UNION INTERPARLEMENTAIRE
INTER-PARLIAMENTARY UNION
Association of Secretaries General of Parliaments
COMMUNICATION
from
Mr Austin ZVOMA
Clerk of the Parliament of Zimbabwe
on
BALANCING FREEDOM OF SPEECH IN PARLIAMENT AND THE RIGHT OF EVERY
PERSON TO PROTECTION UNDER THE CONSTITUTION: A ZIMBABWEAN EXPERIENCE
Geneva Session
October 2014
"BALANCING FREEDOM OF SPEECH IN PARLIAMENT AND THE RIGHT OF EVERY
PERSON TO PROTECTION UNDER THE CONSTITUTION: A ZIMBABWEAN
EXPERIENCE"
PAPER PRESENTED BY THE CLERK OF PARLIAMENT OF ZIMBABWE, MR AUSTIN M.
ZVOMA TO THE ASGP AT THE 131ST ASSEMBLY OF THE INTER-PARLIAMENTARY
UNION, GENEVA, SWITZERLAND, OCTOBER 2014
1 Introduction
“Your right to swing your arms ends where the other man’s nose begins” Justice
Oliver Wendell Holmes Jr.
The delicate balance between the unique right of Members of Parliament to freedom
of speech in Parliament and the right of every individual to protection under the
Constitution has proven to be a contentious issue in Zimbabwe, and, as research has
shown, in other jurisdictions. This is hardly surprising given the history of the
emergence of parliamentary privilege through a protracted political struggle and the
pivotal role it plays in underpinning the independence of Parliament from the
Executive. Questions have been raised over the level and extent of the protection
and immunities afforded to Members of Parliament with one school of thought
advocating for absolute privilege and another qualified privilege. However, as
Macreadie and Gardiner (2010:22) pointed out:
The rights, powers and immunities afforded to parliament and to
Members by parliamentary privilege have the potential to clash with the
rights of members of the public on the one hand, and with the rights,
privileges and operations of other branches of government on the other.
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2 Freedom of Speech and Privileges, Immunities and Powers of Parliament
The Constitution of Zimbabwe, in Chapter 4: Declaration of Rights, provides for
fundamental human rights and freedoms. More specifically, it limits freedom of
expression and freedom of the media thus:
“61 Freedom of expression and freedom of the media
(5) 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.”
Indeed, members of Parliament in Zimbabwe and other countries quite often
interpret, deliberately or otherwise, the freedom of speech granted to members
under the constitution and/or parliamentary privileges to mean that they can say
‘anything’ with impunity regardless of whether it is true or false, whether it
advertently and unjustly maligns another person’s character and reputation, or,
indeed, whether it causes unnecessary alarm and despondency. As a result, the right
to freedom of speech has often been abused and particular instances where it has
allegedly been abused have led to calls for its limitation by statute.1
Despite vociferous claims to the contrary in the majority of cases by some Members
of Parliament in Zimbabwe and, curiously, even by reputable lawyers, this paper
contends that the privilege granted to Members of Parliament to enjoy free speech
in the chamber and in committees is not, and should by no means be, absolute. This
paper seeks to illustrate that though the right to freedom of speech in Parliament
may be considered one of the cornerstones of democracy, this right should not be
exempted from the limitation imposed by the Constitution of Zimbabwe. It must
have limitations in order to prevent abuse by infringing on another person’s human
rights in its exercise. This paper further argues and demonstrates that the new
constitution which came into operation in May 2013, as well as other relevant
1
N. Goiran, The role of Parliament in protecting free speech, http://www.murdoch.edu.au/School-ofLaw/_document/Publications/The-Western-Australian-Jurist/4WAJ61---Goiran.pdf
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statutes, impose necessary limitations on members’ right to freedom of speech in
Parliament. This is a necessary balance between Parliament’s exercise of its
independence and effectiveness and the protection of individual rights and
freedoms. While allowing members of Parliament as the people’s elected
representatives to debate without fear or favour and to speak without pulling any
punches, these necessary limitations ensure that they do so responsibly and to
respect other people’s rights. Elbert Hubbard (1923) aptly observed that
“responsibility is the price of freedom.”
