Commitee Programme and Research Document

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Meeting report

AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT (NA)
21 August 2001
COMMITTEE PROGRAMME & RESEARCH DOCUMENT

Chairperson: Mr P Mokaba

Documents handed out
Powers and Privileges on Parliament Bill
Submission: Suggestions on Powers and Privileges on Parliament Bill
Comparative Study of Legislation on Powers, Privileges & Immunities of Members of Parliament (see Appendix)
Report of the Ad Hoc Committee on Powers and Privileges of Parliament of 14 August 2001

SUMMARY
In discussing how to tackle the programme of the Ad Hoc Committee, members decided that due to time constraints, thorough work would not be achieved if the deadline were to be 7 September. The suggestion of 21 September was also regarded as too short. Consequently, members decided that a request for the deadline to be extended to just before the end of this parliamentary session in November be made to the Speaker.

The Committee decided that the best approach its work would be to have a workshop "as soon as possible" to be followed by public hearings before the Committee comes up with its final report.

Regarding public hearings, it was noted that only one submission had been received so far and that members should suggest a list of people such as academics that could be contacted to make submissions.

It was decided not to have meetings until after the workshop had taken place.

Appendix:
INFORMATION SERVICES: RESEARCH

PARLIAMENT

 


14 August 2001

 

Legislation On The Powers, Privileges And Immunities Of Members Of Parliament: A Comparative Study

 

Introduction

Parliamentary privilege consists of those rights and immunities that Members of any Parliament must have in order to execute their functions properly. It includes the right to speak freely and without fear in Parliament, as well as the right of each House to regulate its own affairs without any outside interference.

 

However, parliamentary privilege is not a licence for Members of Parliament to behave in ways which are unacceptable to society at large. Some form of codification of these rights is therefore needed to firstly clarify the immunities, powers and privileges of Members both internally and to society at large. Secondly, it is needed to create some mechanisms of keeping Members accountable for the effective execution of their functions.

This brief will provide an overview of legislation regulating the immunities, powers and privileges of Members of Parliament in Namibia, Hong Kong, Tanzania, Germany, Kenya, Singapore, Botswana and India.

 

Namibia

In Namibia the legislative authority is vested in Parliament, which consists of two Houses, namely the National Assembly (NA) and the Council. The Presiding Officer in the NA is the Speaker and in the Council it is the Chairperson. The Powers, Privileges and Immunities of Members of Parliament Act govern the powers, privileges and immunities of Members of Parliament.

 

Freedom of Speech

Although the Act contains no express provision which establishes the freedom of speech of Members, Article 2 of the Act renders Members of Parliament immune to any civil or criminal proceedings, arrest, imprisonment or damages in respect of anything:

     

  • Such Member did in the exercise of his or her right to freedom of speech in Parliament, or
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  • Any matter which such Member brought before Parliament by report, petition, bill, resolution or motion.
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Service of process issued by a court of law

In terms of Article 3, no process issued by a court may be served or executed against a Member within the precincts of Parliament while the House is sitting or while a Member or Officer of Parliament is attending a committee meeting. Where a Member has been arrested or detained in terms of a warrant or sentenced to a term of imprisonment, the Registrar of the High Court or the Magistrate concerned must inform the relevant Presiding Officer of such arrest, detention or imprisonment.

 

Exemption of Members and Officers from certain obligations

Article 4 exempts Members and Officers from appearing in legal proceedings in any court while such Member or Officer is in attendance at Parliament. A certificate issued by the relevant Presiding Officer is sufficient proof that the Member or Officer is in attendance at Parliament.

 

Protection in terms of acts performed under the authority of Parliament

Article 5 grants protection to persons acting under the authority of Parliament by exempting them from liability for damages in terms of anything done under the authority of Parliament.

 

Committee of Privileges

In Article 7 the Act makes provision for the establishment of a Committee of Privileges in the NA and the Council. In the NA the committee consists of the Speaker and five Members of the NA. In the Council the committee consists of the Chairperson and five Members of the Council. The powers and functions of the committee are set out in article 12. In terms of this Article, the committee:

 

     

  • Is obliged to issue directives providing for appropriate disclosure by Members of their financial or business affairs, as well as the form and the frequency with which such particulars have to be furnished.
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  • Has discretion to initiate an investigation or to launch an investigation upon a complaint received either by the House (on any matter relating to the conduct of any Member within the precincts of Parliament or alleged breach of any of the Rules) or by any person where it is alleged that a Member failed to disclose an interest.
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  • Has the discretion to request a Member in writing to submit to it a return of assets and liabilities or to furnish to it any book, document or information it may require.
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  • Has a duty to report its findings to the House upon conclusion of an investigation.
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Power to order attendance of persons before committee

In terms of Article 14, the Committee of Privileges, as well as any other committee authorised by a resolution of the House, may subpoena any person by means of a summons to appear before it to give evidence. The Secretary, on the direction of the relevant Presiding Officer, must issue such summons.

