It is unconstitutional for the police to enter the chambers of Parliament and arrest or remove MPs

For the second time in two years, members of the Zimbabwe Republic Police were called into the House of Assembly chambers to remove opposition Members of Parliament (MPs). On 26 October 2016, police were called in to remove an opposition MP Costa Machingauta for “dressing inappropriately”. He was wearing a jacket with the Zimbabwean national flag colours at the height of the #ThisFlag movement. When the Deputy Speaker asked him to leave and he refused, the Sergeant-at-Arms was instructed to remove him, but fellow MPs protected Machingauta, and the Sergeant-At-Arms enlisted the services of the police. History repeated itself again on 22 November 2018 when, during the 2019 budget announcement, police were called in by Speaker Advocate Jacob Mudenda to evict opposition MPs for defying his order that MPs should stand up for President Mnangagwa as he entered the chamber. According to the Speaker, he would not have anyone disrespecting the President. Beyond this disrespecting and insulting the President issue being overstretched and taken too far in this country, fundamentally worrying is the perpetuating of a serious breach of the Constitution in allowing police to enter the chambers of Parliament. Compounding the worry is that it is the Head of Parliament – the Speaker himself, who is leading this lawlessness and constitutional violation. Parliament is tasked in section 119(1) and (2) of the Constitution to protect the Constitution and promote democratic governance in Zimbabwe, but also to ensure that provisions of the Constitution are upheld by the state and all its institutions. The Head of Parliament cannot therefore be seen to be undermining Parliament, for in so doing he is undermining the ability of Parliament to police other branches of government.

Can MPs be temporarily removed from Parliament for unruly behaviour?

Yes. Members of Parliament who cause disturbances may be forcibly removed from the chamber if need be, but only through Parliament’s own processes and personnel. According to Standing Order Number 110 “Any member who disregards the authority of the Chair or persistently and wilfully disrupts the business of the House commits an offence for which he or she may be suspended from the service of the House”.  Order 108 addresses disorderly conduct in the chamber. Standing Order Number 112 states that “Any member who wilfully disobeys any lawful order of the House and any member who wilfully or vexatiously interrupts the orderly conduct of business in the House shall be guilty of contempt”. Further to the rules, the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] grants Parliament the powers to hold members in contempt of Parliament. All those are avenues for Parliament and the presiding officer to deal with errant MPs. The presiding officer will of course first have to inform the concerned MPs which rule(s) those MPs are “wilfully” disobeying or on the basis of which the MPs are in contempt.

Can they be removed by the police?

Never. The rules of Parliament, as perfectly understood, do not give any authority to the invasion of a police force or details into the chamber. There is no such provision. Beyond rules, within the precincts of Parliament police officers cannot come in to interfere with MPs, as an incident of the separation of powers. An executive-controlled force cannot interfere with discharge of duties by an MP in Parliament.

Arguments of condoning chaos in Parliament when law enforcement is not used are misplaced. When Members of Parliament cause chaos, existing rules provide presiding officers with the authority and legal means to act fairly but decisively against perpetrators. Parliament has a Sergeant-at-Arms who enforces law and order in the chamber. If the Sergeant-At-Arms is overwhelmed, then Parliament has security to step in and assist – not the police. And a caveat is apt right there: “engaging in robust, raucous and even chaotic debate in Parliament does not disrupt proceedings. Making it altogether impossible to participate in any form of debate does”. So even those existing mechanisms are not a wanton weapon for political use or abuse.

In the October 2016 incident, then Deputy Speaker Mabel Chinomona attempted to invoke section 25 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] (“arrests without warrant”):

“Any person who creates or joins in any disturbance in or within the vicinity of Parliament whilst Parliament is actually sitting may be arrested without warrant on the verbal order of the Speaker and kept in the custody of an officer of Parliament or a police officer until a warrant is issued for his detention in prison”.

