The Speaker of Parliament Jacob Mudenda had to issue a ruling on Wednesday calling on Members of Parliament not to make unsubstantiated allegations in parliament following a spate of accusations mostly centred around corruption which has rocked the country in recent weeks following what has now been dubbed salarygate. Here is his full statement:
UNSUBSTANTIATED UTTERANCES BY MEMBERS OF PARLIAMENT
MR. SPEAKER: The House has witnessed violation of the Constitution, the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] and Standing Orders by some members during debate since the beginning of the First Session of the Eighth Parliament.
It is apparent that there is a misinterpretation of the provision of The Privileges, Immunities and Powers of Parliament Act [Chapter 2:08]. Accordingly, the Chair is making a ruling which is binding on all members of this House.
Section 2 of the Constitution of Zimbabwe states that: “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency”.
The obligations imposed by this Constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions as well as agencies of Government at every level and must be fulfilled by them.
The Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] which guarantees the privileges of Members of Parliament, including freedom of speech is also subject to the provisions of the supreme law.
Section 61(5) of the Constitution of Zimbabwe provides that freedom of expression and freedom of the media exclude
(a) incitement to violence;
(b) advocacy of hatred or hate speech;
(c) malicious injury to a person’s reputation or dignity; or
(d) malicious or unwarranted breach of a person’s right to privacy.
Section 119(1) of the Constitution states: “Parliament must protect this Constitution and promote democratic governance in Zimbabwe”.
Section 119(2) adds that: “Parliament has power to ensure that the provisions of this Constitution are upheld and that the state and all institutions and agencies of Government at every level act constitutionally and in the national interest”.
Section 148(1) of the Constitution of Zimbabwe states that: “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, produced before or submitted to Parliament or any of its committees.”
Section 4 of The Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] reinforces the same by stating that: “The Privileges, Immunities and Powers of Parliament and members and officers of Parliament shall be part of the general and public law and it shall not be necessary to plead them but they shall be judicially noticed in all courts.”
However, Section 148(1) of the Constitution of Zimbabwe clearly states that the privilege of freedom of speech is subject to the rules and orders of this House, meaning that this House may censure any conduct, act or omission which offends the spirit and letter of the law.
In this regard, the Chair wishes to point out that the right of freedom of expression is not absolute or unlimited.
Standing order 62(e) of the National Assembly states that: “No member shall, whilst speaking to a question, use his or her right of speech for the purpose of obstructing the proceedings of the House, abusing the rules or misusing the forms of the House”
The schedule (Section 21) of 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.
Put differently, it is contempt of Parliament for any member to make an oral or written submission which is untrue or fabricated as that has the propensity to undermine the integrity and credibility of this august House.
The Chair has cited the above sections of the Constitution, Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] and Standing Orders in order to guide honourable members in their interpretation of the law in relation to freedom of speech in Parliament and the limits to be observed in the exercise of the privileges they enjoy under the law.
The Chair is also concerned at the tendency by some honourable members to continue to violate the provisions of the Constitution, Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] and Standing Orders under the mistaken guise of their freedom of speech in Parliament.
The test of admissibility of utterances by a member are protected by the privilege of freedom of speech is whether they are not in violation of the provisions of section 61(5) of the Constitution of Zimbabwe. Such utterances may result in charges being preferred against the offending party or parties in Parliament or in the Constitutional Court.
On the 16th October, 2013, during the debate on the motion on the removal of sanctions the Hon. Chikwinya made serious allegations that a named honourable member had allegedly murdered a person.
The Chair immediately made a ruling that such allegations are just allegations and cannot be substituted for evidential facts and accordingly ruled the Hon. Member out of order.
On the 27th February, 2014, during debate on a motion on the deteriorating state of corporate governance in Zimbabwe, Hon. Settlement Chikwinya made other serious unsubstantiated allegations against certain honourable Members of Parliament, the Administration of Parliament and public officers, in particular Hon. Minister Webster Shamu, the Minister of Information Communication Technology, Postal and Courier Services, the Commissioner General of the Zimbabwe Revenue Authority of Zimbabwe, Mr. Gershem Pasi as well as the Clerk of Parliament, Mr. Austin Zvoma, to name just a few. The Chair made a brief ruling on this and other related matters.
Having had time to read Hon. Chikwinya’s unsubstantiated allegations against the Hon. Shamu, Mr. Pasi and others, the Chair wishes to make a substantive ruling which will be properly codified. In arriving at this ruling, the Chair has relied heavily on the provisions of the Constitution of Zimbabwe, the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], Standing Orders of the House as well as best practices from other jurisdictions.
For instance, on the 12th of June, 2012, a ruling was made in the National Assembly of South Africa as follows: “…as regards the duty of members towards their fellow members, members must appreciate that their freedom of speech must, of necessity, be subject to the principle that they may not impute improper or unworthy motives or conduct on the part of other members, or cast personal reflections on their integrity, or verbally abuse them in any other way. This approach is in keeping with the practice in many other parliaments. If such accusations, made directly or by inference were to be generally allowed in debate in this House, they would not only seriously undermine members in the performance of their duties, but would undermine the image and effectiveness of this Parliament itself. This is not to say that if a member has good reason to believe that another member may have acted improperly, such matters should not be brought to the attention of the House. However, there are proper ways of doing that. In such circumstances, it is sound practice to require that a member does this by way of a separate, clearly formulated and properly formulated substantive motion, which requires a distinct decision of the House”.
In this context, the Chair hereby rules that with immediate effect, no member shall be allowed to make unsubstantiated allegations against other members and officers of Parliament or members of the public except by way of a substantive and clearly formulated motion.
The Chair shall demand objective and verifiable evidence in support of such a motion. Any violation of this order will be met with appropriate remedial action, including initiating charges of contempt of parliament against the Member of Parliament suspected of abusing parliamentary privileges, particularly through uttering statements that are false, malicious and likely to unjustly injure other Members of Parliament as well as members of the public.
The Chair also hereby rules that no member shall be allowed to use this House of Parliament to attack the integrity of the Administration of Parliament except by using appropriate channels as provided for in the Constitution of Zimbabwe, particularly section 135, 151 and 154 of the Constitution of Zimbabwe.
Once again, the Chair is urging members to read the Constitution and appropriate laws so that they can stand guided accordingly.