20 June 2001
On the 15th of May, I referred for the consideration of the House, serious allegations contained in an open letter. In doing so I said that: "unless substantiated, they attack the integrity of the House and of Parliament."
I regret that, though referred to and raised by some honourable members in a debate, the issues placed before the House have not been satisfactorily debated much less resolved.
Given the opportunity to substantiate its allegations, the UDM and its leader have chosen not to do so even though protected by Parliamentary privilege. Instead the author of the letter has said, and I quote, "What our letter seeks is clarification on all the matters raised in the letter in question". What a strange way of seeking clarification. The author will soon have an opportunity to substantiate his allegations, though in a different venue.
The Hon Mr Gibson has presumed to indicate my alleged preferences on how the issues I had referred should be handled. I cannot accept his advocacy, purportedly on my behalf, in the amendment put forward, that the issue to be investigated should be "the appropriateness of the existing relationship between the Speaker, the Majority Party and the Executive ."
As is all too often the case, the more so recently, the House once again descended into a party political confrontation, with most parties failing to address matters that are of fundamental concern to the consolidation of our democracy and particularly about the nature and strength of Parliament.
For the members on my left in particular, the issue became simply my membership of the ANC leadership which was in itself defined as the problem.
Hon. Members, I want to make clear that my membership of the ANC or its leadership is not negotiable. It was not in the days when these precincts declared such membership a crime, nor is it now, nor will it ever be. In 1994, I refused to allow it to be used as an opportunistic bargaining chip to obtain public office. I will not do so now.
I have been honoured by members of the ANC who chose to entrust me with the task of assisting in leading their organisation. Only the membership of the ANC will determine when I should relinquish that responsibility.
In debates, and also in public discourse, all too often, an assumption is made that membership of a political party, automatically impairs ones capacity to be impartial or to judge issues on their merit. It would appear that the absence of debates and decades of intolerance of any freedom of thought and association, has led to a diminished capacity to appreciate or recognise principle, integrity and critical examination of ideas and issues as factors that guide ones judgement.
Surely, what is of relevance in this context is to assess whether any particular judgement or action is motivated by party political advantage. The critical factor in considering the conduct of any Speaker, Hon Members, is not a perceived conflict between parliamentary responsibility and party loyalty, but gauging specific actions in the context of the responsibility placed on the office bearer by the Constitution or the Rules.
In 1995, after I had apologised to President Chissano for the damage inflicted on his country by South Africa, there were calls for my resignation and my membership of the ANC was raised by the old NP and the DP. After discussions it was agreed that we needed to consider what kind of Speaker the Parliament of a democratic South Africa required.
We still need the discussion on the manner and parameters within which the presiding officers of our democratic Parliament should function. In the recent case of The Gauteng Legislature v Killian and Others 2000, the Supreme Court of Appeals Case recognised that the common law powers of a Presiding Officer included acting as spokesperson of the House in its collective capacity, regulating the business of the House by means of order and as the "interpreter and custodian of the rights and privileges of members of the House."
Let me place before you some of the principles and considerations which I believe should give direction to this institution. In doing so, I will refer to some of the examples cited in your debate two weeks ago to illustrate what the functions of the Speaker are and are not, and also what are the responsibilities of Hon Members and political parties. In doing so, I will take advantage of the suggestion by the Leader of the Opposition that having stepped off my throne I enter "the hurly, burly of contested politics". It is not a path I intend to pursue hereafter.
I have often argued on Commonwealth and other platforms that in emerging democracies, a Speaker needed to have a voice in the Councils where the process of transforming society and its institutions were debated, in order to help shape the legislature in accordance with fundamental democratic values and principles. I am not alone in holding that view. The Empire has passed and most of us cannot afford to wallow in colonial nostalgia and try and emulate what the House of Commons does, but should rather focus on what South Africa needs.
Since 1994, we have accepted Parliament should function in an inclusive way, making space for all parties regardless of size, on front benches, committees, in delegations and in provision of facilities. This is not a personal view or idiosyncrasy, but emanated from the majority party's assessment of what was necessary in order to entrench good governance and democracy in our circumstances.
Whereas in some Parliaments, powers are vested in the person or office of the Speaker, I believe that in South Africa, Presiding Officers can only exercise the authority of the House as prescribed in the Constitution and the rules. In doing so, we inevitably have to interpret these to the best of our ability and it is always open to the House to declare its different understanding or interpretation and to expect the Presiding Officers to act accordingly.
The Presiding Officers are required to interpret the constitution regularly. In the first instance Presiding Officers are responsible for ensuring that Parliament functions and exercises its powers within the Constitution. Interpretation is necessary both for procedure and substance, as when we tag each Bill before it is considered by either House. If legislation is found to be unconstitutional, the Court requires Parliament to rectify the problem and we cannot opt out by saying - "but the Executive sent us the flawed Bill." It is our responsibility.
