs and traditions. That being said, if it takes overalls and harsh words to ensure proper oversight and real debate, perhaps it is time to redefine what "honourable" and the humdrum of parliamentary protocol really mean to our constitutional democracy. If not, more people may be seeing red.