3 Parliamentary Privilege
Parliaments universally perform important functions which broadly fit into three
main areas: legislation, representation and oversight. To effectively fulfil their
mandate in the national governance matrix, Parliaments must, of necessity, enjoy
certain privileges, immunities and powers which allow their members to perform
their duties without fear of prosecution or punishment and without hindrance. Thus
the term ‘parliamentary privilege’ refers to the privileges, immunities and powers,
enjoyed by Houses of Parliament and their members in the execution of their duties
which include the right to freedom of speech. Erskine May (2004:75) aptly defines
parliamentary privilege as follows:
…the sum of the peculiar rights enjoyed by each House collectively as a
constituent part of the High Court of Parliament, and by Members of
each House individually, without which they cannot discharge their
functions, and which exceed those possessed by other bodies or
individuals. Thus privilege, though part of the law of the land, is to a
certain extent an exemption from the general law. Certain rights and
immunities such as freedom from arrest or freedom of speech belong
primarily to individual members of each House and exist because the
House cannot perform its functions without unimpeded use of the
services of its Members…Fundamentally, however, it is only as a means
to the effective discharge of the collective functions of the House that
the individual privileges are enjoyed by Members.
It is clear from the above definition, therefore, that the privileges enjoyed by
members, individually and collectively, more so the right to freedom of speech, are
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critical to the effective discharge of their legislative, representative and oversight
functions and, ultimately, the effectiveness of Parliament in national governance.
4 Members’ Right to Freedom of Speech: The Case for Zimbabwe
The right to freedom of expression is the cornerstone of any democratic society and
Zimbabwe is no exception. As explained above, Chapter 4 of the Constitution of
Zimbabwe, also known as the Bill of Rights, outlines the fundamental human rights
and freedoms which must be respected, protected, promoted and fulfilled by every
Zimbabwean, natural or juristic, and every institution and agency of the government
at every level. An integral part of these fundamental rights is the right to freedom of
expression outlined in section 61 of the constitution as follows:
“61 Freedom of expression and freedom of the media
(1) Every person has the right to freedom of expression, which includes(a) Freedom to seek, receive and communicate ideas and other
information;”
The fact that this right to freedom of expression is accorded to every Zimbabwean as
a fundamental human right underscores the importance of free speech in a
democratic society. Consequently, members of Parliament have often argued that
because the right to free speech is part of the inalienable human rights, it should,
therefore, supersede other rights and freedoms and should thus not be limited.
Proponents of this school of thought further argue that the right to freedom of
speech in Parliament is protected under parliamentary privilege in terms of section
148 of the Constitution and the Privileges, Immunities and Powers of Parliament Act
[Chapter 2:08]. Section 148 of the Constitution provides that:
“148 Privileges and Immunities of Parliament
(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, produced
before or submitted to parliament or any of its committees.”
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This means that there can be no liability for members’ statements made in
Parliament or before any of the parliamentary committees. The purpose of this
privilege is to safeguard the freedom, authority and dignity of Parliament. In addition
to this, section 5 of the Privileges, Immunities and Powers of Parliament Act (PIPPA)
[Chapter 2:08] states that:
“5 Freedom of speech and debate
(1) There shall be freedom of speech in debate or proceedings in or
before Parliament and any committee and such freedom shall not be
liable to be impeached or questioned in any court or place outside
Parliament.”
The law states that privileges, immunities and powers of Parliament are part of the
general and public law and are judicially noticed in all courts2. Thus, from a
theoretical perspective, Members of Parliament seemingly enjoy a unique form of
freedom of expression necessary for them to express their views without fear of
reprisals. In this manner, a Member of Parliament has a right to freedom of speech
and cannot be held liable or questioned in any court or place outside Parliament for
a statement which the member makes. As a result, a court action cannot be
instituted against a member for breach of privilege. Accordingly, it would appear that
members are, therefore, free to say anything without fear of reprisal or, indeed,
without consideration of the repercussions on others.