 

Privileges and Protection of witnesses

Witnesses appearing before any committee are protected by Article 17 that extends to them the same rights and privileges as before a court of law in respect of any evidence they are required to give or any document they are required to produce. Where a person refuses to answer a question or to submit a document on the ground that it is not relevant to the subject of inquiry, the Presiding Officer to whom such refusal is reported by the committee has the power to either exempt the person from answering or producing or to compel the person to answer or produce.

 

Witnesses who are not full-time Public Servants or who do not work for a local or regional authority or body or institution established by or under any law, are entitled to such expenses and fees as are payable to witnesses in Magistrate’s court proceedings if they do not reside within the area where they are supposed to give evidence.

 

Offences and penalties created by the Act

The Act creates various offences and prescribes penalties for these offences as follows:

 

     

  • In terms of Article 18 a person shall be guilty of an offence if he or she disobeys a summons served upon him or her without sufficient cause, refuses to answer questions or intentionally gives false answers, produces false documentation with the intention to deceive or leaves proceedings without being excused by the Presiding Officer.
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  • Article 18 also renders it an offence to tamper with, discourage, threaten or unduly influence any person with regard to evidence the person has to give in an inquiry.
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  • Article 24(1) makes it an offence to:
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    • Assault, obstruct, molest, threaten or insult or try to compel through force, insult or menace any Member to declare him or herself for or against any matter before Parliament whilst such Member is either on his or her way to Parliament or leaving Parliament.
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    • Assault, interfere with, molest, threaten, resist or obstruct any officer while in the execution of his or her duties.
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    • Create or join in any disturbance which interrupts or is likely to interrupt the proceedings of Parliament while a sitting is in progress.
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    • Give evidence outside of Parliament in respect of minutes a person was employed to record during a Parliamentary inquiry without the leave of the relevant House.
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    • Enter or try to enter the precincts of Parliament with a gun or other object which is likely to cause serious bodily injury if used to assault someone.
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  • In terms of Article 24(2) any stranger who attempts to enter the precincts of Parliament in contravention of an order of a Presiding Officer or who fails or refuses to leave Parliament when ordered to do so by a Presiding Officer is guilty of an offence.
  •  

Any person convicted of any of the above-mentioned offences is liable to a maximum fine of 20 000 Namibian dollars or a maximum prison term of 5 years or both.

 

 

Hong Kong

In Hong Kong Parliament is known as the Legislative Council. The Council consists of one House only. The Presiding Officer in the Council is known as the President. The Powers, Privileges and Immunities of the Members of the Council are governed by the Legislative Council (Powers and Privileges) Ordinance of 1985. Powers and Privileges enshrined in the Ordinance include:

Freedom of Speech and Debate

Article 3 guarantees freedom of speech and debate for all Members of the Council. In terms of this Article, Council Members have freedom of speech and debate in the Council or proceedings before a committee. Members shall therefore not be liable to questioning in any court or place outside the Council in relation to anything he or she said or did in Parliament.

 

Immunity from legal proceedings

Article 4 grants Members immunity from legal proceedings (criminal and civil) in terms of anything such Member said or wrote in a report to the Council or a committee or in terms of any matter contained in a petition, Bill, resolution or motion brought by him or her.

 

Freedom from arrest

In terms of Article 5, a Member may not be arrested for any criminal offence or civil debt whilst going to, attending or returning from a sitting of the Council or a committee. Further, a Member may not be arrested on a criminal charge whilst attending a sitting of the Council or a committee.

 

Exemption from service of process

Article 6 of the Ordinance prohibits courts from serving or executing process of legal proceedings on a Member within the precincts of the Chamber while the Council is sitting. Even the President (Speaker) of the Council is prohibited from serving or executing court process, unless it relates to a person employed within the precincts of the Chamber.

 

Evidence of proceedings in the Council

Members and Officers of the Council are prohibited from giving evidence outside Parliament in relation to any minutes or records of evidence before the Council or a committee which that person was employed to record. In terms of Article 7 such evidence can only be given outside Parliament with the leave of Parliament.

 

Regulation of admittance to the precincts of Parliament

Article 8 aims to secure the premises of Parliament by providing the President with the power to issue such administrative instructions as he may deem necessary from time to time for regulating the admittance and conduct of persons who are not Members or Officers of Parliament within the Chamber and the precincts of the Chamber.

