An appeal Bernadus Swartbooi and Henny Seibeb lodged at the Supreme Court against their suspension from parliament succeeded yesterday when three judges set aside the suspension and declared it unlawful and of no effect.
Judge of appeal Dave Smuts, who wrote the judgment in agreement with Chief Justice Peter Shivute and acting judge of appeal Theo Frank, found the decision to suspend Swartbooi and Seibeb was outside National Assembly Speaker Peter Katjavivi’s powers and further that it was not made in accordance with the Standing Rules of the Parliament Act.
The two Landless People Movement leaders were suspended from parliament on 19 April after disruptive behaviour during the state of the nation address by President Hage Geingob on 15 April caused their removal from the house.
They then approached the High Court to have their suspension lifted but acting Judge Kobus Miller declined to hear the matter, citing lack of jurisdiction.
Miller said parliament is empowered by the Constitution to control, regulate and dispose of its internal affairs and has the necessary organs to achieve that purpose, and further that due to the principle of separation of powers, section 21 of the Act precluded the high court from usurping the proceedings pending before a parliamentary committee.
Aggrieved by this, Swartbooi and Seibeb approached the Supreme Court and appealed against the whole judgment and order of the High Court.
According to Smuts, the issues for determination are whether the Speaker has the power to suspend members of parliament indefinitely within the context of the separation of powers and parliamentary privilege and the right of the National Assembly to make rules of procedure for the conduct of its business and proceedings – and whether section 21 precludes the jurisdiction of courts.
He added the speaker’s role under the standing rules in relation to the conduct of members does not include taking disciplinary action, as he has no power to do so – only to maintain order in the House.
The appeal judge further held that rule 124, used by Katjavivi to effect the suspension, relates to matters for which the Standing Rules do not provide, which means eventualities not having been foreseen in the sense of not being provided for in the rules.
“Suspension, in this sense, is an eventuality which is expressly provided for in the Standing Rules,” Smuts stated.
According to the judge, “the rule-giver” could not have intended rule 124 to be invoked to afford the Speaker with powers where an item is expressly provided for.
With regards to the provisions of section 21 of the Act seeking to oust the jurisdiction of the courts in respect of proceedings or decisions taken by parliament, the judge said this is governed by Articles 5, 79(2) and 80(2) of the Constitution and the rule of law, which makes it clear that it cannot preclude the Supreme Court from enforcing the Constitution.
In the end, the judge said, the decision to suspend the appellants indefinitely was not made in accordance with the Standing Rules or the Act, and that the decision to suspend was not made by parliament but by the Speaker and cannot stand.
He ordered the Speaker to pay the cost of the appeal to include one instructing and two instructed counsel.
Swartbooi and Seibeb were represented by Patrick Kauta and Gerson Narib, while Katjavivi by Sisa Namandje, assisted by Jamey Janke.