SPEECH BY PETER A C HENDRICKSE DURING POWERS AND PRIVILEGES DEBATE

17 February 2004

This year we celebrate 10 years of Freedom and along with that the 10th anniversary of the very first democratic Parliament of South Africa. How appropriate it is that today we meet to discuss a bill that forms, and give expression, to the very democratic nature of this Parliament – the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill.

At the very outset speaker, allow me to dedicate this debate to a remarkable freedom fighter, comrade, colleague and former chairperson of this committee, Cde Peter Mokaba.

It was a privilege serving with him.

There was a time in our terrible past when Parliament was sovereign. As such it was used or rather abused to visit all types of iniquities on our people. Can we forget how the Senate was immorally enlarged to remove Coloured people from the voter’s role? How year after year, Parliament was used to keep Robert Sobukwe on Robben Island.

Today we have a Constitution as the supreme law of the land under which, and in terms of which, our Parliament too must operate, thus the need for this bill.

Speaker, we need to read the bill in conjunction with the Committee report published in the ATC on **** . I shall be referring to both the bill and the report as the report highlights matters that must be further addressed by the Rules committee and the Constitution Review Committee.

Chapter 1.

Deals with definitions

Chapter 2 Provides:

• A description of what constitutes the precincts of Parliament
• That the Speaker and NCOP Chairperson exercise joint control over Parliament. How this is done must be dealt with in the Rules
• That Members of the Security Services enter into or remain in the precincts to perform policing functions only with the permission and under the authority of the Speaker or the Chairperson.
  • ( Members might recall we had a problem last week when the Security service acted without the permission of the Presiding officers results in delays in the Parliamentary work.
• The execution of process or warrants of arrest may also only be done with the permission of the Speaker/Chairperson.

Chapter 3 deals with the Privileges, Immunities, Independence and Protection of Members and Parliament

• The Constitution provides for Freedom of Speech in Parliament and Provincial Legislatures, subject to the RULES and ORDERS.
• The BILL therefore does not deal with the form and manner in which this freedom is exercised but the committee recommends that the Rules Provide for this.
  • As the Constitution does not specifically provide for Freedom of Speech in joint sittings of the Houses of Parliament, this is provided for in Clause 6.
    • It is recommended that this Lacuna be referred to the Constitutional Review Committee.
    • A further lacuna is that the Constitution does not provide for a Deputy Minister having Freedom of Speech in a Joint Committee
    • Another matter is that an Official in the National or a provincial Executive has freedom of Speech in the NCOP and its committees but not in the NA. We believe that there should be consistency in the Freedom of Speech provisions for the Houses.

Clause 7 Prohibits acts in respect of Parliament and Members.

Acts that are prohibited include the following:

• A person may not impede the function of Parliament,
• Assault or threaten a member because of his or her conduct in the House
• Cause a disturbance while a House/committee is sitting.
• Fail to comply with an instruction by a duly authorized official.

Clause 8 deals with Improper influence of Members

• A person may not by fraud, intimidation, force, insult, or threat of any kind or by offer or promise of inducement or benefit
  • Influence a MP in the performance of his or her duty
    • To be absent
    • Compel a MP to be for or against something pending before the House/Committee.
• A Member may not ask for or receive or accept any fee, compensation, gift, reward, favour or benefit for:
  • Voting in a particular manner,
  • Or not voting
  • Promoting or opposing anything pending, or
  • For making a representation to a House/Committee

Clause 9 Attendance before court:

• Provides that a Member cannot be compelled to attend a court on a civil matter or as a witness in a criminal matter, when the Speaker/Chairperson has issued a certificate stating that the Member is required to attend to business at parliament.

Chapter 4 Disciplinary Action Against A Member:

This chapter provides that a House has all the powers that are necessary for enquiring into and pronouncing upon any act or matter declared by or under section 13 to be in Contempt of Parliament by a Member and taking the disciplinary action provided therefore.

A Committee must be established to deal with all enquiries referred to it. This enquiry needs to be conducted in accordance with a procedure that is fair and reasonable.

The Adhoc Committee recommends that the Rules need to provide for these procedures and they should be in place when the legislation takes affect.

