Are people who have been summoned to give evidence before Parliament or a parliamentary committee entitled to refuse to answer questions put to them?
This issue arose when Parliament’s Public Accounts Committee [PAC] was conducting investigations into the Zimbabwe National Roads Administration [ZINARA] pursuant to reports on that body compiled by the Auditor-General.
According to the PAC’s report, presented to the National Assembly in April and summarised in our Economic Governance Watch 2/2021 of the 2nd May 2021.
• the Minister of Transport and his Permanent Secretary initially refused to give evidence to the PAC on the ground that the Minister had not yet presented the Auditor-General’s report to Parliament (though his failure to do so breached section 12 of the Audit Office Act).
• officials of a company called Univern refused to give evidence about its dealings with ZINARA, citing legal privilege.
The PAC was emphatically of the view that witnesses before Parliament and its committees are obliged to answer all relevant questions put to them and that private persons who have received resources from the State (as Univern had) are not protected by any form of privilege.
In this bulletin we shall see whether the PAC’s view is correct, but first we should explain what is meant by “privilege”.
Meaning of Privilege
Generally witnesses giving evidence in court must answer, and answer truthfully, all questions that are put to them. Some questions however they have a right not to answer. This right is called a “privilege” and the evidence they do not have to give is called “privileged evidence”. Our law recognises several types of privilege:
• The privilege against self-incrimination, which allows witnesses to refuse to answer questions if the answers would expose them to criminal proceedings or to penalties of a criminal nature.
• Legal practitioner and client privilege, which allows legal practitioners to refuse to disclose confidential communications with their clients.
• The privilege against disclosing confidential communications which the court considers would cause undue harm to third parties, and
• Most important in the present context: public interest privilege, which entitles witnesses to refuse to disclose evidence which the court considers would cause detriment to the public interest.
These privileges are listed in the Civil Evidence Act, and it should be noted that the last two privileges – the privilege against disclosing confidential communications and the public interest privilege – arise only if the court or tribunal before which the witness is giving evidence directs that the evidence is indeed privileged. In other words, the decision does not rest with the witness.
Parliament’s Power to Question Witnesses
According to the Privileges, Immunities and Powers of Parliament Act, Parliament and its committees can summon people to appear before them as witnesses to give evidence on oath.
Section 12 of the Act states that a witness is bound to answer any question put to him or her, but need not give evidence or produce a document:
• which is irrelevant to the subject that is being investigated by Parliament or the committee, or
• which, if he or she were giving evidence in the High Court, would be privileged “on a principle of public policy and from regard to public interest”.
Hence, as Parliament is the judge of what is relevant the only privilege a witness can claim is the public interest privilege – and as we have pointed out, that privilege arises only if the court or tribunal (in this case Parliament or the parliamentary committee) rules that the evidence is indeed protected by the privilege.
It appears therefore that witnesses before Parliament and its committees are not entitled to the privilege against self-incrimination or to legal practitioner and client privilege, which means:
• they have to answer questions even if the answers would render them liable to criminal prosecution, and
• lawyers have to disclose confidential communications with their clients.
This may seem harsh and [perhaps even unconstitutional ?], but it should be noted that:
• Witnesses appearing before parliamentary committees in other democracies such as the United Kingdom and Australia cannot rely on privilege to avoid answering questions.
• Evidence given by a witness before a parliamentary committee cannot be used elsewhere, for example in a court, without the Speaker’s permission. So the Speaker has to consent before incriminating evidence can be used against the person who gave it. [Comment: It might nonetheless be better if the Privileges, Immunities and Powers of Parliament Act were amended along the lines of the South African Act, which absolutely prohibits the use in subsequent proceedings of evidence given before a committee of Parliament, whether or not the Speaker has consented.]
• It is essential for good governance that Parliament carries out its constitutional role of supervising other organs of the State – we deal with this role below – and for that purpose Parliament and its committees must have full power to summon witnesses and get information from them. In this regard the public interest overrides the interests of individual witnesses.
Parliament’s Supervisory Role
Section 119 of the Constitution sets out Parliament’s role and it is worth setting out the section in full:
“(1) Parliament must protect this Constitution and promote democratic governance in Zimbabwe.
(2) Parliament has power to ensure that the provisions of this Constitution are upheld and that the State and all institutions and agencies of government at every level act constitutionally and in the national interest.
(3) For the purposes of subsection (2), all institutions and agencies of the State and government at every level are accountable to Parliament.”
More specifically in regard to public finance, section 299 of the Constitution requires Parliament to monitor and oversee expenditure by the State and all government institutions at all levels, to ensure that all revenue is properly accounted for, that all expenditure has been properly incurred, and that any limits on appropriations have been observed.
It would unduly hamper Parliament in carrying out these functions if Ministers, officials and other persons called to give evidence could refuse to answer questions on vague grounds of State or public privilege, or even on the ground that their answers might be incriminating to themselves or others or protected by lawyer/client privilege.
To answer the question we posed at the beginning of this bulletin: people who have been summoned to give evidence before Parliament or a parliamentary committee are generally not entitled to refuse to answer questions put to them.
The only ground on which they can legitimately do so is the one set out in section 12 of the Privileges, Immunities and Powers of Parliament Act, namely that of privilege in the public interest – and it is for Parliament or its committee to determine whether the witness is entitled to that privilege.