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P.H.A.R.M.A.P.A.C.T |
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P.H.A.R.M.A.P.A.C.T |
PARLIAMENTARY SCANDAL ~ NEW LETTER TO DR. ABE NKOMO
Dr Abe Nkomo By Registered Mail
Chairperson, Health Portfolio Committee 15 November 1999
Co-Respondents: The Speaker and Secretary of Parliament
National Assembly
Parliament of the RSA.
Dr Nkomo, (Madam Speaker & Mr Mfenyana) (whom I shall address herein as one entity)
PARLIAMENTARY EVICTION: GROSS DENIAL OF CONSTITUTIONAL RIGHTS
I write to you on this first anniversary of your unforgettable 26 October 1998 eviction of myself from the Health Portfolio Committee public hearing on the SAMMDRA bill where you used the utterly false excuse of unparliamentary behaviour and of my "swearing at and denigrating people" to not only evict me, but also falsely accused me of "slander and libel" so as to strike our 62-page printed submission from the parliamentary record, and furthermore thereafter resorted to the unusual, but highly illustrative extreme action, of actually confiscating said submission from every single recipient thereof in the committee chamber.
What irks me most, is that in the process, you not only deprived me and the public and organisations which I directly represented, of a legitimate opportunity to present critical evidence to the committee, but in so doing, also deprived two closely allied organisations of their only opportunity to engage the committee, namely the 200,000 member statutory Interim Co-ordinating Committee of Traditional Medical Practitioners (ICC) and the 7000 signature supported Consumers for Health Choice/Freedom (CfH), both of whom PHARMAPACT and I were directly tasked to represent. In the process, you effectively denied both the largest practitioner and the largest and only consumer representative bases their constitutional right to freedom of speech and a democratic input into legislation destined to be highly prejudicial to the vast majority of role-players represented by said submission.
Moreover, your response to our complaint to the Secretary and Speaker of Parliament and to the SA Human Rights Commission is unacceptable to us, for the reasons to be outlined. In effect you have not explained your actions in writing to us on any occasion when we attempted to obtain this through appropriate third parties so as to avoid further direct conflict. As a result you leave us no alternative other than to directly demand that you respond in writing, not only to motivate your original actions, but now to do so in the light of recent legal precedents, namely the pro-constitutional freedom of speech and natural justice De Lille High Court challenge and Supreme Court appeal judgements, as well as the Human Rights Commission report to Parliament arising from our complaint to that statutory body.
I specifically refer you to the accompanying listed documents and allegations therein as well as those raised hereafter, and to the points raised in the SA HRC report, all iro which we require a written response within 30 days. Any points left unchallenged shall be expressly deemed to be tacit admission by yourself of these as undisputed facts and agreed principles, and iro which we reserve our rights iro your actions against us.
Enclosures herewith accordingly having a legal bearing in this regard are as follows:
I specifically draw your attention to the content of this document and its indirect, but nevertheless clear conclusions, that shelter from accountability for actions such as yours under the protection of parliamentary privilege via the constitutionally undeveloped rudimentary Rule 53, is unacceptable in what is purported to be an open and democratic society, whose rights to freedom of expression (including the right to receive or impart information and ideas) and to just administration (natural justice) are guaranteed by the provisions of a Bill of Rights within a sovereign and supreme Constitution, which binds all organs of State, including that of Parliament itself.
The powers granted under Rule 53 of the Standing Rules for the National Assembly (solely cited in your defence) to the effect that "for the purpose of exercising its powers, a portfolio committee shall have the power– d) to decide whether to permit oral evidence or representations to be given or presented before it by or on behalf of an interested person or party and (e) to determine the extent, nature and form of its proceedings, as well as the evidence and representations to be given or presented before it", are specifically afforded to the Portfolio Committee (as pointed out by the SAHRC, not exclusively or automatically to the chairperson) and is furthermore specifically granted "subject to the Constitution, these rules and a resolution of this house". Since Rule 53 only applies to the above if it is subject to said restraints, and no resolution has been cited, clearly delineated constitutional principles, in addition to natural justice, demand ultimate consideration in legitimising application of said powers, and in this regard you have failed miserably on all counts.
The Secretary of Parliament’s response to our complaint, on which you solely rely in defence of your despicable behaviour, that "in terms of the Standing Rules, the Committee acted within the ambit of its authority", is not only at variance with the provisions of the Standing Rules (Chairperson exclusively or automatically assuming the right to Committee’s powers), but is furthermore seriously at variance with several provisions of the Bill of Rights of the sovereign and supreme Constitution (our letters to the Secretary of Parliament dated 27 October and 20 November 1998 and the SA Human Rights Commission report dated 12 May 1999), and your feeble and fraudulent Rule 53 defence is therefore rejected with contempt.