 

Power to order attendance of persons before committee

Article 9 grants the Council the power to order any person to appear before it or any of its committees or to produce any document in the person’s possession or control. Where a committee requires a person to appear before it or submit any document to it, the Clerk (Secretary) of Parliament must issue a summons by direction of the President to notify the person. The summons may be served either by an Officer of the Council, a police officer or any public officer. Where a person who had been duly summoned to appear before the Council or a committee fails to do so, Article 10 provides the President with the power to direct the Clerk to issue a warrant to arrest the person and bring him before the Council or committee. The President may also, by ordering an appropriate endorsement of the warrant, direct that a person be brought before a Magistrate after arrest. The person will then only be released if he agrees to appear before the Council or committee on the specified date and time. Such warrant can only be executed by a police officer.

 

Privileges and Protection of witnesses

In terms of Article 14, any witness who has been summoned to appear before the Council or a committee or to produce a document shall enjoy the same right or privilege as person appearing before a court of law.

 

Offences and penalties created by the Act

Part 4 of the Ordinance creates various offences and provides severe penalties relating to the different categories of offences as follows:

 

     

  • Contempt i.t.o. Article 17: Any person, who disobeys any lawful Order of the Council or committee to appear before it or submit a document, refuses to be examined or answer any relevant question during any examination or creates a disturbance or joins in any disturbance that is likely to interrupt the proceedings of the Council, commits an offence. Upon conviction, Article 17 imposes a hefty fine of $10 000 and imprisonment for a period of one year. Where the person continues with the offence, a further fine of $2 000 will be imposed for each day on which the offence continues.
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  • False evidence and deception in terms of Article 18: Any person who intentionally gives a false answer to any material question put by the Council or a committee during the course of an inquiry is guilty of an offence. Such offence is punishable with a fine of $50 000 and a two years imprisonment.
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  • Interference with Members, Officers or witnesses in terms of Article 19: Any person who:
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    • Assaults, obstructs, molests, threatens or insults or try to compel through force, or menace any Member to declare him or herself for or against any matter before Parliament whilst such Member is either on his or her way to Parliament, within the precincts of Parliament or leaving Parliament.
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    • Assaults, interferes with, molests, resists or obstructs any officer of the Council while in the execution of his or her duty.
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    • Tampers with, deters, threatens, molests or in any way unduly influences any witness in regard to any evidence to be given by him or her before the Council or a committee.
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    • Threatens, molests or in any way punishes or injures or attempts to punish or injure any person for having given evidence before the Council or a committee or on account of any evidence which he or she has given before the Council or a committee, commits an offence. Such offence is punishable with a fine of $10 000 and a one year prison sentence upon conviction.

     

  • Entering or remaining in the precincts of the Chamber in terms of Article 20: Any person who contravenes any Standing Order or resolution by entering or trying to enter the Chamber or who contravenes an administrative instruction regulating the admittance or conduct of persons in the Chamber or its precincts, is guilty of an offence. Upon conviction, such person can be fined to payment of $2 000 as well as a prison sentence of 3 months.
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Tanzania

The Parliament of Tanzania consists of two parts, namely the President and the National Assembly (NA). The Speaker, who is assisted by the Deputy Speaker and the Clerk to the NA, heads Parliament. The Tanzanian Constitution of 1997 and the Parliamentary Immunities, Powers and Privileges Act govern the powers, privileges and immunities of Members of the Tanzanian Parliament.

Freedom of Speech

Section 100(1) of the Tanzanian Constitution reserves the right to freedom of debate of its Members of Parliament. In terms of this section there will be freedom of thought, debate and business in Parliament. This freedom cannot be suspended nor challenged by any Institution outside Parliament. Section 100(2) provides immunity to Members from criminal prosecution as a result of anything he or she said in Parliament or any matter tabled before Parliament in the form of a request, motion or any other matter.

 

The right to freedom of speech and debate is also secured by section 3 of the Act which provides that there shall be freedom of speech and debate in the Assembly. Such freedom of speech and debate shall not, according to this section, be liable to be questioned in any court or place outside the Assembly.

Immunity from legal proceedings

Article 5 grants Members immunity from criminal and civil proceedings in terms of anything such Member said or wrote in a report to the Council or a committee, in terms of any matter contained in a petition, Bill, resolution or motion brought by him or her or any act by him or her which was done in bona fide (in good faith) pursuance of a decision or proceeding of the Assembly or a committee.

 

Freedom from arrest

In terms of Article 6, a Member shall not be liable for arrest for any civil debt, except where the contract in terms of which the debt was incurred, constitutes a criminal offence.

