Cape Town – The ANC's office of the chief whip in Parliament said the DA's victory in the Constitutional Court over the arrest of MPs was academic because it had already changed its rules.
Spokesperson for the whip's office, Moloto Mothapo, said the judgment showed that the DA's application did not challenge the decisions or conduct of the presiding officers when the EFF were forcibly removed last year.
"MPs' freedom of speech is protected under section 58 of the Constitution, i.e. freedom of speech in the House, hence it is absolutely inconceivable that anyone could be arrested merely for the things they say in Parliament," said Mothapo.
He said since 1994, nobody had ever been arrested for utterances made in Parliament and the DA's claims of arrest were a fabrication.
This was after the highest court in the land ordered a tweak to the Powers and Privileges Act to make it clear that an MP cannot be arrested for creating a disturbance in either the National Assembly or the National Council of Provinces.
Robust debate
The Constitutional Court said that in its current form Section 11(a) made it clear that anybody who created or took part in a disturbance in the houses could be arrested.
The judgment examined the right to freedom of speech and robust debate in Parliament, and how the threat of arrest by a police officer could curtail that right.
It noted the Act does allow Parliament to make its own rules on how to handle disturbances. These have since been changed to allow only the serjeant-at-arms and protection officers, not police, to handle disturbances. The Act provided for an arrest in the chambers for a crime.
Section 11(a) reads: "A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services."
The judges said the Western Cape High Court was not wrong in finding this constitutionally invalid, but the Constitutional Court would not confirm that it was constitutionally invalid.
Beyond disruption
Instead, it varied the earlier court's finding and ordered that the "constitutional defect" be fixed by adding the words "other than a member" after the word "person" to ensure that arrest does not apply to an MP over a disruption. To warrant arrest, an MP's conduct must go beyond disruption and must be criminal.
The court made it clear that it was only pronouncing on Section 11(a) of the Act, and not the rules of Parliament. "That is a matter for another day," the judgment said.
The application came after the Economic Freedom Fighters refused to stop chanting "pay back the money" to President Jacob Zuma over R246m spent on his home in Nkandla during his State-of-the-Nation address in February last year.
EFF MPs were forcibly removed by the "white shirts", a nickname given to the protection officers seen rushing in to the chamber when they ignored Speaker Baleka Mbete's instructions to leave. The DA walked out in protest afterwards when Mbete said they were police officers.
Extraordinary events
The incident raised the question – should the police be allowed into the chamber to deal with a disruption where free speech is permissible, where not everybody agrees, and the word 'disruption' could be broadly interpreted.
The DA said the judgment paved the way for MPs to do their work without the threat of removal from the House or arrest by the country’s security services.
"While it is never desirable to rely on the Courts to make rulings on the workings of Parliament, the extraordinary events that characterised the State of the Nation address last year compelled the party to approach the Court in this matter."