You should be ashamed of your despicable disregard of the fundamental rights of others in pursuit of your own spin-control agenda. Evidence for this role as a puppet of the New World Order, in addition to strategically striking our 62-page submission from the parliamentary record and confiscating all copies in the committee chamber, is your fraudulent assertion in an interview in the Nov/Dec 1999 issue of the Health Independent, just a few weeks after our eviction, that "Traditional African Medicines have never killed anyone", the very antithesis of at least 8-pages of documentary proof to the contrary (*) forming an integral part of our suppressed submission (in addition to serious claims of genocide, ethnopiracy, State mal-administration, fraud, and false parliamentary testimony by vested interests). (* I have included as an attachment, a copy of our 21-page, 15,000 word June 1999 report titled: "MEDICINES REGULATORY AUTHORITY/ DEPARTMENT OF HEALTH TRADITIONAL AFRICAN MEDICINE GENOCIDE AND ETHNOPIRACY AGAINST THE AFRICAN PEOPLE".)
I am extending to you to an opportunity to acknowledge your ignorance in this latter regard to me in writing and to publish a notice of correction in said publication, failing which I shall personally see to it that you face appropriate public charges of fraud. In addition to my earlier arguments in our protest of your unconstitutional and unparliamentary behaviour and in defence of ours, I challenge your gross arrogant disregard for the many additional valid points raised in the SA HRC submission, in particular those bolded and underlined by myself in our edited version. Furthermore, in spite of all the forgoing, to have had the gall to accept the nomination and receipt of the Nelson Mandela Award for Health and Human Rights is to our sense of decency, the most sickening act of hypocrisy and arrogance we have ever had the displeasure of observing. We spoke of criminals in our submission and puzzled over your objection thereto. We are now convinced, as a result of these developments, that the adage "birds of a feather flock together" goes a considerable way in explaining your own behaviour.
Finally, I am formally challenging you on the false charges against us of swearing, denigration, slander and libel. "Swearing", in the only possible application appropriate to warrant an eviction is defined in the Oxford Dictionary as "Use profane oaths to express anger or as expletives (meaningless explanation). In what legitimate context am I accurately accused of "Swearing at people"? Similarly, "denigrate" means "to blacken". Logic dictates that one cannot blacken something or someone which or whom is already blackened. In what legitimate context am I accurately accused of "denigrating people"? You furthermore accused me of "setting my own code of conduct, misbehaving and not listening to you", whilst you were actually the sole person guilty of these exact allegations. It is clear that whilst I was honourably executing my public duty perfectly in accordance with my rights, you were abusing the sovereign provisions of the Bill of Rights, the proclaimed intrinsic values of Parliament and several of the common law rights afforded to all law abiding citizens.
"Slander" (verbal) and "libel" (written) defamation, in the only possible application even remotely appropriate to warrant an eviction, striking from the parliamentary record and confiscation of documents, are defined (Oxford Dictionary) as "a ‘false’ (or misrepresenting) and defamatory (damaging to a persons good reputation) ‘malicious’ accusation / statement". Legally for defamation to occur, the statement (not opinion) must be false and malicious and no absolute or qualified privilege must exist. I shall argue definitively that you are seriously in error in declaring our submission to be slanderous and libellous, and that on the contrary, you yourself are in fact guilty of the very same allegations so falsely levelled at us. Our submission makes no per se defamatory statements, in that we accused no person of serious misconduct nor did we impute to any person the commission of a criminal offence. We used the word "criminal" in the broadest sense of the word, the context (outlined below) of which you refused to allow me to motivate in defence of legitimate use thereof.
"criminal"- a. Of (the nature of) crime; guilty of crime.
"crime"- n. Act (usu. grave offence) punishable by law; evil act; such acts collectively; (colloq.) shameful act;
"guilty"- a. Criminal, culpable; having committed a particular offence. "culpable"- a. Blameworthy.
"offence"- n. Attacking, aggressive action, annoyance, umbrage; transgression, misdemeanour, illegal act.
"evil"- a. Bad, harmful. n. Evil thing, sin, harm.
The only other possible application of the word "criminal" in the above definitions (fine type) and to which we made absolutely no reference, is self-imposed by the actions of the relevant parties themselves, plus official Government action against them in the light of earlier developments widely reported in the press from various sources, amongst others as follows:
"’The work of the Medicines Control Council should be suspended immediately’, a government appointed task team proposed. ’There has been quite a bit of distrust of the MCC’s work in the past years’, said a lawyer on the task team." (Cape Times 25/3/1998); "Senior officials in the Department of Health claim the MCC’s top management have been forced to quit their jobs. Professor Folb, who has chaired the Council for 18 years, said the current MCC had ceased to function: ‘As far as has been explained to me, the operation of the MCC does cease forthwith’. Two senior officials of the MCC were barred from their offices by the Ministry. The head of the Secretariat, Professor Schlebusch and his deputy, Bruchner, have been ordered to vacate their positions. Health Department Director General Shisana told them both to take retrenchment packages or face disciplinary charges for maladministration. Both were at home this week during office hours." (Mail and Guardian 27/3/1998); "MCC chairman Folb is under the impression that he has already been removed." (Argus 29/3/1998).
