Sunday, July 25, 2021

There is nothing Makgatho can do about parliamentary immunity

Greatly displeased with what Gaborone North MP, Haskins Nkaigwa, had alleged about her during a debate on the Declaration of Assets and Liabilities Bill, Minister of Transport and Communication, Dorcas Makgatho, said two remarkable things, one inside and the other outside the house.

Inside the house, she made an empty threat to sue Nkaigwa’s “ass” ÔÇô the latter being an Americanism for one’s nether region. The fact of the matter though is that 17th century England has bequeathed to Commonwealth parliaments, an over-generous freedom-of-speech privilege that enables MPs to say whatever they want without suffering any repercussions. Outside the house, she told Sunday Standard that were she a backbencher, she would challenge the immunity clause and propose that it be lifted so legislators can face the music for deliberately misleading parliament.

Such challenge would be in the form of a motion that would have to be endorsed by people who themselves abuse their parliamentary immunity to varying degrees. However, there is a more profound issue. When this immunity was introduced in 17th century England, when speaking ill of the king could send one straight to the gallows, there was understanding that in order to carry out their public duties without fear, MPs needed to be able to speak freely. This standard would subsequently be adopted by Commonwealth parliaments on account of their ties to English and its centuries-old traditions. The thinking was that MPs wouldn’t represent their constituents well if they feared repercussions from what they said on the floor of the house. In the (unlikely) event that the hypothetical motion by backbencher Makgatho gained passage, freedom of speech in parliament would also be fatefully limited.

Any historical review of the Hansard will show that going as far back as the very first parliament, raw nerves were touched by exercise of this parliamentary privilege. At least to our knowledge, no Commonwealth parliament has withdrawn this privilege and while a grin-and-bear-it policy would be most reasonable course of action, some MPs (like Makgatho) threaten legal action they can’t pursue. Her actual words were: “Wena Nkaigwa you have nothing to declare. You have nothing to show for all your years of working…I will sue your ass for spreading lies about me o re ke rekisa di ARV.”

In 2017, Nkaigwa joked about Ministers Shaw Kgathi and Thapelo Olopeng having returned from a Botswana University of Agriculture and Natural Resources event bearing “love bites” inflicted by female students. Initially good-natured about the joke, Kgathi became incensed when, in the same spirit, Sunday Standard gave this account an elaborate prose-comedic treatment. He threatened to sue the newspaper ÔÇô which had merely reproduced what Nkaigwa had said. More pragmatic about the whole situation, Olopeng asked the Speaker to lift Nkaigwa’s immunity so the he could sue but he was rebuffed.

As last-ditch effort and always in vain, some MPs in Commonwealth parliaments challenge those who slandered them to repeat their words outside the chamber where they don’t have immunity and where the aggrieved parties have legal remedy. Two years ago, a Malaysian MP claimed that his nephew had been sodomised by opposition leader and former Deputy Prime Minister, Anwar Ibrahim. On being challenged to repeat his words outside parliament, the MP refused. The same thing happened in Makgatho’s case: she challenged Nkaigwa to repeat his claim outside and he didn’t take the bait.

Nkaigwa did himself take it on the chin when the Minister of International Affairs and Cooperation, Unity Dow, landed a solid right. In a revenge attack to what he had said earlier, Dow said: “Selo ke wena sa go utswa P20 000 o bo o ya go peitiwa ko Mochudi gore o tle o nne moruti.”  Nkaigwa has never been charged with stealing P20 000, probably didn’t earn his collar via colon-cleansing and had Dow uttered those words outside parliament, the former would have had recourse to libel law. Hypothetically, Makgatho’s motion would need the support of colleagues like Dow who themselves abuse this parliamentary privilege.

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