 

Exemption from service of civil process

In terms of Article 11 no person is allowed to serve or execute a summons issued by any court (in and outside the country) in a civil claim on a Member within the precincts of the Assembly while the Assembly is sitting. Members may also not be arrested in these circumstances, unless the leave of the Speaker is obtained.

 

Evidence of proceedings in the Council

Section 9 prohibits Members, Officers of the Council and persons employed to take or transcribe minutes of evidence before the Assembly or a committee from giving evidence outside Parliament in respect of the contents of such minutes or records of evidence or in respect of any proceedings or examination held before the Assembly or a committee. Evidence of this nature can only be given outside Parliament with the leave of the Assembly, which can only be given during a recess or adjournment by the Speaker.

 

Regulation of admittance to the precincts of Parliament

Article 7 aims to regulate the admittance of people to Parliamentary premises by providing that no stranger is entitled, by right, to enter or to remain on the premises of Parliament. The Article grants the Speaker the power to issue such orders as he may in his discretion deem necessary or desirable for regulating the admittance and conduct of strangers within the precincts of the Assembly Chamber.

 

Power to order attendance of persons before committee

Article 13 empowers the Assembly, any standing committee or any sessional committee to order any person to appear before it to give evidence or to produce any document in the person’s possession or under his or her control. Where a committee requires a person to appear before it or submit any document to it, the Clerk of the Assembly must notify such person by issuing a summons under the direction of the Speaker. The summons may be served either by an Officer of the Assembly or a police officer.

 

If a person who had been duly summoned to appear before the Assembly or a committee fails to do so at the time and place stipulated in the summons or wilfully avoids service of summons upon him or her, Article 15 empowers the Speaker to issue a warrant to arrest the person and bring him or her before the Assembly or committee at a time and place stated in the warrant. The Speaker may also, by ordering an appropriate endorsement of the warrant, direct that a person be brought before a court after arrest. The person will then only be released if he agrees to appear before the Assembly or committee on the specified date and time. A warrant issued in terms of this section can only be executed by a police officer.

 

Where a person who had been summoned to give evidence or produce a document to the Assembly objects to answering a question or producing a document on the ground that it is of a personal nature and not relevant to the inquiry, Article 17(1) empowers the Speaker to either excuse the person from answering or to compel the person to answer or produce the document.

 

Where a person who had been summoned to give evidence or produce a document to a committee objects to answering a question or producing a document on the ground that it is of a personal nature and not relevant to the inquiry, Article 17(2) gives the chairperson of the relevant committee discretion to report such objection and the reasons therefore to the Speaker. The Speaker then has the discretion to excuse the person from answering the question or producing the document.

 

Privileges and Protection of witnesses

In terms of Article 18 any person who has been summoned to appear before the Council or a committee or to produce a document shall be entitled, in respect of such evidence or the disclosure of any communication or the production of any such document, to the same rights or privileges as a person appearing before a court of law.

 

Article 19 also attempts to give some form of protection to witnesses by providing that any answer that a witness might have given in response to a question posed to him or her shall, as a general rule, not be admissible in evidence against him or her in any civil or criminal proceedings.

 

Offences and penalties created by the Act

Part 3 of the Act creates various offences, which include:

 

     