"Council members confirmed that Schlebusch and Bruckner were told to accept severance packages and said the health department had locked and guarded the two offices". (Financial Mail 30/3/1998); "They arrived at work to discover that they had been locked out and that information had been lifted from their computers." (Eastern Province Herald 31/3/1998); "’South Africa’s drug regulatory body attacked’, reported the British Medical Journal, stating that a report, headed by a British expert in drug regulatory issues, Professor Dukes, strongly criticised the MCC for what it saw as a total breakdown in communication between the council and all its stakeholders, and for allowing potential conflict of interests to develop." (BMJ 4/4/1998). PHARMAPACT were the only consumer and health product sector group consulted by the Dukes Review Task Team, during which opportunity we presented our detailed March 1998 report titled "MEDICINES CONTROL COUNCIL REGULATION OF ALL NATURAL HEALTH SUBSTANCES AS MEDICINES: ARGUMENT AGAINST ALLEGED LEGALITY", which we believe did contribute to the above-mentioned criticisms and actions.
"MCC official’s ‘leave’ still not clarified", read the headline of the following excerpt, translated from the Afrikaans language for the sake of broader readership: "An international company which sells complementary health products alleged that Schlebusch is behind the ‘illegal raids on houses of its members’. Members of the MCC allegedly also gave unlawful instructions that imported raw materials for health products valued at millions of Rands be confiscated at airports and harbours. A member of the company alleged that the MCC ‘mafia’ are also behind a shooting incident at his house." (Die Burger 30/4/1998). The latter press report epitomises PHARMAPACT’s numerous expose’ of MCC "criminal" activities since 1996, including three formal presentations to the Portfolio Committee, of which our above-mentioned 5597-word report formed an integral part of our 62-page submission so callously and unconstitutionally struck from the parliamentary record by yourself in October 1998.
Our bona fides in this matter are such that even if we did in fact prima facie meet any of the above-mentioned defamation qualifying criteria, then all four of the possible legal defences against your charge of defamation would still have legitimate legal application in our case, namely a) justification; b) absolute privilege; c) qualified privilege; and d) fair comment.
"Parliamentary privilege is considered necessary for the robust expression of minds on the affairs of the nation and body politic. Is there sufficient reason to exclude members of the public, like Witness X, from this privilege when they participate in the same public debate as the members and in the same forum of Parliament as the members? It seems difficult to make a principle distinction between members of Parliament and public witnesses before Parliament, when both fulfil the same duty at the same time in the same forum. It is not argued here that the privilege members of Parliament enjoy in public debate, has to be extended to members of the public in the strict legal sense of the word. It is rather argued here that parliamentary privilege as developed in precedent, ought to be extended to non-members by way of analogy as far as they are applicable."
"The reason for this line of argument is to try to construct specific standards that may guide the said power in Rule 53. It is proposed here that the precedent developed in parliamentary debate by speakers and committee chairpersons to regulate the content of submissions by ruling on unparliamentary language by members, can assist in structuring a chairperson’s power to determine the nature and extent of evidence before the hearing. In other words, the precedent that has developed as to what constitutes unparliamentary language for members of Parliament, should also be applied in the context of members of the public’s speech when participating in parliamentary proceedings."
At common law, statements made in the course of proceedings of parliaments and the courts are accorded absolute privilege. In this light, plus that of the Bill of Rights and the position taken on this issue by the SA Human Rights Commission, we additionally invoke the right to the defence of absolute privilege in respect of said proceedings before said parliamentary body regarding said communications concerning said matters of state (subject to reasonable restraints established by actual constitutionally sound precedent as proposed by the SA HRC).
Let it be noted that fair comment on matters of public interest is deemed of such surpassing social importance in a democratic community as to outweigh the competing claim to unqualified protection of individual reputation. Protection of freedom of discussion of public affairs is also considered to be a safeguard against irresponsible political power. A distinction between criticism and defamation is that criticism deals only with such things as invite public attention or call for public comment and does not follow a man or woman into his or her private life, nor pries into their domestic concerns. Criticism never attacks the individual, but only his or her work. Criticism of a public figure, consisting of imputations of their motives, which arise fairly and legitimately out of their conduct, is generally considered as justifiable.
