By Shadrack Muyesu
Freedom of speech does not give you the right to run into a jammed disco hall and shout “fire!” – Elisha Zebedee Ongoya
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Few matters have captured the State’s attention more that the recent move by a section of opposition MPs to heckle the President as he gave his latest State of the Nation address. Amidst a backlash from large sections of the public and quite a number of elites, the Opposition came out to defend the action citing among others, the rights to peaceful assembly, petition and demonstration as protected under Article 38 of the Constitution, and the freedom the Standing Orders of Parliament grants them to raise Points of Order during debate. The Opposition has even expressed their intention to seek proper judicial interpretation of the Section 111 that the Speaker “erroneously” invoked in banning one Opiyo Wandayi from the remainder of the session.
But did the speaker act ultra vires? Is the said Section 111 unconstitutional as some have pointed out? More importantly, was the action taken by Wandayi and his friends protected by Article 37 and the Standing Orders as they so desperately sought to point out?
The position of the courts on the exercise and limitation of fundamental rights and freedoms is now settled. Courts are unanimous that the enjoyment of rights and freedoms can only be enjoyed as envisaged under the Constitution. Similarly so, the courts have opined that a fundamental right or freedom can only be limited in circumstances contemplated by Article 24 of the Constitution. Courts have interpreted article 24 to mean that a state ought to demonstrate their reason for limiting the enjoyment of a right or freedom while the court reserves the power to weigh and decide whether any such reasons are reasonable. Simply, it is now law that it is not enough to simply give a reason why a right or freedom should be limited. A court properly guided ought to compel the State to provide evidence justifying any such reason.
Among the reasons for limitation provided under Article 24 is a limitation provided by law. Such limitation, however, ought to be reasonable and justifiable in an open and democratic society based on human dignity equality and freedom. This introduces other limitations that, though not provided for under Article 24, are acceptable as long as they do not go against the spirit of the Constitution. The Standing Orders of Parliament 2013 are some of these other laws that are contemplated by the Constitution under Article 2. The rules of procedure of parliament are thus law.
Point of order
A Point of Order is one of the instruments created by the Standing Orders to maintain order during debate. However, as a defence, the notion that any members could be allowed to raise a Point of Order at any given time does not suffice, for three reasons. Foremost, the obvious interpretation of Section 83, which domesticates this instrument is that a Point of Order may only be raised during debate. According to Section 22, a presidential address during a special sitting is not a debate session. It reads “the President shall be heard in silence and the address shall not be followed by any comment or question.”
Secondly, as an instrument of debate, a Point of Order can only be invoked when addressing a Member of Parliament. The President does not qualify to be such a member and as simply, one cannot purport to raise a Point of Order to interrupt the President.
Thirdly, even in the impossible scenario that the positions taken above were untrue, the Standing Orders contemplate basic rules of procedure that ought to be followed when raising such a point. A member only rises to make his point at the discretion of the Speaker and when s/he does, it is imperative that s/he states the Point of Order on which she is rising. Furthermore, according to Section 22:
“When a Member raises a Point of Order during the speech of another Member, the Member who was speaking shall thereupon resume his or her seat and the Member raising the Point of Order shall do likewise when he or she has concluded his or her submission, but no other Member may, except by leave of the Speaker, speak on the Point of Order. (3) The Speaker shall either give a decision on the Point of Order or announce that the decision is deferred for consideration after which the Member who was speaking at the time the Point of Order was raised may continue to speak.”
It is only after the speech that a member can bring the motion up for debate. Indeed, raising a Point of Order during such a speech would open up the session to debate which would in turn amount to misrepresenting the President as a Member of the Parliament – a gross violation of the Constitution.
The manner in which the “honourable” members conducted themselves was totally uncalled for. Far from being an exercise of a constitutional right, it was actually illegal as it violated properly created and codified law in the Standing Orders. On the same delve, being a House of debate and an honourable one, so to speak, with properly laid-down procedure of presenting petitions, creating and amending law, demonstration and picketing in parliament is actually rightfully subject to limitation; it just falls short of being illegal. While on the same thought, it is also important to point out that the Constitution only contemplates a small cluster of rights and freedoms that cannot be limited. The right to demonstrate is certainly not one of them. Parliament is an important arm of government which carries out very core functions. Opening up the house to ungoverned demonstration would only jeopardise such business while threatening the sovereignty of the citizens as exercised by Parliament – the very existence of an entire country. Such an interpretation constitutes a threat to an open and democratic society. It also falls short of a very sacred rule of human rights interpretation…”one’s rights stop where another’s begin.”
Back to the events of the day, for his actions, Opiyo Wandayi was slapped with a ban from parliament for the remainder of the session, in effect preventing him from attending debate or accessing any parliamentary privileges until “when the National Assembly adjourns at the end of a calendar year or at the expiry of the term of Parliament.” In doing this, the speaker invoked Section 111 which in part states: “If any Member shall refuse to withdraw when required to do so, by or under these Standing Orders, the Speaker or the Chairperson of the Committee as the case may be, having called the attention of the House or Committee to the fact that recourse to force is necessary in order to compel such Member to withdraw, shall order such Member to be removed and such Member shall thereupon without question put be suspended from the service of the House during the remainder of the Session and shall during such suspension, forfeit the right of access to the precincts of Parliament and the Sergeant-at-arms shall take necessary action to enforce the order”.
In as far as Wandayi’s expulsion denies his constituents representation for the lengthy period he will be away, the Opposition has expressed its desire move to court seeking that Section 111 be declared unconstitutional and the speaker’s decision be reversed. While it is true that the constituents of Unguja will be denied representation for some time, it is not entirely true that the absence of representation will be a permanent fixture. The Constitution, together with Elections Act, contemplates situations where a serving member may not be fit for representative duties and provides avenues through which such a member may be replaced.
According to Section 44 of the Elections Act, dissatisfied constituents can always collect signatures and petition the High Court to allow for the conclusion of impeachment proceedings. The modicums of carrying out such impeachment may be rather cumbersome themselves, bringing into question their constitutionality, yet they remain a means nevertheless. In Wandayi’s case, any such petition would be justiciable courtesy of the fact that it happens 24 months after his election and 1 year prior to the next elections. As regards grounds, a gross and consistent violation of parliamentary procedure can reasonably be construed to be a violation of Chapter Six, leaving him susceptible to impeachment. Similarly, Wandayi would still lose his seat as suspension would automatically translate to him failing to attend 8 consecutive parliamentary sittings without the Speaker’s permission. Simply, the law contemplates situations where a constituency could be without representation and the occurrence of such situations does not automatically mean their unconstitutionality.