The Presiding Officers are also required to interpret the rules. This is most noticed when we are presiding over debates and calling members to order, but more is involved.
I had assumed that parties that felt aggrieved by interpretations or actions, would use formal and informal channels to take up any perceived party political bias.
I was surprised, when I read in the Hansard that the Chief Whip of the Democratic Party claimed that "there have been a number of occasions, and many more recently, when the duality of roles of the Speaker has led to very unfortunate consequences" and that this "has led to some shocking incidents which have weakened Parliament instead of strengthening it". I cannot help asking why someone, who is the Chief whip of the official opposition and who professes a commitment to strengthening Parliament did not feel it necessary to raise these shocking incidents until a Parliamentary debate was precipitated by another party. Hon Gibson, you really should try and explain your silence while Parliament was being weakened.
One of the examples cited was the Patricia de Lille case. The only correct part of what was said about that case was that the Hon De Lille withdrew such statements as I had requested. That she did do. The Hon Gibson went on to say "the Speaker allowed what amounted to a kangaroo court to convict Mrs de Lille and impose an unconstitutional sentence" and further " the Speaker pursued the matter through the Cape
High Court and the Appeal Court, knowing full well that the Powers and Privileges Of Parliament Act was flawed and unenforceable".
I very much regret Deputy Speaker that I would have to use unparliamentary language if I were to describe the complete inaccuracy of that statement. I also regret that you did not consider the point of order made by the Hon Chauhan-Kota that Mr Gibson's statement "infers extreme mala fide".
As I have said, the Speaker exercises the authority of the House. I would be grateful if the Hon Member or anyone else would point out the rule or rules under which the Speaker could deny the National Assembly the right to set up a Committee, or refuse to implement a decision taken by resolution in the House. Clearly the Hon Gibson operates by rules that are different from the ones adopted by the National Assembly.
Further, as a lawyer, I would have expected him to have noted the judgement on Appeal given by the late Chief Justice Mohammed that while we could not limit freedom of speech, there was nothing unconstitutional in Parliament disciplining its members, provided that we made provision for this in the rules. So instead of blaming the Speaker for the inability of the House to act, the DP and indeed all parties should specifically address this gap in our rules.
Mr. Gibson is correct in saying that the Powers and Privileges Act has still not been amended, but his reason for this does not coincide with the facts. He says: "The Speaker has indicated that she would like something to happen and has kept on pointing fingers at Whips and party leaders and said we must take the initiative. ...it cannot be up to other people to take initiative which properly belongs to the Speaker. She has dragged her feet, and the result is that one can take no action, almost, against a recalcitrant member of Parliament."
Really, Hon member. Where have you been during for the past three years during which I have been chairing a committee that has completed new draft legislation. Perhaps you are also unaware that the Democratic Party was absent at every meeting held throughout 1998.
In no Parliament is it the responsibility of the Speaker to whip members of the opposition or indeed of any party to attend to their parliamentary duties. I believe that is your job.
I do intend to keep on pointing fingers at whips and party leaders for most parties have failed to participate in considering the crucial issues in the proposed legislation.
The only other specific example about functions of the Speaker have been raised by the Chief Whip of the IFP, who introduced the Chairperson of SCOPA as an actor in the controversy, and claimed that I "became involved in the functional affairs of a Parliamentary Portfolio Committee" and referred to matters raised in the media and in correspondence by the Hon G Woods.
It is very clear that the Hon Woods has a view of the Constitution and Rules of Parliament, in particular the relationship between the NA and Committees, different from the ones set out above as well as of the functions of the Speaker.
Any genuine concerns should have been raised in the Chairpersons Forum, or brought to the Rules Committee. But here again, the forum of the media and generating publicity has been elevated above the use of parliamentary channels to resolve differences.
Any Speaker who did not draw the attention of a Committee or Chairperson to a possible violation of the rules or Constitution would have been in dereliction of duty.
In a letter to the Joint Investigating Initiative dated 21 November, the Hon Woods says that after discussion with the Speaker and legal advisor Prof Haysom, a number of issues had been clarified. He writes: "The first of these concerned SCOPA's position vis a vis the investigating bodies. Legal interpretation would have it that, having helped facilitate the working together of the four bodies concerned in terms of its parliamentary resolution, SCOPA should not play an interventionist or instructive role in the course of the actual investigation. Each of the bodies concerned must be allowed its legal independence from Parliament in the course of its work."
"SCOPA would, however, appreciate being kept informed of the progress of the investigations, and especially of their final conclusions".
