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Lloyd Gumbo Mr Speaker Sir
Are MPs abusing their Parliamentary privileges by making allegations against the Executive and other public figures when debating in the House, for the sake of grabbing news headlines?Or are they making the allegations out of genuine public interest without malice?

These are some of the questions that arise when one looks at the developments in the past few weeks, especially since the anti-corruption wave engulfed Zimbabwe.

In a rare show of unity, legislators across the political divide spoke and continue to speak with one voice castigating corruption at all levels. They have ululated and encouraged each other regardless of political affiliation. This is what everyone has always wanted our Parliament to be.

We want a biting Parliament that brooks no nonsense, be it in the Executive or State entities.

The current crop of MPs has become a joy to listen to during committee and House sessions as they appear to have awakened from a deep slumber.

Big and “sacred” names have been mentioned in the august House for being complicit in corruption and malpractices in most State entities. Whether the allegations were factual or not will be determined in the fullness of time.

Parliamentarians have made allegations that one would not dare repeat outside the House for fear of litigation.

It is for that reason, I believe, the Speaker has decided to invoke rules to ensure MPs do not implicate people under the guise of Parliamentary Privileges and Immunities. It is worth noting that parliamentary privileges are not absolute to the extent of making MPs immune to rules. Every institution has its rules, as such, Parliament is no exception.

National Assembly Speaker Jacob Mudenda recently set parameters for legislators to adhere to while debating.
He said no MP would be allowed to make unsubstantiated allegations in the House under the guise of parliamentary privileges.

“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,” Mudenda ruled.

He is a lawyer who appreciates the kind of damage malicious allegations can cause to a person. But his popularity among those he leads is probably waning. Legislators and some sections of the media feel the Speaker is undermining MPs’ privileges as set out in the Constitution.

But on the face of it, this is a noble call by the Speaker.

Parliamentary privileges were meant to keep the courts out of parliamentary activities but at the same time giving the third pillar of State authority to manage its affairs by disciplining legislators when they breach its rules.

The Constitution on Chapter Six, Section 148 on the Privileges and Immunities of Parliament, states:
“(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.”

This therefore shows that MPs do not enjoy absolute privilege.

They have to abide by the rules which they have set for themselves.

After all, who would want MPs to go about making malicious and outrageous statements about other people under the guise of parliamentary privileges?

Should MPs be allowed to say things with absolute impunity, even if they are incorrect? Given the Speaker’s intervention, one would ask whether MPs have crossed the red line or it’s just a red herring by the Speaker.

But the nagging question is where does one draw the line between the need to respect the elevated parliamentary privilege and the desire to protect potential victims’ reputations? The other question is, do the Speaker’s rules fall under the ones referred to above?

The constituents will make allegations that they expect their representatives to take to Parliament. As such, if a particular MP is convinced about the allegations, why should they be deterred from bringing them to the House?

If they are now expected to investigate and get substantive information, why would they then waste time going to Parliament instead of just going to report to the police? There are some allegations that require urgent attention to the extent that they cannot afford to lose a minute before action is taken.

Are we not running the risk of stripping the MPs’ exclusive right conferred on them to the same level of rights enjoyed by every citizen by controlling content?

It is clear that the purpose of elevating that right was to encourage robust debate so that one is not constrained by legal hurdles. Free expression is an integral part of a robust debate through this provision. A thriving democracy is a system where MPs are not deterred from debating and airing their genuine opinions for fear of litigation.

While I agree with the Speaker on the need for Parliamentarians to make allegations that they can substantiate, I disagree with him on the remedial action he proposes for those who violate the order.

It should be acknowledged that whether we like it or not, MPs have exclusive elevated privileges far above everyone because of the role they play.

They double as whistle-blowers and people’s representatives. So why should we prevent them from expressing their genuine opinions for fear of contempt?

The Constitution provides for a right of reply for people who may feel that they have been unfairly defamed during a parliamentary session.

If it is MPs who have been defamed they can respond and set the record straight in the same House while outsiders may seek redress through presiding officers.

The Constitution on Chapter 6, Section 148 (c) states: “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.” This shows that the Constitution is alive to the fact that legislators may deliberately defame individuals for the sake of it under the guise of parliamentary privileges.

Hence, a right of reply is guaranteed.

But it is important to note that the intention of allowing unfettered debate is not to malign individuals but to hold them accountable, especially those in public office.

One has to look at the historical context of parliamentary privileges, especially the Westminster parliamentary system.
Most scholars trace that privilege to the 16th century in England when the House of Commons had little protection from interference by the King and his ministers.

“The executive branch of government was separated from the parliament and the House of Commons were struggling to establish a place for itself in the parliament which was necessary to protect them from the inference and power of the King and the House of Lords.

“Thus the privileges were established in late 16th century,” said Indian blogger Jaya Godhwani.

The concept of parliamentary privileges has its foundation in the 1688 Bill of Rights which clearly states that freedom of speech or parliamentary proceedings must not be subject of litigation.

Australia National University director of Policy and Governance Programme, Professor John Uhr, said of parliamentary privileges: “It is more an immunity from prosecution on the basis of the need for frank and fearless speech by elected members, particularly about powerful outsiders who might otherwise intimidate or cause elected members to be unduly cautious in the (way) they contribute to affairs.”

Going forward, we should therefore do a cost-benefit analysis of whether we would do more harm by restricting legislators from engaging in frank discussion or by providing room for unfettered debate.

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