Several aspects of our brief exchange in Parliament on 26 October 1998 before the Committee, as recorded on the Parliamentary Television Channel and in our certified transcript thereof, have not been formally challenged in this or preceding documentation and hence I wish briefly, for the record, to formalise our objection thereto or comment thereon. The first thing that strikes me is your impertinence in referring me to "code of parliamentary procedure", "parliamentary decorum", "code of conduct", and "conventions", when it is you, rather than I, who showed total disregard for all of these. Similarly you accuse me of "undertaking a debate", "entering a debate", "doesn’t want to behave", "don’t want to listen", "not the first time you have behaved like this", "not the first time I’ve had such a demonstration from this group", when to the contrary, against objective analysis of events, it was in fact you yourself who was engaging in debate, not listening and misbehaving. Proof of this is that of the 390 words exchanged, I managed 80, compared with your 270. Furthermore whereas my own contributions were entirely constructive, yours were clearly unprofessional, confusing, obstructive, unconstructively critical, intolerant, prejudiced, condescending and judgmental. You amazingly never once managed to identify the offending word or words, vaguely stating instead "You cannot use such (which?) words"; "I would ask you to withdraw (what?)"; and "withdraw that (which?) word". Your remaining monologue is equally pathetic.
Finally, I draw to the attention of all co-respondents, the principles of Administrative Justice, so conveniently ignored by Nkomo, Mfenyana, and especially by Madam Speaker.
It has been reliably established by legal precedent that while the courts cannot exercise control over Parliamentary laws, they will check the exercise of delegated authority – even the delegated authority to eg "do anything one thinks fit". Administrative law is a practical expression of the rule of law: the government must have authority for what it does, but if it violates fundamental liberties, then citizens must have access to an effective remedy.
The rules of procedural fairness and natural justice. The objective is to ensure that the administrative organ which exercises a discretion relating to the privileges and freedoms of subjects always has an open-minded and complete picture of all the facts and circumstances before doing so. The principle of reasonableness is a check on the exercise of discretion, especially unfettered discretion. One test for reasonableness is the decision-maker’s motive. Another is that of proportionality, the principle requiring that the administrative authority take the least drastic measures possible to achieve its overt goal. An administrative act is void if it violates the principles of natural justice. Our suggested solution concludes this letter.
The Audi Alteram Partem rule. It is not enough for a public official to use his or her powers reasonably; they must also exercise them in a fair manner. This requirement finds expression in the maxim: audi alteram partem (hear the other side), which dictates that persons affected by administrative action, should be afforded a fair and unbiased hearing. Various guidelines have been developed, indicating when to apply the audi-rule within the broader framework of Constitutional supremacy and the rule of law. This common law principle has been codified not only in section 24 of the interim Constitution but also more recently in section 33 of the new constitution of the Republic of South Africa, Act 108 / 1996.
The doctrine of legitimate expectations. In Administrator of the Transvaal v Traub 1989 (4) SA 731 (a), the Appellate division accepted that, in certain circumstances, the dictates of fairness demand that a public official or body should afford a person a hearing before taking a decision concerning him or her - even though the decision has no effect on the person's existing rights, ie that public authorities must afford individuals a fair hearing if they have a "legitimate expectation" of being so treated. This application of the doctrine of legitimate expectation, falls within the development of the theory that the audi alteram partem rule can indeed be applied not only when existing rights are at stake, but also mere expectations.
It is impossible to have procedural fairness or to have a fair hearing if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing (which is the case here), then it cannot be cured by a tribunal’s subsequent decision. The damage created by apprehension of bias cannot be remedied in this way. Any subsequent hearing and resulting decision is void. Consequently we are demanding a written apology from all co-respondents in respect of the treatment endured to date and further, the only acceptable remedy likely to fully satisfy said injury. We demand a renewed opportunity of an updated resubmission and an appropriately lengthy (minimum 30 minutes) extra-ordinary presentation to the full Portfolio Committee prior to revised legislation and accompanying regulations being respectively reconsidered and evaluated by the Committee in 2000. This opportunity includes time to present our alternative regulatory proposals as promised by the Committee back in September 1997, but subsequently quashed by Nkomo, thereby doubling injury to our noble cause.
Any aspect of this communication and accompanying annexes not specifically denied and convincingly refuted shall by simple default be tacitly construed to be a complete submission thereto by all co-respondents to which such aspects might conceivably have application. We trust that this well-intentioned documentation will serve to bring this unfortunate matter to an amicable conclusion with an eventual equally satisfactory solution to the circumstances forming the intellectual and ethical subject matter equally violated by said criticised administration and so serve to keep our Constitution and Parliament from discredit.
Yours sincerely
Stuart Thomson
Director, Gaia Research Institute.
National Co-ordinator, PHARMAPACT.
CC The Minister of Health
The Public Protector