This accords with the constitutional position. It is quite clear then that as early as 21 November, a meeting with Prof Haysom had been facilitated, at which I was not present, and the Hon Woods had accepted the advice provided at that meeting, namely that SCOPA could not intervene or instruct bodies that were accountable to the Executive or were independent.
The Speaker did discharge the obligation to provide a Committee with advice on the way to continue its work in terms of the Constitution. Incidentally, I should add that I offered additional resources, which were then available to assist the Committee's enquiries. That offer was never taken up.
As the letter further indicates, Mr Woods was advised that Parliament could not provide additional resources to any of the agencies except at the request of the Executive or through the Budgetary process. Again this ensured that the Committee functioned in terms of the Constitution and the law.
A great deal of time, when Hon Members should have been scrutinising the processes involved in the arms purchase has been spent on debating the intention of
SCOPA expressed in the 14th Report adopted by the National Assembly. Let me repeat, adopted by the National Assembly, and stress that thereby the Report is a report of the National Assembly and no longer that of a particular Committee.
A Presiding Officer must assume that Hon Members know what they were doing and would not knowingly have intended to go against the Constitution. It is only when there were media reports indicating that the Chair and another member were suggesting that the House had agreed to instruct the President to act in a particular way, that it became necessary to clarify the constitutional position, that "any such action would be of dubious legal and constitutional validity".
This would be the constitutional position whether the report was promoted by the majority or the minority parties. As the late Chief Justice Mohammed declared it is not Parliament but the Constitution which "is the ultimate source of all lawful authority in the country" and hence both the majority and minority parties are bound by it.
Deputy Speaker, I have already indicated there is a view that Committees are autonomous of the National Assembly, do not need to report regularly, or function within the rules or prioritise legislation. We are dealing with some of this at the next meeting of the Joint Rules Committee. I want to request the Hon Woods and the IFP bring their concerns regarding the perceived interference by the Speaker in the functioning of Committees to that meeting, so that the detail of their complaints can be examined and differences can be resolved in Parliament where they belong.
I would also like the Rules Committee to consider who besides the Speaker should have responded to the Deputy President and advised him that the Special Review by the Auditor General had been correctly referred to SCOPA, and it was SCOPA'S responsibility to enquire into the issues raised.
Importantly, it is necessary to confirm whether the Presiding Officers should be the channel of communication between the Executive and Parliament, and whether it was correct for the Speaker to assert that documents and information could only be made available to the Executive in terms of our Rules.
It is also necessary to clarify the role of all the parliamentary office bearers, and to distinguish their functions from political party office bearers. In 1994, we abolished the Office of the Chief Whip of Parliament, which allowed the Executive to run Parliament, but a cultural hangover remains. We also need to consider a formal relationship and possibly a forum for interaction with the Secretary of Parliament and his staff.
Deputy Speaker, I want to return to a matter I raised earlier. The democratic Parliament began to take shape in a very positive way. Prior to the 1999 elections, I paid tribute to the first Chief Whips who co-operated to shape this institution in accordance with the founding principles of our Constitution.
This Second Parliament has, I regret to say, regressed. Instead of developing into a national forum where issues of national importance can be debated, ideas exchanged, and policies developed, it has been made into an arena for continuing inter-party conflict, a perpetual election campaign. Parties have not been able to agree on guidelines for having any debate that is not a party motion, except by calling it a Speaker's debate. For over a year, parties have not agreed a new formula for the composition of Parliamentary delegations.
Any idea, policy or action cannot be critically examined, rather the focus is on the party affiliation of the person who originates the idea or policy or takes the action. We consistently seek underlying agendas and motivation for everything a member does or says, and drown the idea.
We do not make time to discuss and build consensus on the principles and policies on which the institution of Parliament should be developed and there is no appropriate forum for this. Rules and conventions flow from such discussion among all members.
The spirit of confrontation is extended also to the Executive. Constitutions are interpreted and conventions and practices evolve over decades. We have a strong authoritarian history in South Africa, but also another tradition of drawing mandates and authority through grassroots participation and consultation. Our constitution provides for a very powerful Parliament and for a strong Executive with sufficient authority to drive the transformation process. This was by design not accident. Our Constitution is not a replica of the U.S., Germany or Britain, but provides for clearly defined exclusive jurisdiction between the Executive, Legislature and Judiciary. We need to understand this, as we strive for balance. Initially there will be tension, which needs to be managed. We cannot operate on the principle that the Executive is the enemy, neither are we.
Many members now in the Executive led the negotiations which gave birth to the Constitution. We therefore have a unique opportunity to manage our relations in a way that will secure a balance favourable to Parliament and the space to exercise the power provided in our Constitution.