By Muna Ndulo
“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” ? Benjamin Franklin
UPND Members of Parliament boycotted the ceremonial opening of Parliament last month. Their actions created an avalanche of attacks by government operatives and their media surrogates (both print and television), Bush lawyers, and the now familiar members of the clergy scrambling to see who gets the greatest attention and, reward for denouncing the action of the UPND.
This is no surprise in a system where patronage is the dominant political culture. The Chief Whip of the Patriotic Front almost immediately raised a point of order in Parliament clearly salivating at the opportunity that might arise to punish the UPND MPs and possibly throw them out of Parliament.
The Speaker oblivious to the need for him to show neutrality in the discharge of his duties and, in total disregard of the elementary rules of natural justice, described the boycott as “grave” and promised to refer the matter to the Privileges Committee of Parliament for their consideration and action.
What the UPND MPs did amounts to absenting themselves from a sitting of Parliament.
When did not showing up at a Parliamentary session for whatever reason become a crime?
Absenteeism at Parliament is a regular occurrence. Is it a crime because instead of one Member of Parliament absenting himself or herself a group does so?
Which statute states that it is a crime not to come to Parliament for a day because you do not feel like doing so? The Speaker is creating a crime or misconduct out of nothing in terms of law.
The state opening of Parliament has its origins in the British Parliamentary traditions. It is an event, which formally marks the beginning of a session of Parliament. In the UK, it includes a speech from the throne.
Ceremonies of a similar nature are held in other commonwealth countries. The Governor General in the case of Australia, Canada and New Zealand the relevant Governor General, usually delivers the speech from the throne. In the rest of the Commonwealth, the President opens Parliament with an address similar to the speech from the throne.
Whether or not one agrees with UPND should not be the deciding factor here. The issue here is whether the UPND MPs have a right to protest or stay away from Parliament. The issue of an MP failing to represent his or her constituency is a matter for his constituency and not the Government.
I would like to assert in this article that what is at issue here is the right to protest.
Additionally, I would like to show that boycotting Parliament is a common form of protest in Commonwealth Parliaments, and indeed in other parts of the world.
The right to protest is critical to the functioning of democracy and is its lifeblood. This is because democracy is a continuous contest of opinions, interests, ideas and issues. It is an open market of ideas and parliamentarians have the right to adopt measures reasonably justified in a democratic society including heckling, boycotts and other forms of protest to make their point. It would be absurd to suggest that such actions are inherently a misconduct.
Unfortunately, in Zambia the police obstruct the exercise of this right openly and with impunity. Even without active obstruction of the right to protest, limitations on that right or fear of police intimidation can chill expressive activity and result in self-censorship. As Zin affirms “protest beyond the law is not a departure from democracy; it is absolutely essential to it.” The freedom to protest is included in the freedom of expression.
Freedom of expression is not absolute as the constitution provides for derogations, which fetter the right but only on grounds provided in the constitution. The grounds are limited to public safety, defense or public order. Some have argued that the MPS have breached their oath of office. They have not (there is no oath that provides that an MP shall attend all sessions of Parliament) but even if they had, the oath of members of Parliament is not a constitutionally permissible derogation of the freedom of expression of a Member of Parliament.
(Attorney-General, the Speaker of the National Assembly v. Ludwig Sondashi, Supreme Court, 2003)
The Commonwealth is replete with examples of opposition parties boycotting the ceremonial opening of Parliament. In 1976, India’s opposition members of Parliament boycotted the opening session of Parliament.
This was in protest against the Government’s declaration of a state of emergency, the detention of their colleagues and the restrictions of unprecedented character on the freedom of the press. The opposition stated at the time “We wish to record, in the only effective way open to us, our most emphatic protest.” Again, in 2014, the Indian opposition parties boycotted the opening session of Parliament in protest over spiraling prices.
In 2013, Zimbabwe’s main opposition boycotted the ceremonial opening of Parliament. The opposition issued a statement in which they stated that: “we would have recognized a stolen election had we attended the ceremony.” Said Douglas Mwonzora, the spokesperson for the MDC. In Fiji 2016, the opposition boycotted the opening session of Parliament.
In 2013, Cambodia’s opposition boycotted the opening of Parliament following political deadlock after disputed election results. In 2013, the opposition in Malta boycotted the opening of Parliament.
In Fiji, in 2016, the opposition boycotted the opening of the new parliamentary session by the President. Other examples include, Turkey (2015); Kenya (2008); Albania (2009), Mozambique (2015); Ethiopia (2005) Malawi (2008) Cook Islands (2016) and, St. Kitts (2015).
The right to protest is a fundamental right. If constitutional protections are to be effective in protecting the freedom of expression, they must do so, even when the expression of one offends the expression of another. As Voltaire states: “I disapprove of what you say, but I will defend to the death your right to say it.”
Boycott as a type of speech is particularly central to the values free speech seeks to protect-expression of dissatisfaction with the policies of one’s country. It is a shame that one should have to tell self-proclaimed “democracies” that the right to boycott is a basic human right and not punishable conduct.
One can only hope as Mark Twain observed, “we may not always think it right, but justice, like the rain, will find its way-and will fall upon every one’s head eventually” even on the heads of the Zambia Police Service and others, including the clergy.