Motions of No Confidence: adjust National Assembly Rules to appropriately provide for this (1)

Meeting report

Introduction by Chairperson
The Committee had to consider and discuss the adjustment of the Rules of the National Assembly to accommodate motions of no confidence.

Briefing on discussion document for Rules Adjustment
Ms Marina Griebenow, National Assembly Table Staff, presented the rule adjustments proposed for the Speakers report to the Constitutional Court. Drawing from the judgment on 22 November 2012 by Mr Justice J Davis, Ms Griebenow summarised the salient points in the case of Lindiwe Mazibuko, Leader of the Opposition in the National Assembly vs Maxwell Vuyisile Sisulu MP, Speaker of the National Assembly (First Respondent) and Dr Mathole Serofo Motshekga, MP, Chief Whip of the ANC (Second Respondent).
The major questions which were raised in the judgment related to whether the National Assembly had a constitutional obligation to ensure that a motion of no confidence was debated in the House when tabled, in particular, when it had been initiated by a minority party or parties; If there was such a constitutional obligation, was the debate to be treated with a matter of sufficient urgency so that it could not be postponed for an unreasonably lengthy period; and if it was clear that the Rules did not provide the necessary deadlock‑breaking mechanism to ensure what should occur when an impasse occured in this regard. The judgement also asnwered the question as the whether the Speaker of the National Assembly had a residual power to schedule the debate, no matter the views of the majority party.

Ms Greibenow said that the proposed rule adjustments were to be considered in conjunction with the ruling by Mr Justice J Davis in the Western Cape High Court on 22 November 2012 and the order by the Constitutional Court that the Speaker must submit a report to the Court by 14 March 2013 on the progress achieved in the process of ensuring that motions of no confidence were appropriately provided for in the Rules of the National Assembly.

Adjustments were proposed to the current rule 94 which dealt with a member giving notice of a constitutional motion.
Adjustments were also proposed to Rule 95(2)(a) so that it would not prevent a constitutional motion from being proposed.
A new rule was proposed to outline the different types of constitutional motions that could be brought before the House and to identify those motions in respect of which it was being suggested that the Speaker would have residual powers. This was going to be Rule 98A. The motions covered in this new rule included the dissolution of the National Assembly before the expiry of its term; the removal of the President; motions of no confidence; removal of a judge; and approval of a state of national defence.
Adjustments were also proposed to Rules 100; 188; and 190.

Discussion
The Chairperson said that it would be good that when the Sub-Committee went back to the Rules Committee, it would have made considerable progress on the adjustments to the rules.

Mr J Jeffery (ANC) said that his understanding was that the Committee was looking for methods of dealing with the issue of motions of no confidence that would apply across the board by accommodating all parties. The proposed adjustments should make reference to particular sections and articles of the Constitution. Making reference to the Constitution as a whole would be too broad and could give rise to interpretation problems if the Constitution were amended. The options and proposals which the Committee was going to make had to be fair to everybody and were within the principles of democracy.

He asked if the right to debate motions of no confidence was unfettered. The line also had to be drawn on issues of priority between bigger and smaller parties. With regards to the Programming Committee, the majority party in Parliament was supposed to determine the agenda of this body. An opposition party should not be able to stop a Bill from being scheduled for debate. The adjusted rules also had to stipulate how often the rights to a motion of no confidence could be used.

The Chairperson said that the point of departure of the Committee’s engagement was to set the proper tone for the adjustment of the rules.

Mr M Oriani-Ambrosini (IFP) said that it was inconceivable that the National Assembly would allow anyone to stand up on any day and introduce a motion of no confidence against the President. The Committee needed to come up with an objective parameter and criteria. He suggested that a motion of no confidence could only be held once every six months unless its urgency was attested to by one-third (1/3) of the Members of the National Assembly. It was the “freedom of conscience of the people which puts the President in office so that same freedom of conscience should decide if it wants to keep the President in office”.

