Association of Secretaries General of Parliaments
CONTRIBUTION
from
MRS. D. K. K. MWINGA
Clerk of the National Assembly of Zambia
To the general debate on
THE PROTECTION OF WITNESSES WHO APPEAR BEFORE PARLIAMENTARY COMMITTEES
Quebec Session
October 2012
INTRODUCTION
Under a parliamentary democracy, Parliament oversees Government administration and subjects its activities to detailed scrutiny on behalf of the electorate.In order to do this in a timely and efficient manner, it is a function of parliamentary watchdog committees to inquire into matters referred to them by the House, to gather evidence, to give advice and to make recommendations. In order to properly fulfill this function, the House has delegated to committees considerable powers, including the power to compel the attendance of witnesses, the giving of evidence, and the production of documents. The committees have also the power to move from place to place, gathering information and observe problems close to hand. As such, parliamentary committees provide a valuable input to the legislative process and oversight functions of the House and these committees cannot do much without the knowledge and expertise of witnesses from the community and Government.
Further, the House has recognised that the rights of witnesses giving evidence before its committees should be protected; and accordingly, has adopted a range of practices to safeguard those rights. This paper therefore, considers powers of parliamentary committees, in relation to the rights and privileges of witnesses who appear before parliamentary committees. It also looks at the general practice of parliamentary committees in the Commonwealth.
GENERAL TREND IN THE COMMONWEALTH
In most Commonwealth Parliaments, parliamentary committees consist of groups of Members of Parliament (MPs) which are established by Parliament to carry out specific tasks or functions that are committed to them. Committees are established for a variety of purposes. One of the most obvious is that a committee permits Parliament to stretch its resources both in terms of people and time to inquire into issues in ways that the full House may not be able to. In addition, a less adversarial atmosphere takes centre stagein a committee than would be the case before a full House of Members, which aids in reaching consensus on issues. In these smaller groups, Members can also utilise or develop expertise in the committee’s area of enquiry. Experts can also be called to the meetings thereby allowing Parliament to apply skills that cannot be utilised during plenary sessions. An increasing number of Parliaments now hold their meetings with the public in attendance and may also allow input from the public through various mechanisms in order to increase the citizens engagement. This shows that while observing the usual standards of parliamentary debate, Committees can proceed more informally and expeditiously than plenary sessions and benefit from the relationships that develop among persons working together in order to achieve common objectives.
Further, the work delegated by the House to committees usually relates to the examination of Bills, the scrutinising of the National Budget, the scrutiny of the operations of the Executive or the investigation of some issue of public concern. Parliamentary Committees are provided for in most Constitutions as well as in the Standing Orders of Parliament and reflect the evolution of each Parliament’s practice. The number of Members serving on a committee is also set out in the Standing Orders or is established by convention. Furthermore, even if the Standing Orders do not specifically prohibit it, Ministers and their deputies are not usually appointed as members of the committees.
TYPES OF COMMITTEES
The nomenclature of committees varies greatly within the Commonwealth, even to the extent that the same term may have different meanings in different Legislatures. For the purposes of this paper however, the two epithets that are most commonly applied to committees are ‘standing and select’.
In most countries, the term standing committees refers to those committees that are set up to scrutinise Bills or examine delegated legislation, as well as to committees that are set up to oversee the Executive function across many ministries such as the Public Accounts Committee and the Estimates Committee. Select committees, on the other hand, are constituted with specific terms of reference to deal with issues of major public concern. For instance, a Parliament may set up a committee, to inquire into the behaviour or ratify a senior public official or to scrutinise development proposals with wide ranging objectives or consequences.
Furthermore, many Parliaments have committees examining or monitoring the work of Government departments. They may fall under either select or standing committee categories depending on the practice in the country concerned, or they may be described separately as departmental or portfolio committees. The existence of these committees allows Parliament to follow and inquire into the trends of governmental activity as they take shape, instead of being limited to commenting post hoc on the implementation of government policy by the departments they scrutinise. As these Committeesinquire into current issues, they can make an important contribution to policy development.
THE ZAMBIAN SITUATION
Parliamentary committees have been existence in Zambia as far back as the pre-independence era. These committees have undergone growth and procedural changes over the years due to a number of factors such as increased governmental responsibilities and activities. This system brings the Legislature face to face with bureaucrats, thus increasing the information available to Parliament on governmental activities. As part of Parliamentary reforms, the Parliament of Zambia established portfolio committees which have been functioning since 2002. This is in addition to the already established general purposes committees that is, the Public Accounts Committee, Committee on Delegated Legislation, Committee on Government Assurances and the Committee on Estimates.
