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.