  • Contempt in terms of Article 24: In terms of this Article a person will be guilty of an offence if he or she engages in any of the following acts:
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    • Refuses to be sworn in or to make an affirmation where he or she was called upon to give evidence before the Assembly or a committee.
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    • As a witness misconducts him or herself.
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    • Causes an obstruction or disturbance within the precincts of the Assembly Chamber during a sitting of the Assembly or a committee.
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    • Shows disrespect in speech or manner towards the Speaker.
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    • Any other intentional disrespectful act that is directed at the proceedings of the Assembly or any person presiding at such proceedings.
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  • False evidence in terms of Article 21: Any person who intentionally gives a false answer to any question that is material to the subject of inquiry put by the Assembly or a committee is guilty of an offence. Such offence is punishable as if he has committed an offence under section 122 of the Penal Code.
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  • False documents in terms of Article 23: This Article makes it an offence for any person to present any false, untrue, fabricated or falsified document with the intention of deceiving the Assembly. Upon conviction, such person shall be liable to a maximum fine of ten thousand shillings or a maximum prison sentence of 12 months or both.
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  • Interference with witnesses in terms of Article 22: A person shall be guilty of an offence if he or she:
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    • Tampers with, deters, threatens, molests, beguiles or in any way unduly influences any witness with regard to any evidence to be given by him or her before the assembly.
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    • Threatens, molests or in any way punishes, damnifies or injures or attempts to punish, injure or damnify any person for having given evidence before the Assembly or a committee or on account of any evidence which he or she has given before the assembly or a committee. Upon conviction, such offence is punishable with a maximum fine of ten thousand shillings or a maximum of 1-year imprisonment or both.
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  • Entering or remaining in the precincts of the Chamber in terms of Article 27: Any stranger who contravenes any Standing Order of the Speaker by entering or trying to enter the precincts of the Assembly or who fails or refuses to withdraw from the precincts of the Assembly when ordered to do so by the Speaker or who contravenes any Order made under this Act by the Speaker which regulates the admittance of strangers to the precincts of the Assembly or who attends a sitting of the Assembly as a news reporter on the strength of permission that had been provoked is guilty of an offence. Upon conviction, such person can be fined to a maximum amount of five thousand shillings or a maximum prison term of 6 months or both.
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  • Bribery i.t.o. Article 29: This Article makes it an offence for any person to offer directly or indirectly a bribe, fee, compensation, gift or reward to any Member, Officer or any person who is an employer or partner with the intention of influencing such person in his or her conduct relating to the promotion or opposition of a bill, resolution, matter, rule or thing submitted to or intended to be submitted to the Assembly. Similarly, it is an offence for any Member, Officer or person who is a partner or employer to demand, accept, or receive, directly or indirectly, any bribe, fee, compensation, gift or reward. Upon conviction, this offence is punishable with a maximum fine of twenty thousand shillings or a maximum prison sentence of three years or both.
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  • Other offences against Members i.t.o. Article 29: This Article makes it an offence for any person to:
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    • Assault, obstruct or insult any Member or officer on their way to or leaving Parliament.
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    • Try to compel any Member (directly or indirectly) through force, insult or menace to declare him or herself for or against any matter, Bill, resolution or rule submitted to or which is intended to be submitted to the Assembly.
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    • Assault, interfere with, resist or obstruct any officer while in the execution of his or her duties.
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    • Send any Member a threatening letter or challenge a Member to a fight because of an act performed by a Member in his capacity as such.
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Other provisions not covered in draft South African legislation

  • Freedom of Members to hold meetings in constituencies.

Article 4 grants to Members the freedom to hold public meetings in their constituencies. All authorities must, as far as possible in the circumstances, facilitate Members in a way that is convenient to the Member. Any person who causes obstruction at such public meetings shall be guilty of an offence for which he or she may be prosecuted by the relevant authority.

  • Jurisdiction of Assembly in relation to breach of Parliamentary Privileges

In terms of Article 12 the Assembly has the power and jurisdiction to inquire into, judge and pronounce upon any breach of parliamentary privilege which does not amount to an offence under the Act. The Article empowers the Speaker to determine whether or not any act, matter or thing is one into which the Assembly may inquire, judge and pronounce upon.

 

Germany

In Germany Parliament consists of two Houses, namely the Bundestag (House of Representatives) and the Bundesrat (Senate). The Presiding Officers in both Houses are referred to as the President of the House. Provision is made for the immunities, powers and privileges of Deputies (Members) in the "Basic Law for the Federal Republic of Germany".

 

Freedom of Speech and Indemnity from legal proceedings

Article 5 guarantees to all persons the right to freely express and disseminate his opinion in speech, writing and pictures. Article 48(1) indemnifies Members from being subjected to any court proceedings, disciplinary action or other form of accountability to anyone outside of Parliament for a vote cast or statement made by such Member in the House or any of its committees in execution of his right to freedom of speech. However, this right is limited and will not apply to defamatory insults by the Member. Further, should the Member in any way try to abuse his right to freedom of speech, he or she will forfeit such right in terms of Article 18.

Freedom from arrest

In terms of Article 48(2) a Member may not be called to account or arrested for a punishable offence without the permission of the House, unless he is caught while committing the offence or on the following day. Further, the personal freedom of a Member may not in any other way be restricted and proceedings may not be initiated against him on the ground that he abused his right to freedom of expression without the permission of the House.

 

Protection of Parliamentary premises

Article 40, read with Article 45(b), aims to safeguard the premises of Parliament. In terms of Article 45(b) the House of Representatives must appoint a Defence

Commissioner to safeguard basic rights and to assist the House in exercising parliamentary control. Article 40 gives the President ownership and police powers over the House of Representatives building. In terms of this Article the premises of the House may not be searched without the permission of the President.


Entitlements of Members

Article 48 entitles any candidate for election to the leave that he might need for his election campaign. The Article also makes it possible for a Member to hold a job and be a Member of Parliament at the same time. It protects Members in this way by providing that a Member may not be dismissed from his job on the ground that he is a Member of Parliament. Members are entitled to the free use of all state-owned means of transport, the details of which are regulated by a federal Act.

