Rules for Removal from office of President ito Constitution; Guidelines on Removal of MP from Chamber

Rules of the National Assembly

07 April 2016
Chairperson: Mr R Mdakane (ANC)
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Meeting Summary

The Subcommittee on Review of the Assembly Rules continued to work through the Guidelines and the Determinations for Chapters 5 to 12. It deliberated on the proposed Disciplinary Committee which is aimed at looking into the physical removal of a member from the House. This envisaged committee is going to look at the conduct of the evicted member, the security personnel, and the Speaker. But Members could not agree on whether the meetings of this envisaged committee should remain open or closed.

The Subcommittee did not finalise the motion of removing the President as contained in Draft Rules 102B - 102K. It heard the legal opinion on the establishment of a committee to deal with issues arising out of Section 89 of the Constitution. The Chief State Law Advisor said the Speaker would refer the matter to the National Assembly and state there is prima facie evidence. The problem with this is that in our case the Speaker represents the ruling party. He suggested having an independent panel of legal and other experts to look at the evidence and formulate a decision to be presented to the President who may respond. The Subcommittee did not finalise these draft rules as it could not agree on whether the Speaker should preside over the ad hoc committee that would decide the removal of the President.

Meeting report

The Committee continued to work through the draft Guidelines and Determinations:

Chapter 5 Committee for Consideration of Removal of MP from Chamber
Mr Kasper Hahndiek, Consultant to Parliament, briefed Members about the proposed Disciplinary Committee which is aimed at looking into the physical removal of a member from the House. He said the main intention is to ensure that the use of the power to use security services is limited. The circumstances of such a removal by the presiding officer is to be referred to this proposed committee. The duty of this committee would be to assess the circumstances that led to the removal of a member, not to review the Speaker’s ruling.

This envisaged committee is going to look at the conduct of the member, that of the security personnel, and that of the Speaker. Closed committee meetings would be better in order to avoid grandstanding, but the results would be declared open. He proposed that this envisaged committee should not be referred as a Disciplinary Committee but rather an ad hoc committee to assess the eviction of a member from the House.

Ms N Mazzone (DA) pointed out that it is frightening to see a member evicted. She observed that the security personnel use minimal force when ejecting a member from the House and there has been a professional approach. If a member has been removed forcefully, the envisaged committee should start to exist. She said a member must have the right to request the hearing be open or closed. Personally, she prefers these meetings to be open because it has been proven there is incongruence between what happens in the House and the outcome from these disciplinary committees.

Mr Kasper Hahndiek replied that some members do these performances for grandstanding purposes so that they can be forcefully removed from the House. That is why there is a need for these meetings to be closed and he has over the years seen how successful closed meetings are because of cooperation between the different political parties.

The Chairperson supported Mr Kasper Hahndiek’s idea that the meetings should be closed because he sees this committee as one of assisting each other, and not to find anyone guilty.

Ms Mazzone commented there is no provision in the rules that states that when the member has been evicted and after admitting and regretting a statement he/she has made, can come back to the House.

Mr J Steenhuizen (DA) commented that having closed meetings could be interpreted as grandstanding.

Mr Kasper Hahndiek stated that some committee meetings can be closed as long as reasons are presented for why they have to be closed.

The Chairperson indicated these matters would be presented to the Rules Committee for consideration so as to protect the integrity of the individual and the institution. The Committee needs to avoid cases where there would be fights that would go to the courts.

Mr Kasper Hahndiek said all these things depend on the functions of this envisaged committee and its functions need to be spelt out clearly.

Mr Enver Daniels, Chief State Law Adviser, stated that the removal of a member is an extreme measure. The Speaker, irrespective of the circumstances, is expected to remain calm all the time. The Committee should ask itself what is it that it wants this envisaged committee to do. What the opposition members said about the openness of this proposed committee in the previous meeting is that the public needs to know why a member has been subjected to the committee and that the member‘s explanation should be made public because he is a public representative.

Ms Mazzone commented that this proposed committee would come into existence when someone has been forcefully removed from the House. The Committee needs to be specific that this committee is established in terms of Rule 53(a). The proposed committee needs to respond to the House and not report to the Speaker because the Speaker would be there, anyway.

Mr M Booi (ANC) remarked that the proposed committee is there to look at what really happened – how the evicted and the Speaker arrived at their decisions. This is an immediate committee that would find solutions if there are political problems. The envisaged committee is there to protect each other’s rights. He mentioned that sometimes presiding officers do make problems and there is no recourse. The proposed committee would be there to protect the members within the Rules of the National Assembly.