She went on to state that “I did not call in the policemen to arrest but to help the Sergeant-at-Arms to remove the person only – just that”. With respect, that is a wrong understanding and usage of section 25. Section 25 cannot be invoked to unleash police on MPs on the House floor. In the Act, where a provision refers to Members of Parliament, the provision expressly says so. In fact, the definitions section of the Act defines “member”, a term which carries a distinct meaning from “person”. A “person” within this context is someone who may find himself in Parliament but not a Member of Parliament. There are several provisions within that statute that use the terms “member”, “person” and “officer of Parliament” within the same provision. This makes it clear that these terms are referring to different classes of individuals. By way of example, one can look at sections 4; 5; 7; 14; and the Schedule to the Act.  

However, one may also, quite legitimately, argue that the specific mention in certain sections that “person” excludes “a member” may mean that in other instances, “person” may include a member. For this, one can point to section 5(2) which states that “Subsection (1) shall, subject to section thirteen, not apply to a person, other than a member, […]”. Then section 18(1), for instance, specifically mentions that “No member or person who is the employer, a partner or in the service of a member, whether in the practice of the profession of legal practitioner, parliamentary agent or otherwise […]” but goes on in section 18(2) to say “A person who contravenes subsection (1) shall be guilty of an offence and liable […]”. That “person” in 18(2) would no doubt encompass the “member” or “person who is the employer, a partner or in the service of a member”. Should this latter interpretation be correct, then section 25 falls foul of section 148 of the Constitution. It is unconstitutional. I say this, of course, cognisant of the rule of interpretation in law that enjoins that interpretation falling within constitutional bounds should be preferred over one that does not. Whatever the case may be, the Constitution can never be superseded by a subsidiary statute. The import is that either way, police can under no circumstances enter the chambers of Parliament to remove or arrest MPs, not even to go in and put MPs to order – whatever that may entail.

As for the difference that the Deputy Speaker attempted to draw on arrest versus removing from chambers, that does not lend to her case. The point is not what form or manner of order a police officer comes in to enforce, but that a police officer cannot at all enter the chambers to enforce anything.

Why would section 25 be unconstitutional?

Parliamentarians enjoy immunity. The immunity is absolute. Section 148 of the Constitution provides for the privileges and immunity of Parliament as follows:

“1. The President of the Senate, the Speaker and Members of Parliament have freedom of speech in Parliament and in all parliamentary committees and, while they must obey the rules and orders of the House concerned, they are not liable to civil or criminal proceedings, arrest or imprisonment or damages for anything said in, produced before or submitted to Parliament or any of its committees.

2. An Act of Parliament may--

a. provide for other privileges, immunities and powers of Parliament and its Members and officers;

b. define conduct which constitutes contempt of Parliament, whether committed by Members of Parliament or other people; and

c. provide for a right of reply, through the Speaker or the President of the Senate, as the case may be, for persons who are unjustly injured by what is said about them in Parliament;

but no such Act may permit Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other than a fine, for breach of privilege or contempt of Parliament.”

The Statute contemplated by the Constitution is the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08]. It provides in section 5 that:

“(1) There shall be freedom of speech and debate or proceedings in or before Parliament and any committee and such freedom shall not be liable to be impeached or questioned in any court or place outside Parliament.

[…]

(3) It is declared for the avoidance of doubt that a member shall not be liable to any civil or criminal proceedings, arrest or imprisonment or damages for anything said in, produced before or submitted to Parliament or any of its committees.”

These provisions are rooted in the facilitation of Parliament to conduct its business in speech and deeds without any fear or restriction and without any interference. Freedom of speech is critical to the process. The conduct of parliamentary business is principally through a deliberative process – in one form or another. Inclusivity and accommodation are key, including of different kinds and forms of political expression. MPs in fact have the right to protest as an incident to their freedom of expression, whether in Parliament chambers or outside. This means their freedom of expression and their right to protest inside Parliament are far reaching and wide. Their protest can in fact be the way they choose to express representation of the people who elected them. Democracy is tolerant. And democracy can be messy. These are the virtues and beauties of the system of governance we have adopted unto ourselves. This can only change if we renegotiate the social contract, that is, the Constitution that establishes our system of governance.