The powers of parliamentary committees include the following:
- power to require people to attend; committees usually invite witnesses to attend, and witnesses usually attend voluntarily. However, committees may order witnesses to appear before them;
- power to require the giving of evidence; and
- power to require the production of documents.
Parliamentary committees derive these powers from the Constitution,the National Assembly Powers and Privileges Act, Cap 12 of the Laws of Zambia and in the National Assembly Standing Orders.
PRIVILEGES OF WITNESSES
It has been recognised that, in order to balance the considerable powers of parliamentary committees, witnesses appearing before those committees should be given extensive protection. Witnesses possess considerable legal protection as well as procedural protection under the National Assembly Powers and Privileges Act in particular, section fourteen.
Legal protection
Legal protection for witnesses is provided forin section fourteen of Cap 12. Witnesses giving evidence or producing documents before parliamentary committees enjoy the same privileges and immunities as Members and Staff of the National Assembly enjoy in their participation in House proceedings. Witnesses have extensive protection and immunity. Their evidence, either oral or written, cannot be used against them in any proceedings before a court or tribunal. This immunity (given under parliamentary Powers and Privileges Act Cap 12) is regarded as necessary for the Parliament to debate and inquire into matters without fear of interference or of prosecution in the courts. Furthermore, section 17 of Cap 12 also protects witnesses from intimidation and interference as it provides that-
“Any person who-
(a)tampers with, deters, threatens, molests, beguiles or
in any way unduly influences any witness in regard to
a evidence to be given by him before the Assembly
or any committee; or
(b)threatens, molests or in any way punishes, damnifies
or injures or attempts to punish, damnify or injure any
person for having given evidence before the Assembly
or any committee or on account of any evidence which
he has given before the Assembly or any committee:
shall be liable on conviction to a fine not exceeding five
thousand penalty units or to imprisonment with or without
hard labour for a term not exceeding for a term not
exceeding twelve months, or to both.”
Procedural protection
In addition to the legal protection of parliamentary immunity, there are a number of procedures for the protection of its witnesses. Some of these procedures are that:
(i)witnesses are given reasonable notice of the meeting of the committee, and to be supplied with the committee’s terms of reference, and a statement of the matters expected to be raised at the hearing;
(ii)witnesses to answer only those questions that are relevant to the committee’s enquiry;
(iii)assurance given to witnesses of freedom from interference or improper influence (for example, through intimidation, or promise of inducement) in respect of evidence that may be given before a committee;
(iv)witnesses are accorded reasonable opportunity to respond in writing and by appearing before the committee to speak to their written submissions; and
(v)witnesses are given reasonable opportunity to correct errors in the transcript of their evidence, and to submit supplementary evidence as and when needed.
RESPONSIBILITIES OF WITNESSES
Witnesses have the following responsibilities:
(i)to attend a committee hearings when summoned by the committee;
(ii)to give evidence that is not false or misleading;
(iii)to produce documents relevant to the committee’s inquiry if ordered to do so; and
(iv)to be prepared to fully justify any objections to answering questions or any requests to give evidence in private session.
CASE STUDIES
The need to protect witnesses is a practical matter which the Zambian Parliament has had to attend to from time to time. In this regard, the National Assembly of Zambia has upheld the protection of witnesses who have been harassed as a result of tendering evidence to its parliamentary committees. Cases in point may be cited from the rulings of the Honourable Mr Speaker as in the examples shown below:
1.Complaint lodged by Mr David Matongo, the Executive Director of the Food Reserve Agency against Mr Ndambo Ndambo, the Executive Director of the Zambia National Farmers Union.
In this case, the Committee on Agriculture requested Mr David Matongo, the Executive Director of the Food Reserve Agency to appear before the Committee to respond to the findings of the report of the Auditor General on the management of maize by the Food Reserve Agency (FRA). As per the practice, Mr Matongo was assured by the Chairperson of the Committee that he was protected under Chapter 12 of the Laws of Zambia, and that the evidence adduced whilst appearing before the Committee could not be used against him in the Courts of law or, indeed, anywhere else. He was further assured that during the meeting, he would enjoy immunity and freedom of speech.