Mr A Watson (DA) said that committees of the National Assembly had always been operating on a consensus basis so it was not advisable for the Committee to put in provisions which would limit the exercise of the constitutional mandate of Members.

The Chairperson said that Members should remember that the directive of the Court required that the National Assembly should show the progress it had made with regards to accommodating motions of no confidence in its Rules.

Mr Watson said that the progress did not mean limiting the constitutional rights of the Members.

The Chairperson said that the objective was not to limit the rights of Members but to give expression to the rights in a structured way. He reminded Members that the purpose of the discussion was to brainstorm and map the way forward with regards to adjustment of the rules.

Ms J Killian (COPE) said that the Committee in adjusting the Rules should remember to consider and incorporate the relevant constitutional provisions. The Committee should seek the advice and assistance of Parliament’s legal office and team so as to ensure the quality of the adjustments. Bearing in mind that the passing a motion of no confidence is a right, it would be good for it not to be over exercised. It would be good if it could be done once in six months. Parliament functions on proportionality so this was going to ensure that the exercise of motions of no confidence was not transformed into a frivolous exercise. It was a serious matter and had to be treated as such.

Ms C September (ANC) asked if the Table Staff had considered any internal mechanism to deal with the problem. How did the committee see itself taking responsibility on progress made and what should the progress be? The answer to this question was going to shed light on what the Committee actually wanted to do and how it planned to do it.

Ms S Kalyan (DA) said that the Committee had to first look at the composition of the Programming Committee, its role and functioning. The Committee had to do what was right for the country and not what was right for the ANC and just because the ANC had the majority did not mean it had the right to decide.

The Chairperson said that the responsibility of ensuring that Parliament functioned properly weighed more on the side of the ruling party.

Adv M Malale (ANC) said that for motions of no confidence to be brought before the House, there needed to be real matters of concern and aggravating circumstances and not just that it had to be done every six months. On the issue of the composition of the Programming Committee, it was good for Members to return to their various parties to discuss the matter and come up with solid points and positions.

Mr Jeffery said that with regards to the composition of the Programming Committee, consensus had always been the guiding principle but it came to a point where the opposition party felt that they were not being considered. Even if decisions were taken by consensus, there had to be a quorum. The Programming Committee should be a consultative forum and inclusive body where parties are consulted.

Mr Oriani-Ambrosini asked who would be the decision maker at such a forum.

Mr Jeffery replied that, like in any legislature, the objective was to have the majority party determine the programme. This was the case in the Western Cape Provincial Legislature where the DA determined the programme even if the ANC was unhappy with it.

The Chairperson said that it was important for the discussions to be focused towards setting the pace for the adjustment of the Rules. He added that the discussions had narrowed down the issues and the context for the adjustment had been established.

Mr Oriani-Ambrosini said that the discussion so far was just the expression of personal views, positions and comments from members.

Mr Jeffery said that the Table Staff should be instructed to summarise the discussions and positions raised into options which would spell out the modalities of the adjustment of the Rules.

The Chairperson said that the main points of the discussion of the day were going to be put into crystal clear options stating the routes which the Committee would take on the adjustment of Assembly Rules. The points would be circulated to Members in writing and if anyone felt that some relevant points had been omitted or need to be included, it is up to them to revert to the Committee with such points.

Ms Greibenow asked if the issue of the secret ballot could be raised in the written options.

The Chairperson replied that in this context, the constitution only provided for a secret ballot when it came to the election of a President. It could however be included in the document for Members to give their input.

Mr Jeffery suggested that the Table Staff involved with the written options should consider them as top priority so that members could get feedback as soon as possible.

Mr Oriani-Ambrosini suggested that the options should be very brief and should just state what route the Committee should take on the adjustment of the rules.

The Chairperson replied that making the options brief would be good but it was important for the document to clearly state the context and the background to the options.

The meeting was adjourned.