 

 

Other provisions not covered in draft South African legislation:

  • Right of Members to refuse to give evidence

Article 47 exempts Members from giving evidence concerning persons who had provided them with confidential information in their capacity as Members or to whom they have provided confidential information in such capacity, as well as evidence proving the facts themselves. No documents in this regard may therefore be seized.

  • Committees of Investigation

In terms of Article 44 the House of Representatives has a right to set up a committee of investigation to take evidence required at public hearings. However, where a quarter of the Members in the House pass a motion for the establishment of such a committee, the House has a duty to do so. The rules of criminal procedure (with the necessary adjustments) apply to the taking of evidence.

 

The Courts and administrative authorities are bound to render legal and administrative assistance to such a committee, although the decisions of the committees of investigation is not subject to judicial consideration.

 

Kenya

Kenya has a unicameral Parliament called Bunge or National Assembly. The powers, privileges and immunities of the National Assembly and the Members of the National Assembly are governed by the National Assembly (Powers and Privileges Act) of 1952.

 

Privileges and Immunities

The Act does not contain any explicit provision establishing the freedom of speech of Members. Article 4 of the Act provides that no civil or criminal proceedings can be instituted against any Member for words spoken before, or written in a report to, the Assembly or a committee. Article 5 provides that no Member will be liable to arrest for any civil debt except a debt, the contraction of which constitutes a criminal offence, whilst going to, attending or returning from a sitting of the Assembly or any committee.

 

Service of Process issued by a Court of Law

In terms of Article 6, no process issued by any court of Kenya in the exercise of its civil jurisdiction may be served or executed within the precincts of the Assembly while it is sitting. Furthermore, no such process can be served or executed through the Speaker or any officer of the Assembly unless it relates to the attachment of a Member’s salary.

 

Code of Conduct

The Speaker may, as it is deemed expedient, issue directions in the form of a Code of Conduct regulating the conduct of Members of the Assembly whilst within the precincts of the Assembly other than the Chamber.

Committee of Privileges

Article 10 of the Act provides for the establishment of the Committee of Privileges consisting of the Speaker and ten members of the Assembly under the chairmanship of the Speaker. In terms of this Article, the committee:

 

     

  • Is obliged to inquire into any alleged breach by any Member of the Assembly of the Code of Conduct, or into any conduct of the Member within the precincts of the Assembly (other than the Chamber) which is alleged to have been intended or likely to reflect adversely on the dignity or integrity of the Assembly or a Member, or to be contrary to the best interests of the Assembly or its Members.
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The Assembly is obliged to consider the report sent to it by the Committee of Privileges and may take disciplinary action against the Member concerned. Such disciplinary action may include suspension from the service of the Assembly.

 

Article 12 of the Act provides that no proceedings or decision of the Assembly or the Committee of Privileges acting in accordance with this Act may be questioned in court.

 

Power to Order Attendance of Witnesses

The Assembly or any of its standing committees may order any person to attend before it and to give evidence or to produce any paper, book, record or document in the possession or under the control of that person. Article 16 provides that the Assembly or any committee may require that any facts relating to the subject of inquiry before it be verified, or otherwise ascertained by the oral examination of the witness, and that such person may be examined under oath.

 

Privileges of Witnesses

Every person summoned to attend to give evidence or to produce any paper, book, record or document before the Assembly or a committee shall be entitled to the same right or privileges as before a court of law.

 

Evidence of Proceedings

No Member or officer of the Assembly, and no person employed to take minutes of evidence before the Assembly or committee shall give evidence elsewhere in respect of any proceedings or examination held before the Assembly or committee without special leave being obtained by the Speaker.

 

Offences and Penalties

Any person who intentionally gives false evidence shall be guilty of an offence under a section of the Penal Code and liable to the penalty prescribed by the appropriate section for that offence. In terms of Article 24, no member shall accept or receive either directly or indirectly any bribe, fee, compensation or reward for or in respect of the promotion or opposition to any Bill. Any person who acts in contravention of this section will be guilty of an offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding ten thousand shillings or both.

 

Jurisdiction

Neither the Speaker, nor any officer of the Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or such officer under this Act or the Standing Orders.

Officers of the Assembly

Every officer of the Assembly shall, for the purposes of this Act and the application of the provisions of the criminal law, have all the powers and enjoy all the privileges of a police officer.

 

Prosecutions

No prosecution for an offence under this Act will be instituted except with the written sanction of the Attorney-General.

 

Singapore

The Singapore Parliament is modelled on the Westminster system of Parliamentary democracy. The Parliament (Privileges, Immunities and Powers) Act of 1962 sets out to define the privileges, immunities and powers of Parliament, the Speaker, Members and Committees.

