Introduction
In every Parliament, the role of the Speaker is of great importance. The key duty of the Speaker is to provide leadership in the National Assembly (NA) which is authorised, in terms section 44 (1) (a) of the Constitution:
(i) to amend the Constitution;
(ii) to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
(iii) to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government.
Section 55 of the Constitution states that:
(1) In exercising its legislative power, the National Assembly may-
(a) consider, pass, amend or reject any legislation before the Assembly; and
(b) initiate or prepare legislation, except money Bills.
(2) The National Assembly must provide for mechanisms-
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of-
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.
Election of the Speaker
The Speaker of the NA is elected in terms of section 52 (1) of the Constitution, read together with Schedule 3, which states that members of the NA must elect a Speaker, by secret ballot, from amongst its members as the first item of business of a new parliament. The NA may also remove the Speaker by resolution in terms of section 52 (4). As the chosen representative and the embodiment of the NA’s authority, the Speaker ought to be absolute impartial and make decisions that are in the best interests of the NA as whole. Ultimately, the Speaker is the guardian of the rights and privileges of the NA, and should play a leading role in ensuring they are upheld.
Functions of the Speaker
As the leader of the NA, the Speaker is:
- the administrative head and serves as the executive authority;
- presides over debates;
- has final authority in enforcing and interpreting the Rules of the NA (Rules);
- decides on matters of order;
- delivers rulings; and
- maintains order and the quorum.
When a situation arises that is not covered by the Rules, the Speaker may in terms of Rule 2 (1) of the NA give a ruling or frame a Rule in respect of any eventuality for which these Rules do not provide. This, should be based on applicable precedents. The functions of the Speaker are to be carried out with a view of doing what is fair for all members of the NA and to elevate the NA as an institution.
The Speaker has to ensure that the NA performs its functions, conducts proceedings with order and decorum in order to elevate the calibre of debate, and preserve the dignity of the NA and all its members. The Speaker is guided by the Constitution, Rules of the NA, as well as, the Power, Privileges, and Immunities of Parliament and Provincial Legislatures Act in regulating conduct, and freedom of speech and debate in the NA.
Rule 44 of the NA guarantees members an unqualified right to freedom of speech in Parliament. The Speaker has to ensure that this right should be fully protected. Rule 63 prohibits the use of “offensive or unbecoming language”. This, however, should not be used to silence dissent as the Rule does not prohibit harsh criticism and even defamatory statements. However, Rule 66 prohibits members from reflecting “upon the competence or honour of a judge of a superior court, or of the holders of an office (other than a member of the Government) whose removal from such office is dependent upon decisions of this House”. This Rule is to protect the integrity and independence of Judges, and other non-political office bearers such as members of Chapter 9 institutions, the National Head of the Hawks, and the National Director of Public Prosecution.
When it appears that the rights and privileges of the NA and its members have been infringed, as the guardian of these rights and privileges, the Speaker should take the necessary steps to ensure their protection. This is essential as it guards the authority, independence, and dignity of the NA and all its members.
Conclusion
At first glance, the importance of the Speaker may appear limited. But the Speaker plays an essential role in ensuring a vibrant and healthy parliamentary democracy. Impartiality of the Speaker is a key requirement and is deeply entrenched in parliamentary democracy. Although the Speaker is not required to give up party membership, s/he is required to act and be seen to act impartially at all times.
It is, however, debatable if the Speaker is able to exercise this level of impartiality as s/he is elected to the NA through closed party lists and can easily be removed from the NA by the party. The pressure is, however, greater if the Speaker holds a top position in the party as s/he will be under enormous pressure to serve the party and the Executive and not Parliament as an institution. This not only puts her/him in a difficult position but also has the potential to hinder her/him in effectively pursuing the role as Speaker of the NA.
Two rules or conventions would be helpful:
- The Speaker should be exempt from replacement under the closed party list. The Speaker should vacate the office only if unable or unwilling to perform the assigned functions, or as the result of a resolution of the NA.
- While remaining a party representative, the Speaker should, on appointment, resign from executive positions within that party.
These initiatives will help promote independence and impartiality of the Speaker.
Anele Mtwesi
Researcher
anele@hsf.org.za
Sources
The Constitution of the Republic of South Africa, 1996
The Rules of the National Assembly
The Power, Privileges, and Immunities of Parliament and Provincial Legislatures Act, 2004
