IN MID-SEPTEMBER, Julius Malema, a little plumper but no less incisive than the callow youth he had been when he who upset the ANC applecart, stood before parliament to cause a sensation as an opposition MP.

With one eye on Twitter and the other on the press gallery, he delivered a scathing indictment of the Deputy President Cyril Ramaphosa for his association with the Marikana tragedy.

The man with less than 10% of the vote and more than 90% of the front pages proved once more that he was the master of public attention by asking Ramaphosa: “Why is the deputy president not accepting responsibility for the death of 34 mineworkers that died?”

Not one to waste the opportunity to over-simplify, he went on: “You killed them because you are driven by profit. Stop this thing that we must all take responsibility ...  you are the one who wrote e-mails and instigated the killing of 34 people. You are responsible. Your hands have got blood of innocent people who died in Marikana.  A lot of blood ...”

The words were not, in and of themselves, particularly remarkable. Similar sentiments had been expressed by his Economic Freedom Fighters EFF comrade Dali Mpofu when he questioned Ramaphosa at the Farlam commission that was investigating Marikana. And no doubt countless others, in pubs, on street corners, on blogs and in newspapers have uttered similar sentiments.

In a democracy such as ours, such observations about public figures might be in bad taste, even downright wrong, but they are protected as fair comment on the assumption that the big guns have the wherewithal and the platform to defend themselves.

But if these words were permitted on the streets of Rustenburg, they were not allowed to be uttered from the benches of parliament.

The speaker, Baleka Mbete, ordered Malema and his batman (or should that be Robin?) Floyd Shivambu to leave the house when they refused to withdraw their remarks.

Their language, she said, was “unparliamentary”.

It struck me that our democracy had passed through the looking glass. In this strange new world, there was greater freedom to speak your mind on the streets than within the walls of the parliamentary chamber. Things that which could be said at a press conference in the adjacent marble lobby were no longer permitted within the house.

It is supposed to be the other way around. Parliamentary privilege is intended to protect lawmakers against any and all limitations to free speech, apart from the requirement that they be polite.

I am quite sure that it was not the intention of the constitution writers that these rules and orders diminish free speech — why else would they have enshrined the notion under the heading “Privilege” in the first place? The word “privilege” implies the enjoyment of greater rights than elsewhere. Perhaps someone should ask the Constitutional Court to clear this up.

There is a long and ancient history of parliamentary privilege, which has its origins in England at the close of the 14th century. In January 1397, Sir Thomas Haxey petitioned the English parliament concerning the grotesque spending of King Richard II’s household (it transpires that the abuse of state resources on leaders’ houses is not a new problem). Haxey had his possessions confiscated and his title removed, but he had the last laugh. Once he had deposed Richard II, Henry IV successfully petitioned parliament to overturn the punishment because it was “... against the law and custom which had been before in p Parliament”.

The right of MPs to speak their minds was eventually legislated in the Privilege of Parliament Act of 1512, after an MP was imprisoned before he could introduce a bill to improve the working conditions of mineworkers in Dartmoor (it transpires that ... etcetera). The bill made it legal for MPs to say anything, however libelous or unsubstantiated, before the house.

These events occurred long ago at a distant time and far away, but they shaped our constitution’s attitude to free speech, which is robustly protected by the well-known cClause16.

The constitution’s clause 44 (4) says: “When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.”

The tradition of parliamentary privilege was enshrined in our constitution in clause 58 under the heading “Privilege”. It reads: “(1) Cabinet Ministers, Deputy Ministers and members of the National Assembly — (a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders.”

There it is. Except for one thing: The clause that allows MPs the privilege to speak freely also enables the house to limit this freedom with the qualification “subject to its rules and orders”.

I am quite sure that it was not the intention of the constitution writers that these rules and orders diminish free speech — why else would they have enshrined the notion under the heading “Privilege” in the first place? The word “privilege” implies the enjoyment of greater rights than elsewhere. Perhaps someone should ask the Constitutional Court to clear this up.

Until this is done, we must accept that the constitution writers erred. They intended these limitations to allow lawmakers to frame the rules and orders of debate, not to limit what can be said by an MP. But they were too trusting to spell this out. They erred and their error allowed the Trojan horse of politics into the citadel of privilege.

Once the constitution allowed the majority party the right to curtail free speech, it acted, predictably, to limit it by writing rules and orders that protect those in power against criticism by those in opposition. And so it was that Mbete stripped Malema of the right to accuse Ramaphosa of having blood on his hands, releasing him the latter him from the duty of having to defend himself.

There is a big lesson in this. On this tiny piece of real estate in Cape Town called parliament, the one place in South Africa where the majority party has the power to curb free speech by edict, it has not hesitated to do so. It suggests that were it not for the more robust protection that the constitution affords the rest of this land, there would be controls on what is said by critics outside the house.

Perhaps they should heed the warning of the Puritan poet John Milton, who said in his famous speech to the English parliament in 1644: “Ye cannot make us now less capable, less knowing, less eagerly pursuing of the truth, unless ye first make yourselves, that made us so, less the lovers, less the founders of our true liberty. We can grow ignorant again, brutish, formal, and slavish, as ye found us; but you then must first become that which ye cannot be, oppressive, arbitrary, and tyrannous, as they were from whom ye have freed us.”

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