 

The privileges, immunities and powers are the same as those of the House of Commons of the United Kingdom and of its Speaker, Members and Committees.

 

Freedom of Speech

Article 5 of the Act provides for freedom of speech, debate and proceedings in Parliament. Furthermore, such freedom will not be liable to be impeached or questioned in any court, commission of inquiry, tribunal or any other place outside of Parliament.

 

 

Privileges and Immunities

 

Article 6 provides that no Member will be liable to any civil or criminal proceedings, arrest, imprisonment or damages for anything that he/she may have brought before Parliament or a Committee by petition, Bill, resolution, motion or what may have been said in Parliament or in committee. Furthermore, Article 6(2) provides that no person shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything done under the authority of Parliament or the Speaker and within its or his legal powers.

 

Service of Process issued by a Court of Law

Article 11 of the Act provides that no civil or criminal process may be served or executed:

  1. In Parliament or in its precincts while Parliament is sitting
  2. In any room in Parliament while a committee is sitting

Witnesses

Article 14 provides that Parliament or a committee may require that any facts or information be verified by the oral examination of witnesses, and that such witnesses be examined under oath.

Immunity of Witnesses

Article 17 provides that no person who gives evidence before Parliament or any committee will be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything that was said in such evidence.

 

Punitive powers of Parliament

Article 20 provides that for any dishonourable conduct, abuse of privilege or contempt by a Member, Parliament may:

 

     

  • Commit him to prison for a term not extending beyond the current session of Parliament.
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  • Impose a fine not exceeding $50,000.
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  • Suspend him from the service of Parliament for the remainder of the current session or any part thereof.
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  • Direct that he may be reprimanded or admonished by the Speaker.
  •  

 

Article 20(2) further provides that where a Member has been found guilty, Parliament may suspend him for such a period as may be specified, from the privileges and immunities conferred by this Act as they relate to liability to civil proceedings.

 

For any contempt on the part of a stranger, Parliament may:

 

     

  • Commit him to prison for a term not extending beyond the current session of Parliament.
  •  

     

  • Impose a fine not exceeding $50,000.
  •  

     

  • Exclude him from Parliament and its precincts for the remainder of the current session of Parliament or any part thereof.
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  • Direct that he be reprimanded or admonished at the Bar of the House by the Speaker.
  •  

 

Punishment in one session or Parliament in respect of offences committed in another

Article 22 provides that nothing in this Act shall be taken to prohibit Parliament from punishing in one session or in one Parliament offences that were committed in the preceding session or in the last session of the preceding Parliament.

 

Recovery of fine

Any fine imposed by Parliament under the provisions of this Act shall be paid into the Consolidated Fund.

 

Arrest without warrant

Article 27 provides that the Speaker may order the arrest by an officer of Parliament or a police officer, without warrant, any person who creates or joins in any disturbance in Parliament or in the precincts or vicinity thereof when Parliament is sitting. Furthermore, any such arrested person may be detained in the custody of an officer of Parliament until the rising of Parliament or until Parliament has dealt with the matter.

 

Offences and penalties

The Act stipulates that no person shall, among others:

 

     

  • Wilfully fail or refuse to obey any rule or order of Parliament or a committee, or any order of the Speaker made under the Standing Orders or this Act.
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  • Fails without just cause to comply with any summons issued in terms of this Act.
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  • Assault, hinder, obstruct or insult the Speaker or any Member coming to or going from Parliament on account of his conduct in Parliament or of anything done or said by him Parliament.
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  • Assault, threaten, insult, interfere with, obstruct or resist any officer of Parliament while in the execution of his duty.
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  • Publish any statement, whether in writing or otherwise, which falsely or scandalously defames, or which reflects on the character of, the Speaker, or any Member touching on his conduct in Parliament or anything done or said by him in Parliament.
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  • Publish any statement, whether in writing or otherwise, which falsely or scandalously defames the proceedings or the character of Parliament.
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General offences and penalties

Article 36 (2) provides that any person who attempts to contravene any provision of this Act or abets the contravention of any such provision shall be guilty of an offence and shall be liable on conviction to the penalty to which he would have been liable for a contravention of the provision itself.

 

Powers of Speaker

The powers of the Speaker conferred by this Act shall be supplementary to any powers conferred on him by the Constitution or by Standing Orders.

 

 

 

Botswana

In Botswana the legislative authority is vested in Parliament, which consists of the National Assembly. The powers and privileges of Members of Parliament are cited in the National Assembly (Powers and Privileges) Act, of 1961.