The tendency to use the security sector to assault rights, freedoms and privileges runs counter to our democracy. As the South Africa Constitutional Court has ably articulated, “Parliament is also entrusted with the onerous task of overseeing the Executive. Tyrannical rule is usually at the hands of the Executive, not least because it exercises control over the police and army, two instruments often used to prop up the tyrant through means like arrest, detention, torture and even execution. […] Needless to say, for Parliament properly to exercise its oversight function over the Executive, it must operate in an environment that guarantees members freedom from arrest, detention, prosecution or harassment of whatever nature. Absent this freedom, Parliament may be cowed, with the result that oversight over the Executive may be illusory.”

Parliament should thus be able to conduct unrestrained debate about matters of public importance. It is for this reason that immunity from criminal and civil sanctions is accorded to MPs to remove the fear of repercussions. It is for that very reason that Parliament is given the power to regulate its own conduct and processes. The import and purpose of section 25 of the Act, if it is accepted to allow the arrest and removal of MPs from chambers by the police, runs counter to these democratic virtues, and diametrically counter to constitutional dictates. That provision effectively allows a member to be arrested for what he or she says or does on the floor of Parliament. Such is the broad and wide-sweeping nature of the provision. By no means is this to suggest MPS can be disruptive without consequence. Mechanisms for control exist. Without addressing the underlying political motives, one may recall the bill of attainder passed by a Parliamentary Committee that imprisoned the late Roy Bennet at Chikurubi after the infamous confrontation with the then Justice Minister Patrick Chinamasa in 2004 on the floor. Our Constitution has since changed, however; it now proscribes criminal sanctions beyond a fine for contempt of Parliament.  

Standing Orders of Parliament? Code of Conduct and Ethics for Members of Parliament? Never mind what those rules say about protesting Members of Parliament; no rule can at any rate and in any event trump constitutional rights and dictates. Even if there were a violation of the rules, the presiding officer cannot enforce compliance by breaking the Constitution. The power of Parliament to regulate its procedures and proceedings can never fall outside the four corners of the Constitution. The Constitution is clear and emphatic: it is the supreme law of the land superseding all (section 2(1)), and the obligations of the Constitution and the Bill of Rights are binding to all and sundry, state and non-state, juristic and non-juristic, branch of government and department of state (sections 2(2) and 44).

As to the nature of Standing Orders, section 139(3) of the Constitution demand that “The procedures and processes of Parliament and its committees, as provided for in Standing Orders, must promote transparency, must encourage the involvement of members of all political parties in Parliament and the public, and must be fair and just”. The obviously worrying pattern of targeting opposition MPs in the unlawful use of police over them is reflective of our country’s toxic politics. No national interest can be served by this. Once voted into Parliament, MPs become constitutional office bearers, discharging national duty. Parliamentarians being the direct representative of the people – the ones in whose name state power is exercised, it follows that assaulting members’ privileges and immunities is an assault on the very people on whose ticket they are in Parliament.

The illegality of using police in Parliament is not without precedent. When members of South Africa’s Economic Freedom Fighters were ejected from the National Assembly by plain clothes police officers during President Zuma’s State of the Nation Address in February 2015, at the orders of Speaker Baleka Mbete, the Democratic Alliance took the matter for judicial determination. The Western Cape High Court ruled in Democratic Alliance v Speaker of the National Assembly and Others 2015 (4) SA 351 (WCC) that section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, a provision substantially similar to our section 25 of the Immunities Act, was unconstitutional insofar as the word “person” encompassed MPs, and to the extent that section 11 permitted a member to be arrested for conduct that is protected by the Constitution.  This was held to infringe the immunities provisions of the Constitution as well as free speech. Importantly, the court found that: “The primacy of a Member of Parliament’s right to freedom of speech and more particularly the right to articulate the needs, views and political and economic attitudes of their constituency freely and without fear has been constantly recognised by our Court”. On referral to the Constitutional Court for confirmation of the declaration for invalidity, the Constitutional Court in Democratic Alliance v Speaker of the National Assembly and Others 2016 (3) SA 487 (CC) confirmed the constitutional infringement, and chose to cure the constitutional variance by reading-in the words “other than a member” after mention of the word “person” in section 11 of the Act. This meant the provision would continue to operate to non-members who do not enjoy Parliamentary immunity. The import of this is that whatever formulation is given to the word “person” in our statute, it is unconstitutional to use that section to unleash the police in Parliament to arrest or remove Members of Parliament. However one takes it, that conclusion is inescapable at law.