However, following his appearance before the Committee, Mr Matongo received a letter signed by Mr Ndambo Ndambo, the Chief Executive Officer of the Zambia National Farmers Union (ZNFU), reacting to the report attributed to him in the local newspaper, the Post Newspaper of January 26th 2012. Thus, Mr Matongo complained that the privileges he enjoyed whilst appearing before the parliamentary committee had been violated by Mr Ndambo Ndambo. In view of the foregoing, the matter was referred to the Committee on Privileges, Absences and Support Services for consideration. Both individuals were requested to make submissions to the committee.
In addition to their written submissions, both the complainant and the accused were accorded the opportunity to appear before the Committee to state their sides of the story on the matter. After examining the evidence of both parties, the Committee established that Mr Ndambo Ndambo had indeed breached the parliamentary privilege and found him guilty of contempt of the House. In considering the punishment to be meted out on Mr Ndambo Ndambo, the Committee took into account the fact that Mr Ndambo Ndambo admitted the charge and expressed immense remorse for his action. In addition, the Committee had regard of the fact that, as an outsider, Mr Ndambo Ndambo might not have been privy to the proper procedure to be followed when aggrieved by a submission made by a witness before a Committee of the House. In view of this, the Committee elected to exercise leniency. As such, the Committee only admonished and warned Mr Ndambo Ndambo in accordance with parliamentary practice and procedure.
2.Complaint lodged against the Honourable Rev Gladys Nyirongo, MP, Minister of Lands By Mr Dick Mpheneka, Secretary-general of the Sports Council of Zambia
In this case, the Committee on Sport, Youth and Child Affairs, requested Mr Dick Mpheneka, the Secretary-General of the Sports Council of Zambia, to appear before it. After his appearance before the parliamentary committee, Hon. Rev. Gladys Nyirongo, MP, who at the time was serving as Minister of Sport, Youth and Child Development, visited the premises of the Sports Council of Zambia, which tour was covered by the media. The Minister then held a news briefing during which she subjected the witness (Mr Dick Mpheneka) to ridicule, harassment and embarrassment, making reference to Mr Dick Mpheneka’s submission to the august Committee. Among other things, the Minister mentioned that the witness (Mr Dick Mpheneka) was not qualified to hold the post of Secretary-General, thereby putting him under threat of dismissal from his job.
Following the Minister’s action, Mr Dick Mpheneka wrote a letter to the Clerk of the National Assembly seeking parliamentary protection as he understood that he had parliamentary immunity from any action based on the evidence he submitted to the Committee on Sport, Youth and Child Affairs.
In view of the foregoing, the Hon. Minister was reprimanded before the House and was reminded by the Hon. Mr Speaker that, as a Member of Parliament, she should have been aware that witnesses who appeared before the House or a Committee of the House, were protected under the National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia. Section 14 (1) of the Act protects witnesses appearing before the House or any of its Committees from being questioned on their submissions to a committee. Further, witnesses enjoy the same freedom of speech and protection from harassment and threats as do the Members of Parliament.
In making their decision therefore, the Committee on Privileges, Absences and Support Services took into account the fact that the Hon. Minister was a first offender and that she had pleaded ignorance of the provisions of the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia, and of the National Assembly Standing Orders in relation to the protection of witnesses appearing before the House or Committee of the House. In this regard, the Hon. Mr Speaker reprimanded and ordered the Hon. Member of Parliament and Minister to make a public apology to the House and the Nation for breach of Parliamentary privileges. Thus, the Hon Member of Parliament and Minister unreservedly apologized to the House and the Committee on Sport, Youth and Child Development for the offense. She further apologized to Mr Dick Mpheneka for the embarrassment and injury she caused him out of her actions.
IMPRESSIONS
From the above case studies, it is clear that witnesses are an important part to the efficient running and operations of parliamentary committees. However, witnesses who appear before committees but fail to uphold the standards required are often taken to task and required to explain their omissions or commissions. In support of this section 18 prohibits witnesses from bringing false documents before the committee. This is important in that witnesses, to a large extent, help fulfill the functions of Parliament in their oversight of the operations of government and its departments. There is, therefore, need for witnesses to tell the truth when they appear before parliamentary committees.
Conclusion
Parliamentary committees are a vital aspect to the effective and efficientfunctioning of the Legislature. This is because committees allow Legislatures to pay closer attention to matters of detail of Bills or the work of the Executive than would otherwise be possible. As such, the nomenclature, number and functions of committees must suit the needs and resources available to each Parliament. By so doing, Legislatures will go along way in promoting representative parliamentary democracy and good governance. However, since committees rely so much on witnesses to efficiently carry out their mandate, witnesses who appear before them should enjoy the same protection as that enjoyed by Members of Parliament according to the practice and procedure in most Commonwealth countries.
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