via Speaker of Parly torches storm | The Financial Gazette – Zimbabwe News by Clemence Manyukwe 13 Mar 2014
JACOB Mudenda, the Speaker of the National Assembly, made a ruling last week that has far reaching consequences on freedom of speech during parliamentary debates. A former chairman of the Zimbabwe Human Rights Commission, Mudenda has threatened to lift the immunity enjoyed by Members of Parliament in certain circumstances.
He has also given his own interpretation of the law in relation to freedom of speech in Parliament which appears to advocate for the muzzling of lawmakers. “The Privileges, Immunities and Powers of Parliament Act (Chapter 2:08) that deals with offences, which constitute contempt, states that a member may be held to be in contempt if he or she presents to Parliament or a committee any false, untrue, fabricated or falsified document or thing with intent to deceive Parliament or a committee,” said the speaker.
This was after a Movement for Democratic Change (MDC-T) MP for Mbizo, Settlement Chikwinya alleged in Parliament that the commissioner general of the Zimbabwe Revenue Authority, Gershem Pasi was earning more than US$300 000 per month. While Pasi has since dismissed the claim, he has not revealed his actual salary. Interestingly, others who felt offended by what they deemed to be exaggerated salary figures mentioned in Parliament have since set the record straight by revealing their actual monthly takings.
Following protests from Pasi, Chikwinya has since been cautioned by the speaker for making inaccurate statements. The Mbizo MP is among a group of fearless lawmakers from across the party divide that have livened up debate in the National Assembly. Other firebrand MPs to emerge in this current Parliament include Willias Madzimure (MDC-T), Irene Zindi (ZANU-PF) and Temba Mliswa (ZANU-PF).
A topical issue that has seized the lawmakers during debates has been the rot within State-run institutions; itself a reflection of the corruption that has become perverse in Zimbabwe. As the lawmakers were girding their loins for the anti-graft battles that lie ahead, Mudenda’s ruling is sure to restrict parliamentary debate. He has already caused considerable disquiet in Parliament considering that his ruling came against the backdrop of a parliamentary motion condemning corruption and seeking to establish a committee to investigate graft.
Gilbert Dzikiti, a political analyst, said the speaker was trying to bury corruption into the sands of bureaucracy and patronage thereby trampling on the rights of the majority of Zimbabweans who are living in poverty without essential services or any productivity. Dzikiti said leaving the issue of corruption and salarygate solely in the hands of the Executive means that it would continuously remain work in progress with no tangible results.
“Our Parliament must have verve and spine as well as grit. Parliament with the powers that sent Roy Bennett to prison for the assault of Patrick Chinamasa should with the same gusto and independence deal with the issue of corruption firmly through the establishment of a tribunal as the Executive lacks the will and conviction to deal decisively with the evil cancer of corruption,” said Dzikiti
Harare Residents Trust director, Precious Shumba, said lawmakers have a responsibility to express the concerns of the citizens during debates, without any hindrance. “Those who are at the forefront of denying the people their voice have a lot to hide, so pressure must be exerted on them to stop interfering with public accountability processes,” said Shumba.
At the crux of the debate that has followed Mudenda’s ruling is whether the speaker was within his rights to set parameters regarding the extent to which MPs can enjoy freedom of speech. Much of the debate revolves around the interpretation of the supreme law of the land, the Constitution.
Section 148 of the new Constitution says that the President of the Senate, the Speaker and MPs have freedom of speech in Parliament and in all parliamentary committees. It goes further to say that while they must obey the rules and orders of the House concerned, they are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything said in, produced or submitted to Parliament or any of its committees.
For persons unjustly injured by what is said about them in the National Assembly, the charter provides for a right of reply, through the Speaker of Parliament or President of the Senate in accordance with an Act of Parliament. In a way, the new Constitution attempts to protect the MPs’ freedoms while at the same time providing for redress in the event that other parties are unjustly injured.
It is for this reason that the Speaker’s ruling has not gone down well with some sections of society. All the arms of government are currently under pressure to tame spiralling corruption in the face of the Executive’s ineptitude and suspected collusion in graft-related activities.
Since the explosion of the salarygate scandal whereby executives in parastatals are taking home obscene salaries while leaving the State enterprises to crumble, no ministry has taken decisive action except for the Minister of Information, Media and Broadcasting Services Jonathan Moyo and his deputy Supa Mandiwanzira who have exhibited zero tolerance to underhand activities in parastatals under their aegis.
Zimbabweans are therefore looking up to the Parliament to deal with the rot, hoping that decisive action on the matter would result in improved service delivery and reduced dependence by the parastatals on the fiscus.
Former deputy minister of justice and legal affairs in the inclusive government, Obert Gutu, described Mudenda’s ruling as an attempt to unilaterally gag lawmakers. “With all due respect to Mr Speaker, Sir, it is unlawful and indeed blatantly unconstitutional, for him to seek to unilaterally gag legislators from debating pertinent national issues in the august House,” said Gutu.
“The standing rules and orders of Parliament are the guiding barometer in directing how Parliamentary debate should be conducted. For as long as a legislator’s debate falls within the said rules, the Speaker cannot and indeed, should not be permitted to use his own whims and fantasies to stifle robust Parliamentary debate. The Executive should not be eunuch and trivialise Parliament,” he added.
In his handbook, ‘A guide to media law in Zimbabwe’, University of Zimbabwe law professor, Geoff Feltoe, said Parliamentarians cannot be sued for statements made in the National Assembly as they have absolute privilege in respect of all their utterances made during debates.
“They cannot be sued for any defamatory statements, which they make during Parliamentary debates…The reason why the Parliamentarians are given such absolute protection against legal actions for defamation is so that they can engage in free and vigorous debate without the constraints which would apply if they could face lawsuits for defamation arising out of what they have said in Parliament,” wrote Feltoe.
The law professor said it was obviously in the public interest that Parliamentary proceedings be as fully reported so that the public can keep abreast of what their elected representatives are saying and the subsequent decisions. The press was also said to be exempted from defamation lawsuits through qualified privilege when covering Parliament, provided that their reportage is not motivated by malice.
This means that the press will not be held liable for defamation if it gives a fair, accurate and balanced account of Parliamentary proceedings, even if the account includes details of a defamatory statement made by one of the Parliamentarians during these proceedings.
“The press can publish the statement, attributing it to the Parliamentarian. It does not have first to check the accuracy of the statement. If the law obliged the press to check the accuracy of all utterances made by Parliamentarians before publishing, very few details of Parliamentary proceedings would ever be published,” further wrote Feltoe.
As one of the three arms of government, the legislature should fight to protect its independence in the same way the Executive and the judiciary safeguards theirs. As it is, it would appear the Executive’s influence is being brought to bear on the Speaker. What therefore remains to be seen is how far Mudenda is prepared to go in undermining his role in order to please another arm of the State.