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The two constituional dilema's raised by Malema & how to solve them

By: Siegfried Walther 2014-08-26 09:03

The growing arrogance of the present South African Government has much in common with that of the racist government which preceded it.

The increasing contempt shown for the office of the public protector, the rule of law, for parliament and for the need to answer to the people is a matter of concern.

The President, and the ruling party appear to think that they are our Masters. In a democracy, the people are the Masters and those who they elect are in fact their servants. (Refer to my previous Blue Lights for servants article)

It's only at election time that many of the ruling party members queue for last-minute drama classes to assist them to project expressions of humility and concern whilst interacting with voters.

Like the National Party of old, the present government has a loyal support base which, despite its slow decline, repeatedly returns them to power.

The ruling party would do well to remember, however, that numerical superiority is not a substitute for achievement. Nor does it provide any guarantee good governance. 

In the old South African parliament, the National party members at one stage held all but one of the seats. They shouted down the sole member of the opposition, Helen Suzman, whenever she spoke. We all know, however, that their numerical superiority did not mean they were right. In fact, history shows they were all wrong and only one person, Helen Suzman, a tireless anti-apartheid campaigner was indeed widely and internationally regarded as in fact being right.

We should guard against the tyranny of the majority in South Africa and the place to start is in Parliament.

Parliament is a place where the President and his cabinet are answerable to the people. The President, however, failed to answer the direct questions put to him by EFF leader Julius Malema. As the ruling party resorted to shielding the president by resorting to points of order, it was incumbent upon the Speaker to remind everyone that Julius Malema, and indeed, the voting public in general, were entitled to a proper answer.

Despite that the Speaker is required to remain neutral at all times, her behaviour was decidedly partisan. This detracted from her position and from her duty to ensure that Parliament is accountable to the people.

The reaction by the EFF was understandable, although regrettable, and so was the hullabaloo which followed.

Julius Malema's conduct in Parliament, and the legal difficulties which threaten to exclude him from Parliament, present our democracy with two rather novel constitutional challenges. 

I would suggest two constitutional amendments ought to be considered as a matter of urgency to better provide for proper debate, greater parliamentary accountability and to protect the institution of parliament itself.

Firstly there is a need to eliminate any bias in favour of the ruling party by the Speaker. The Speaker should, instead of being an MP, elected by the majority of MP's, be a Judge of the High Court who should occupy the position for no more than a week at a time on a rotational basis.

Not only will a Judge, by virtue of his or her office and training, be far more impartial, a Judge will also be able to make impartial rulings about Parliamentary procedure and about whether or not a question has indeed been answered, and this would certainly go a long way to make Parliament more accountable.

In addition, a Judge sitting as Speaker could be empowered to warn Parliament when, in his view, a proposed Bill contains an unconstitutional provision, although he ought not have any power to make a ruling to that effect.

The Judge sitting as Speaker could also make non-binding suggestions as to how Parliament might improve the wording of a Bill so as to give effect to its intention and to avoid ambiguity. This could save the citizens thousands of rands in legal costs in later Court cases to deal with ambiguous legislation or legislation which is worded in manner which has unintended consequences.

Of course, Parliament would be free to ignore the Judge's advice or guidance as to the wording or constitutionally of proposed Bills. One cannot have a Judge exercising any Judicial powers in a Legislative House. Save for the said practical and sensible power to advise or guide on legislation, I propose that the Judge would be limited to the exercise of the powers and functions presently exercised by  Speaker.

Secondly, there are many who await the possible final sequestration of Julius Malema with glee, because the Constitution provides that a person who is sequestrated cannot be a Member of Parliament. I do not share in this view. 

Whether one agrees with his views or not, and surprisingly, I agree with some of them, Julius Malema and the EFF are in Parliament because around a million South African voters put him there. They have decided that he is to be their voice in Parliament.

I submit that prospect of Julius Malema's not being able to continue to represent the constituency who voted for him in Parliament because his estate has been declared insolvent, to be untenable. There is no good reason why the people cannot be represented by an insolvent person.

It is not always the case that a person declared insolvent is necessarily at fault. These days, many decent business folk find themselves forced to stand surety for their companies by greedy banks, and then, when their businesses go under due perhaps to the major creditors of the company being unable to pay or being liquidated, this leads in turn to the liquidation of that company and often too to the sequestration of its shareholders.

I realise of course, that in the case of Julius Malema, his problems are due to unpaid taxes.

If that is the evil the Constitution intended to deal with, perhaps on the grounds that those who have the power to vote to raise taxes should also be seen to be paying their taxes, then instead of the prohibition on insolvents being MP's, the prohibition could instead provide that no person who has a judgment against him by SARS over a fixed amount, which should not be negligible, will not be permitted to vote, to speak or to take up his seat in parliament, until such judgement is satisfied or until a certificate from SARS declaring that the MP has concluded a suitable agreed settlement arrangement with it.

The only other purpose the present prohibition on insolvent MP's in Parliament could serve is to prevent the possibility of an insolvent becoming a Cabinet Minister or from holding some other responsible position involving control of or responsibility for public funds where perhaps, their ability to manage their own funds MAY be subject to question.

If the purpose of the prohibition is to prevent insolvents from having such responsibility in regard to public funds, then the prohibition should not be on insolvents being MP's, but instead it could be appropriately narrowed down to prevent insolvents from serving in as Cabinet Ministers or, as a member of any committee involving Finance.

If Julius Malema's voice in Parliament is silenced by a Constitutional prohibition which is far wider than is necessary, and possibly even outdated, it would serve only to bring Parliament and our Constitution into disrepute amongst the general voting pubic. This would be damaging to the credibility of the Constitution and our democratic process.

The People have spoken. Many of them chose Julius Malema in a democratic election. I consider it our duty as a nation to ensure that nothing prevents him from continuing to represent his followers in Parliament.




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