It is the House that finds a Member guilty of Contempt and provision is made for sanctions, amongst others, that range from · A formal warning

• An apology to the House
• The withholding for a specified period of certain facilities provided to Members
• The removal, or suspension for specified period, of a Member from any Parliamentary position occupied by the Member
• A fine not exceeding the equivalent of one months salary and allowances
• The suspension, with or without remuneration, for a period not exceeding 30 days

It further provides that a Member may not be suspended unless the House has found that the Member is guilty of a serious or repeated contempt and that none of the other penalties will be sufficient.

• The committee also recommended that, as far as is possible, unparliamentary behavior be CODIFIED in the Rules

Chapter 5 Witnesses

This chapter sets out how Witnesses are subpoenaed to appear before a House or Committee.

It provides amongst others that a person can only be subpoenaed by the Secretary to Parliament:

• On the instructions of the Speaker or the Chairperson, or
• The Chair of a committee with the concurrence of the Speaker/Chairperson

It also makes provision for the administering of an Oath or affirmation.

A very important aspect is covered in Clause 16 dealing with the Privileges of Witnesses.

A witness being examined under Oath or Affirmation may be required to answer any question or to produce any document, despite the fact that doing so would incriminate themselves or would tend to expose them to criminal or civil proceedings, or damages.

Provision is made that evidence given under Oath or Affirmation by a person may not used against that person in any court or place outside Parliament except where the person stands trail on charges of perjury

Clause 15 provides for certain limitations regarding the type of subject matter about which a witness may be questioned or the type of document that a witness may be requested to produce.

• These Limitations should be set out in the Rules.
  • This could deal with matters, amongst others, such as;
  • Classified documents,
  • Sensitive information of a commercial or economic nature
  • The private affairs of individuals or institutions supplied in confidence,
  • Matters which are, or may become the subject of sensitive negotiations with governments or other bodies

Clause 17 makes it an offence for a person subpoenaed not to appear or for failing to remain in attendance.

It is also an offence to refuse to be sworn in, or without sufficient cause, fails to answer fully and satisfactorily all questions lawfully put.

It is also an offence for a person to threaten or obstruct a person in respect of evidence to be given, as well as assaulting or penalizing a person on account of the evidence they give or intend giving.

Chapter 6. Publication and broadcasting.

Deals with the broadcasting of proceedings as well as the publication of the proceedings. This will be further dealt with by one of my colleagues.

Chapter 7. General

Protection of members of the public

An entirely new and innovative provision is that of providing members of the public that are aggrieved by a statement or remark made by a Member or a witness in or before a House or Committee about that person, to have a response recorded.

The relevant committee would consider such request, and if approved, the response will be published in the appropriate Parliamentary paper.

The act provides for fines, imprisonment or both for a period not exceeding 3 years in the case of some offences and up to 15 years for other offences.

Chapter 8 Provincial Legislatures

This chapter makes provision for certain clause to be made applicable to Provincial Legislature and their members

Rules

There are a number of other matters that the committee has expressed itself on that I would like to repeat for the record.

The report of the committee further recommends that:

• Reflections on the Judiciary be dealt with in the Rules
• The Rules committee consider whether reflections on Members of another House or Legislature, as well as, the deliberate misleading of the House should be declared Contempt.
• Loss of Membership and other sanctions for non-attendance of a House or committee be dealt with in the Rules
• Members Conflict of Financial Interest be dealt with in the Code of Conduct
• That a procedure for initiating disciplinary action be contained in the Rules.

It is important that the Report of the committee be read with this bill as it contains a number of recommendations related to the implementation of this bill.

This bill is the result of many consultations, discussions and other forms of input from way back in 1997. We have gone through 16 drafts.

One of the people involved since then to date has been Mr. Anton Meyer, former Law advisor to parliament and drafter of the bill. I would like to thank him for his willingness at all times and often at short notice to make himself available both to me and to the committee.

Thanks also to Ms Adhikari, at Parliament’s Legal services.

Mr. Eglin, it was indeed a pleasure serving with you, being able to tap into your experience. May I wish you well in your retirement.

Madam Speaker it is sincere pleasure to recommend the Bill to the House.