Mr Perran Hahndiek, Committee Secretary, remarked that in his personal view the Speaker has been reluctant to evict members and many parties have come to understand the rules of the House, except when Mr Julius Malema (EFF) was removed from the House. The three functions of the proposed committee outlined by Mr Kasper Hahndiek should be spelt out clearly, and he asked if the report of this proposed committee would be given to the Speaker or not.

Ms J Kilian (ANC) said it is important to look at the details of Rule 53(a) in establishing the proposed committee. If the steps in Rule 53(a) have not been observed, the eviction could be investigated, but it is impossible to have a review of the Speaker’s ruling because the Speaker’s ruling is final.

Mr Steenhuizen proposed that the envisaged multi-party committee should be a subcommittee of the Rules Committee and should be given powers to report to the Rules Committee.

Mr Kasper Hahndiek supported Mr Steenhuizen’s idea. He said the Speaker is not going to have any right to object to the findings of the proposed committee. The findings would be a report-back away from the events of the House.

Ms C Dudley (ACDP) said the Chief Whips’ Forum is ideally suited for this situation and she sees no reason why this proposed committee could not be constituted like the Chief Whips’ Forum.

The Chairperson replied saying the Chief Whips’ Forum is a consultative structure, not a decision-making body. But the point Ms Dudley is raising should be considered.

Mr Booi said the proposed committee is a new formation unlike the Chief Whips’ Forum that constitutes political heads. The proposed new structure would be able to state if the presiding officer was right or wrong so as to avoid unnecessary court cases.

Mr M Ndlozi (EFF) indicated he anticipates more problems this year regarding the matter. Constitutionally, you cannot be removed from the House by virtue of what you have said in the House. To get out this quagmire, he said it is better to obtain a legal opinion. When a member has been removed from the House, there must be recourse. He asked if the proposed committee would be in a position to report on the conduct of the Speaker if the Speaker has been found to have violated the Rules of Parliament. He proposed that the dis-order of the presiding officers should be added clearly in the rules of this new proposed committee.

The Chairperson proposed this matter follow the suggestion Mr Steenhuizen put forward that this proposed committee should be a subcommittee of the Rules Committee.

Mr Ndlozi proposed there should be a lawyer to help in the drafting of the rules about the removal of members from the House.

Mr J Mthembu (ANC) stated it is important to look at the implications of the Constitutional Court judgements because they are going to have an impact on the Rules of Parliament.

Mr Ndlozi said the responsibility of the members is to restore the confidence that people have in Parliament, especially when you look at the Constitutional Court judgements about how Parliament broke its own rules in the removal of members from the House. So, it is important not to make costly rules that would take them back to the courts.

Ms Kilian suggested that the Rules Committee should be approached about the problems the Committee is facing regarding the Constitutional Court judgements.

Mr Mthembu supported Ms Kilian, saying it is a good idea as this would assist Parliament and political parties in the interpretation of the judgements on the violation of parliamentary rules.

Ms Mazzone proposed that it is important to have an expert in constitutional law or a judge to assist on how things could have gone wrong because it has been four years of struggling with the rules and this has been a merry-go-round. She said Mr Kasper Hahndiek should forward the proposal to the Rules Committee and the Chairperson should sit down with the Speaker and let the Speaker know there are new developments and the process should not be rushed.

Mr Ndlozi said most rules find their origin in the Powers and Privileges of Parliament Act. The Constitutional Court judgements do have an impact on the rules. So, it is better to get a legal opinion before the Rules Committee sits, not after it has met.

Mr Kasper Hahndiek commented it is important to get a legal opinion on the current state of affairs, especially on the Constitutional Court judgements. The oversight mechanisms are fine. By engaging with experts, the Committee would determine if there is a need to add further rules to ensure nothing is in conflict with the judgements.

The Chairperson maintained it is not important or necessary to have the services of a legal practitioner or advocate because it would take years for that person to understand the context and it must be understood most people do not know how Parliament works. So, state law advisors and parliamentary legal advisors should help the Committee because they have been with the Committee for a very long time, and they need to study the rulings and brief the Committee about them.

Ms Mazzone indicated the Committee has done so much work that could not be allowed to go in vain. The Committee should present to the Rules Committee rules that have been discussed thoroughly having used both external and internal help.

Adv Frank Jenkins, Senior Parliamentary Legal Adviser, stated they need seven working days to do their work and brief the Committee.

Chapter 6 Procedures to be followed for electronic and manual voting
Mr Perran Hahndiek took Members line by line through the procedures to be followed by the Speaker for electronic and manual voting. An option that has been added states: “Record only the numbers for, against and abstaining (not the parties). He noted that with manual voting the names of the voters who show hands should not be called, but only count the votes by Whips.