Advocate Mudenda is a lawyer. A lot of politicians in Zimbabwe are. Are we not supposed to get better governance in procedure and substance then? Alas. But I would give them the benefit of the doubt and courteously attribute their behaviour to failure to read the law.  Yet, unfortunately, the truth is that some of them know the law and they are aware when they are violating it. Just that they don’t give a rat’s ass. We are disrespecting and devaluing our institutions.

COURTING JUSTICE IN NAMIBIA: AT THE SUPREME COURT

Formerly South West Africa, Namibia has a population of about 2,3 million people. A nation that bore the brunt of apartheid and being among the last states to gain independence in Africa, the country has a history of transformation to tell. The law has been at the center of that transformation. Thanks to the University of Cape Town’s Democratic Governance and Rights Unit, I had the opportunity to witness this first-hand.

Left to right: Musa Kika (University of Cape Town); Mrs Yvette Hűsselmann (Legal Researcher at the Supreme Court); Ms Nelli Tjahikika (Deputy Registrar of the Supreme Court); Vera Kegel (Intern Legal Researcher from the Netherlands), and Michael Rhimes (Oxford University) in Courtroom B.

I arrived in Windhoek, Namibia on 19 September 2015. On the 21^st of September, I walked together with my colleague, Michael Rhimes from Oxford University, into the Supreme Court building. The Supreme Court building is a majestic structure in the city; an architectural piece of art lying next to the Hilton Hotel, and close to the city’s museum. It overlooks Independence Avenue, the major street cutting across the relatively small city. Just as the Namibian law is developing under the leadership of the Supreme Court, Windhoek itself is a growing city. It is a city under construction. One notices the conspicuously sprouting construction on every corner of Windhoek. What makes Windhoek particularly a city of note for those in the legal profession is that it is Southern Africa’s judicial capital, housing the formerly SADC Tribunal, now SADC Administrative Tribunal.

We had just arrived with the facilitation of the Democratic Governance and Rights Unit (DGRU) as part of the Southern African Judicial Assistance Programme to assist the Chief Justice and the Judges of Appeal with legal research. Mike and I were introduced to the staff of the court, then the Deputy Registrar, then to the Judges of Appeal and lastly the Chief Justice who had been away touring the country’s magistrates courts when we arrived. And what a welcome we received. Judicial clerking was back for me, after having done my first clerking for Justice Malcolm Wallis of the Supreme Court of Appeal in South Africa.

The Chief Justice of Namibia, Justice Peter Shivute, relatively young, epitomises energetic leadership in a judiciary engaged in processes of both transforming the law and transforming the judiciary itself.  As if being the seat of the SADC Administrative Tribunal is not enough to make Windhoek a city of legal note, Justice Peter Shivute is also currently the Chairman of the Southern Africa Chief Justices’ Forum. The Deputy Chief Justice is Justice Damaseb, who dually serves as Judge President of the High Court. A hands-on and enthusiastic judge, Justice Damaseb has played a central role is facilitating the smooth-running of the High Court through ongoing reform of the High Court processes. The Supreme Court has also benefited immensely from his presence.

The two other permanent judges, Justices Dave Smuts and Sylvester Mainga are both driven and motivated to see a functional and smooth-running Supreme Court. Smuts JA, in whose chambers I seat, is a very enthusiastic and engaged member of the bench. He is always in search of ways of making the court system work effectively. I share with him one particular attribute: affinity to practicality in dealing with legal problems. Working with him has been most rewarding. He passionately tells of his work in apartheid Namibia, and his law school days at Stellenbosch University in South Africa, and then at Harvard Law School in the United States, and each time he walks into his office, he makes a stop at my desk for a chat.

To assist the permanent judges, several ad hoc judges are appointed each term. Thus far the court has had the benefit of being served by some of Southern Africa’s most illustrious judges. These include Justice Strydom, who is a former Chief Justice of Namibia; Justice Chomba from Zambia; Justice Kate O’Regan who has served on the South African Constitutional Court for 15 years; Justice Sandile Ngcobo, former Chief Justice of South Africa; and senior judges from Zimbabwe, among them Justices Mutambanengwe, Ziyambi and Garwe.