 

Immunity from legal proceedings

The Act contains no express provision that establishes the freedom of speech of Members. Article 3 stipulates that no civil or criminal proceedings may be instituted against any Member for words spoken before, or written in a report to, the Assembly or to a Committee, or for any matter brought by him by petition, Bill or motion. Article 4 provides that no Member shall be liable to arrest:

 

     

  • For any civil debt whilst going to, attending at or returning from a meeting of the Assembly or any Committee.
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  • Within the precincts of the Assembly while the Assembly or a committee is sitting, for any criminal offence without the consent of the Speaker.
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Exercise of Process

Article 5 provides that no process issued by any court in the exercise of its jurisdiction shall be served or executed within the precincts of the Assembly while the Assembly is sitting or through the Speaker, the Clerk or any officer of the Assembly.

 

Power to order attendance of witnesses

The Assembly or Committee may order any person to attend before the Assembly or Committee and to give evidence or to produce any paper, book, record or document in the possession or under the control of such a person.

 

Power to issue warrant

If a person so summoned does not attend before the Assembly or Committee at the stipulated time and place, the Speaker may direct the Clerk to issue a warrant, to apprehend him and bring him in before the Assembly or Committee. Article 11 (2) stipulates that a warrant issued under this section be executed by a member of the Botswana Police Force.

 

Witnesses

The Assembly or Committee so empowered to order the attendance of witnesses may require that any facts or matters pertaining to the subject of the inquiry be ascertained by oral examination of witnesses, under oath.

 

Privileges of witnesses

Article 14 provides to the person summoned before the Assembly or Committee the same right or privilege as before a court of law. Article 14 (4) further provides that an answer by a person to a question put by the Assembly or Committee shall not be admissible in evidence against him in any civil or criminal proceedings except in the case of criminal proceedings for an offence against this Act or for perjury, or defeating or obstructing the course of justice.

 

Proceedings to be deemed judicial

When a person gives evidence, or produces a paper, book, record or document before the Assembly or Committee, the proceedings shall be deemed to be judicial proceedings for the purposes of a prosecution for perjury, or defeating or obstructing the course of justice.

 

Other offences

Any person, who among others:

     

  • Refuses to be examined before, or to answer any lawful and relevant question put by the Assembly or Committee, unless such refusal is excused.
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  • Assaults, obstructs, molests or insults any Member coming to, being within, or going from the precincts of the Assembly, or endeavours to compel any Member by force, insult or menace to declare himself in favour of or against any proposition or matter pending in or expected to be brought before the Assembly or any Committee.
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  • Utters or publishes any false or scandalous slander or libel on the Assembly or upon any Member.
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  • Destroys documents that have been ordered to be produced before the Assembly or Committee.
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  • Tampers with a witness in regard to evidence to be given by him before the Assembly or Committee
  •  

 

shall be guilty of an offence and liable to a fine not exceeding P 400, or to imprisonment for a term not exceeding two years.

 

Exclusion of jurisdiction

Neither the Speaker nor any officer of the Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred or vested in the Speaker or such officer by or under this Act.

 

Powers of officers

Every officer of the Assembly shall in the exercise of the powers conferred and the duties imposed on him by this Act have all the privileges of a member of the Botswana Police Force under the provisions of the criminal law.

 

Authority for prosecutions

No prosecution for an offence under this Act shall be instituted except with the written authority of the Attorney-General.

 

 

India

The power, privileges and immunities of each House of Parliament and of the Members and the Committees of each House are set out in Article 105 of the Constitution of India. The article comprises four clauses. Clause 1 says that "subject to the provisions of this Constitution and to the rules and orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament".

 

Clause 2 declares that "no Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committee thereof and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings".

 

Clause 3 reads "in other respects, the powers, privileges and immunities of each House of Parliament, and of the Members and the Committees of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of that House and of its Members and Committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978".

 

Clause 4 thus reads " the provisions of clauses 1, 2, and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any Committee thereof as they apply in relation to Members of Parliament".

 

REFERENCES

  1. Namibian Powers, Privileges and Immunities of Members of Parliament Act, 17 of 1996.
  2. Hong Kong Legislative Council (Powers and Privileges) Ordinance of 1985 as amended.
  3. The Tanzanian National Website at
  4. www.tanzania.go.tz
  5. Tanzanian Parliamentary Immunities, Powers and Privileges Act, 03 of 1998.
  6. The "Basic Law for the Federal Republic of Germany" of 1949 as amended.
  7. Kenya: National Assembly (Powers and Privileges Act) of 1952.
  8. Singapore: The Parliament (Privileges, Immunities and Powers) Act of 1962.
  9. Botswana: National Assembly (Powers and Privileges) Act of 1961.
  10. The Constitution of India.

 

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