Testing the constitutionality of the powers and privileges committee

By Walter Bhengu

As the dust settled over the #PayBackTheMoney incident in Parliament, the speaker of Parliament, Baleka Mbete, recommended that the 20 EFF members involved should be charged and faces the music before the powers and privileges committee. Pay back the money is the now famous phrase that was directed at President Jacob Zuma by Julius Malema. This led to the intervention of the speaker of Parliament and subsequently ended with the EFF members being booted out. The booting-out trend has become very popular in the last couple of months, that and the frequent walk-outs. Parliament has indeed become a boiling pot.

EFF has since appeared and walked out of the powers and privileges committee citing that it is a kangaroo court. They contend that the majority party, which is the ANC, will be the judge, jury and executioner in this matter. Furthermore the complainant and the witnesses will be the ANC. It is important to note that one of the counter-arguments to the EFF’s stance is that the ANC as the majority in Parliament will always dominate parliamentary committees. Section 46 of the Constitution is very clear on how the composition of Parliament should be and this is based on votes in a national election. Rule 125 of the rules of Parliament also states that the composition of committees should be proportional to the representation in Parliament. Currently the committee consists of nine members, six of which are from the ANC. The question then is: Does the EFF have a point in its grievance that the hearing will be unfair?

To effectively look into this, one needs to interpret the Constitution, the Powers, Privileges and Immunities of Parliament Act (PPIP Act) and the Rules of Parliament. Section 16 of the Constitution guarantees everyone the right to free speech as long the expression does not incite violence or harm, hate speech and propaganda of war. Freedom of expression is one of the cornerstones of Parliament and it is defended fervently. As such Section 58 of the Constitution states that no member of Parliament is criminally or civilly liable for anything they say in the Parliament. The PPIP Act goes into further details on freedom of speech, forbidden acts in Parliament and how the disciplinary procedures work. Procedural fairness is an important aspect raised in the PPIP Act in line with the Constitution. The rules of Parliament give the speaker of Parliament, in rule 52, the discretion to decide on appropriate action to take against members of Parliament who transgress the decorum of Parliament, in this instance Mbete decided on a disciplinary hearing.

Section 33 of the Constitution preserves the right that everyone has to administrative action that is lawful, reasonable and procedurally fair. Administrative action can be exercised by an organ of state such as Parliament. In this case the administrative action would be the decision to haul EFF MPs before the committee. Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. The doctrine of legitimate expectation affords the right to a fair hearing. Section 6 of the Promotion of Administrative Justice Act gives guidance as to how administrative decisions should be made. It stipulates that a court may review and set aside an administrative decision if it can be shown that the administrator was biased or reasonably suspected of bias, the action was procedurally unfair, the action was based on an ulterior purpose or motive, the action was in bad faith or it was arbitrarily given. These are the aspects the EFF would have to raise if it were to take the matter to court.

The question then becomes will the court interfere in the machinations of Parliament? This will have to be weighed against the doctrine of separation of power, principles of legality and constitutionalism. The most recent case that comes to mind is when the DA took Parliament to court to rule on the matter of the unconstitutionality of the rules of Parliament in relation to the aspect of no-confidence motions.

Many questions still linger. Could this be much ado about nothing since only one MP since 1994 has ever been suspended? Could the EFF just be concerned about being “managed” by the ANC? Is it time to think of creative ways to structure Parliament in a way that ensures better representation for minority parties? Maybe. Will it have the desired effect? Not necessarily. One thing that is certain is that it is going to be a long five years in Parliament.

Walter Bhengu is a non-practising attorney and aspirant academic with law degrees from the University of Fort Hare and Stellenbosch University.