I had the opportunity to meet Retired Judge Mutambanengwe at the court during an informal visit. Retired, and having completed his acting stint, he twice acted as Chief Justice at the Namibian Supreme Court. In the Supreme Court boardroom where we sat the octogenarian Justice Mutambanegwe who made his mark in the legal fraternity in pre-independence Zimbabwe nostalgically chronicles his days in practice in Harare at a law firm he founded, which he later left to join the bench.

South Africa’s celebrated jurist, the former Chief Justice Ismail Mohamed at one point served as the Chief Justice of Namibia, before his South African service. Back in South Africa, just the month before my arrival in Windhoek, I had the privilege to receive the Ismail Mohamed Law Reform Essay Award in Centurion for an article I wrote in 2014 about the efficacy of the Public Protector’s office in that country. I had come out first in the LLB category nationwide. Justice Mahomed’s idea of justice strikes a chord to this day. At the center of the Supreme Court building, which has come to be known as the memorial garden, a bronze bust of the great jurist Ismail Mahomed stands to his memory.

Upon arrival at the court no time was wasted. Mike and I were immediately given access to all the court records of the matters on the role for the term. We resolved to divide cases among ourselves, and work began. This, as one would imagine, has been an extremely rewarding experience. Through this experience, we have seen the law in action, and have dealt with cases knowing that people’s fate rest in the legal research and counsel that we provide. Our research is invariably followed by meetings with the judges hearing the matters to discuss and deliberate, at times leading to more pointed and further research. Quite unusual for a legal setting, the Supreme Court of Namibia’s small staff and judges complement forms a closely-knit community. For instance, most recently all the staff and judges of the court - from the lowest ranking cleaner to the Chief Justice, gathered on the same table for a meal to celebrate the departure of a fellow interning legal researcher from the Netherlands. This culture, one would not find at many Supreme Courts, not to mention the lower courts.

On 12 October 2015, the first day of the new term at the court, as the judges assembled in the Chief Justice’s chambers, we assembled in one of the researchers’ offices, ready for court. Making our way into Court B, we positioned ourselves in front of the judges’ bench, and for the first time had the opportunity to experience court proceedings from the side of the bench. As a researcher at the court, one sits with the judges in all the cases being heard for the entire term, including when judgments from the previous term(s) are being handed down.

Court B! I was reminded of the documentary “Mugabe and the White African”. When the then SADC Tribunal was still sitting, the case that was to break the Tribunal, the land reform matter of Mike Campbell v Government of the Republic of Zimbabwe, was heard in this very courtroom. There, unspeakable things happened: then Zimbabwe’s Deputy Attorney-General Prince Machaya and his team staged a disgraceful and unprecedented walk-out while the court was in session, because the judges would have none of his team’s endless antics to seek postponement of the case for the umpteenth time. My country, Zimbabwe, has a long way to go to respect justice and the rule of law to this very day.

Namibia has made huge strides in using the law to turn around its fortunes, and in creating an advanced legal system in the direction of the rule of law and equality. The country has an expansive Constitution - one of the most liberal on the African continent, and judges and lawyers have used this over the years in developing progressive jurisprudence. the close connection between Namibia and South Africa is evident in the law: South Africa’s legal system has so much influence on Namibia’s. Practitioners still largely rely on South African case law, including the judges, but the High Court rules took a stance and included a provision requiring that where foreign cases are cited, counsel must certify that they could not find any local authority to use, and that there is no local authority to the contrary of the foreign authority cited. The Chief Justice and the Deputy Chief Justice have particularly taken it upon themselves to ensure that the precedential value of local jurisprudence is appreciated and developed upon. The Deputy Chief Justice has been vocal about this in court, in his judgments, and in his Chambers as we discussed our legal opinions. The Deputy Chief Justice Damaseb, what a caring man! I recently got a call from his clerk. I was to report to his Chambers immediately. Maybe I messed up a legal opinion? I pulled the chair to sit in front of him. “I just wanted to check on you and find out how work is going – I have been away for a few days”, he said. I will not forget that day.