However, in Zimbabwe, as in other jurisdictions, this right is not absolute or
unlimited, and justifiably so, as it is prone to abuse by members of Parliament.
5 Balancing the Right to Freedom of Speech vs Individual Rights: Limitations to
Members’ Right to Freedom of Speech
The Constitution of Zimbabwe guarantees the right to freedom of speech for
Members of Parliament. The same constitution also imposes certain limitations on
2
Privileges, Immunities and Powers of Parliament Act, section 4.
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this right in order to ensure that the rights of other people are not trampled upon
with impunity.
(1) Protection of Individual Rights
As cited above, section 61(5) of the Constitution of Zimbabwe provides that freedom
of expression and freedom of the media, among others, exclude malicious injury to a
person’s reputation or dignity.
A case in point is a debate on a motion on corruption and lack of corporate
governance: “The Deteriorating State of Corporate Governance in Zimbabwe” is
instructive. While contributing to the motion, some members of Parliament,
inconsistent with the title “honourable” they carry, made unsubstantiated
allegations to the effect that some Chief Executive Officers of quasi-state institutions
were earning astronomical salaries a month. Such statements during the debate on
what came to be known as the “Salary-Gate Scandal” at the time, had the effect of
rousing public opinion against the said Chief Executive Officers. One of the members
made the same allegations against the lowly paid Clerk of Parliament and made
further allegations of ‘watering down’ the above motion notwithstanding the fact
that motions are vetted for compliance with rules by the Speaker. This is an example
of an abuse of the right to freedom of speech to maliciously injure other persons’
reputation and dignity which right has been justifiably curtailed by statute.
In the aftermath of this debate, the Speaker made a landmark ruling premised on the
aforementioned provisions of the Constitution, among others, forbidding Members
from uttering malicious and unsubstantiated allegations against other
Parliamentarians, members of the public and staff of Parliament. The furore this
created, spearheaded by the media which quoted legal experts and accused the
Speaker of gagging Members, seemed to confirm the widespread misinterpretation
that members’ right to freedom of speech is absolute, unlimited and extinguishes
every other right.
(2) Orderly Conduct of Business in the House
Section 148 (1) of the Constitution of Zimbabwe quoted above, which members
often use to justify absolute free speech, itself imposes limitations on members’
freedom of speech. While it affords the President of the Senate, the Speaker and
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Members of Parliament freedom of speech, this is qualified by the assertion that in
exercising this right “they must obey the rules and orders of the House concerned”.
That privilege of freedom of speech is subject to the rules and orders of the House.
This means that Parliament may censure any conduct, act or omission which offends
against the spirit and letter of the law. In this regard, the right to freedom of
expression is not absolute and should be in conformity with the Bill of Rights which
all other rights are subject to.
(3) Rules to be observed by members speaking
Freedom of expression is also regulated by Standing Orders of the National Assembly
which, among other things, states that:
“62 No member shall, while speaking to a question(d) … use derogatory, disrespectful, offensive or unbecoming words against the Head
of State, Parliament or its members, the Speaker, ….nor shall a member refer to any
matter on which a judicial decision is pending.
(4) Right of reply as a remedy
In order to provide some cure to the injury that an assault may inflict on innocent
and defenceless persons, the Constitution of Zimbabwe section 148(1)(c) provides,
though belatedly, a remedy.
“148 Privileges and Immunities of Parliament
(2) An Act of Parliament may(c) 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.”
To date, the Chief Executive Officer of the Zimbabwe Revenue Authority has made
use of this provision by responding to the unfounded allegations made against him as
stated above.
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From the foregoing, it is crystal clear that Members’ right to freedom of speech is not
absolute, and, rightly so. The above provisions of the Constitution of Zimbabwe serve
to create a necessary balance which allows Members of Parliament to debate freely
but responsibly while protecting members of the public from wanton abuse.
Charles Caleb Colton (1821) rightly observed:
“Power will intoxicate the best hearts as wine the strongest heads. No man is wise
enough nor good enough to be trusted with unlimited power.”
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