Left to right: Michael Rhimes; Justice Frederick Chomba; Chief Justice Peter Shivute; Deputy Chief Justice  Petrus Damaseb and Justice Dave Smuts. When this photo was taken (after a court session) I had flown out to Zimbabwe to take my bar examinations. 

Through interacting with the judges, through the court processes, one seems the genuine desire to transform the country’s law for the better, disentangling the shackles of apartheid and creating a society based on the rule of law, constitutionalism and equality. The Supreme Court is implementing a case management system to enhance its capacity to deal with cases that come to the court. This is a tried and tested way of handling cases that has been effectively used in courts in South Africa, and many judiciaries across the region are still to adopt it.

Going forward, interesting times lie ahead in Namibia’s judiciary. The Office of the Judicary Act, 2015, now awaits presidential assent after which the judiciary will become independent as the Office of the Judiciary. This is a battle won by the judiciary. With the establishment of the Office of the Judiciary, the Chief Justice will be the head of the judiciary, and will not answer to the Ministry of Justice. The Office of the Judiciary will have both financial and administrative autonomy, with an independent secretary/director of finance. Preparations are fully underway to facilitate this transition. Under this arrangement, only the District Courts will remain under the control of the Ministry of Justice.  One senses the excitement and anticipation in the judiciary and the administrative staff on the prospect of this development. Beyond the desire of independence on the part of those involved in the judiciary, this move ought to be celebrated as an advancement of justice in Namibia. This is a judiciary seeking complete independence to dispense justice with full independence, without fear or favour.

With our little contribution to the court as researchers, and the court having experienced the benefit of having researchers, the Supreme Court has expressed firm interest in establishing a proper and fully-fledged research clerkship programme. We are currently hands-on on this and are making our input towards this worthy initiative. This would go a long way in providing the judges with the necessary assistance in their duties in a substantial way, and the court is planning to launch this programme in 2016.

On our part, we are privileged to be interfacing with the dispensing of justice in Namibia, and to be learning the law in action in such a setting as the Supreme Court. For me, this has been a most enriching experience, professionally and otherwise. In our small way we have made some substantial contributions to the work of the court. In turn, the court has taught us the law and about the law in a substantive and practical way. I am able to say that my legal research skills have grown at a rate that I have never experienced before, within a very short space of time. I have learnt that there are things one will not learn anywhere else, except in the courtroom, and this inside view of the court will become instrumental in practice. In short, the Supreme Court is without doubt the best place I have studied the law in action. On a higher deliverable, having the opportunity to contribute to the country’s jurisprudence, though assisting the judges in solving the nation’s legal problems, is to be cherished.

The DGRU’s Judicial Assistance Programme is a worthy investment into African judiciaries, and into developing young lawyers who will make an impact in the legal field. Indeed, the judiciaries bear the primary duty to serve the interests of justice, and to dispense justice to their countries. Notwithstanding, it will take the active and proactive intervention but stakeholders and institutions such as the DGRU, to lend their technical support and knowledge where such assistance can be put to good use. Mike and I have a few more months in Windhoek, Namibia and seemingly, interesting times lie ahead as we continue assisting in the dispensing of justice to those who need it. I will share about our non-judicial escapades in this land of the brave separately.

Musa Kika

November 2015, Windhoek Namibia.

Postscript:

We left Windhoek just before Christmas in December 2015. Mike flew back to Europe and I drove to Harare through the Caprivi Strip, via Botswana and past the Victoria Falls. A lot has changed since we left Namibia. I was to join the Supreme Court in Windhoek permanently beginning mid-2016, but that never happened as I then left for Harvard Law School in the US to do my Masters. The Office of the Judiciary Act, 2015 has since been signed into law, and change has been effected to the functioning and administration of the judiciary. Mike went on to work for other esteemed courts in Europe. Justice Mutambanengwe passed on in May 2017 in Windhoek; may his dear soul rest in peace. I returned to Windhoek once in 2016, to conduct research on appointment of judges, as part of the Southern Africa Chief Justices Forum (SACJF)-mandated research that also saw me doing the research in other countries in East and Southern Africa. Windhoek felt so familiar and much like home. I was to return again in August 2017 for my former Windhoek landlady’s wedding. Unfortunately, that did not happen. I hope to return soon.