Mr Steenhuizen, on Rule 81(1A) which requires the Rules Committee to determine time allocation per party for declaration of votes in line with the principle of proportionality, felt that time allocated for smaller parties is unfair. Rather allocate three minutes instead of 45 seconds. That is a fair way of participating in a democracy and better way of discharging our duties.

Mr Booi stated that the Constitution promotes participatory democracy. The parliamentary space is important to the people the parties represent. It is better to allow people to speak their concerns and to be fair when it comes to time allocations for declaration of votes.

Mr Kasper Hahndiek proposed that more time should be spent on the debates. If a smaller party has got more to say, then that could be accommodated in the plenaries.

Mr Perran Hahndiek said most of the time declarations do not take too much time, but do take more time during budget votes.

Regarding Rule 81(4), it is proposed that the current practice for the global time allocated for declarations of vote per party be retained. It is further proposed that the same allocation time should be applied to questions to the Executive on consideration of the Adjustments Appropriation Bill.

Chapter 7
Notices of motion
Mr Perran Hahndiek read Members Rule 97(2) and 98(2).

Mr Steenhuizen opposed the proposition by Rule 98(2) that the number of notices of motion on any sitting day be limited by the time allocated for such notices. He reasoned that parties bring to Parliament the business of their constituencies.

Ms Kilian disagreed with Mr Steenhuizen, saying that has been a practice for a long time.

Mr Steenhuizen replied that it is impossible to compare the current parliament to the previous one. This is the only time the parties have a chance to bring matters of their constituencies forward to the Parliament.

Ms Mazzone said the Committee never agreed on this matter before. There were options and Members never agreed on the number and time of motions. No one knows what happened to the motions. These rules are drafted for Parliament going forward, not for the ruling party.

The Chairperson indicated that members should be allowed to raise their constituency concerns, maybe, once in two months. There is a need to find ways of accommodating this issue because members need to find space to articulate the concerns of the people they represent.

Ms Kilian stated that members have also got an option of submitting concerns beforehand to the Speaker. There is no problem with the 15 minutes – the time proposed for notices of motions. That time could be extended to 30 minutes, depending on the nature of things to be discussed by Parliament.

Mr Kasper Hahndiek indicated that the rules now have got detailed criteria on how motions must comply. If the rules are adopted, the National Assembly Table Staff would be compelled to observe the criteria in place regarding the rules.

The Chairperson stated that once they start using mini-plenaries to debate motions, things would start getting better. Time for debate must be encouraged in Parliament, and not be the main hindrance for not debating.

Chapters 9 and 10
Members were read Rule106 of Chapter 9 and Rule 107B of Chapter 10, line by line.

Mr Steenhuizen, on Rule 107B, proposed that “may” be changed to “must” on Point 6.

Ms Kilian said Members should ask themselves what they want to achieve with the guidelines.

Mr Kasper Hahndiek said the guidelines are to anticipate that the Rules Committee reports to the House.

Chapter 12
The Members were given time to go through Rules 172 and 188(1)(g). Rule 172 proposes that the Subcommittee on the Review of Rules consists of 8 members allocated as follows: ANC 3; DA 2; EFF 1; other parties 1.

The Chairperson said he does not have a problem with the number of party representatives as long as work is going to be done.

Mr Perran Hahndiek said it is just for fair representation and the size was a matter of technical consideration.

Removal from office of President ito Section 89 of the Constitution: Draft Rules 102B - 102K
Mr Kasper Hahndiek proposed the motion to be put before the House and the President be given a chance to account, but not before the House.

Chief State Law Advisor, Mr Daniels, reminded Members of the procedures followed for the impeachment of the President in other countries. He then read Members the proposal for the setting up of a committee of legal experts who are not Members of Parliament.

Mr Kasper Hahndiek suggested that before the envisaged committee is set up, the Speaker has to be satisfied there is prima facie evidence, and that would seem to work in a multi-party democracy.

Mr Daniels said the Speaker would refer the matter to the National Assembly and state there is prima facie evidence. The problem with this is that in our case the Speaker represents the ruling party. So, it is important to have an independent panel of legal and other experts to look at the evidence and formulate a decision to be presented to the President so that he/she could respond, if he/she wants to.

Mr Kasper Hahndiek voiced a concern about the mandate of such a panel. He asked if it would be assumed that the powers given to the panel are powers of parliament or if they would be given legal powers to do their work.

Mr Daniels stated that in terms of the Rules, Section 52 gives the National Assembly powers to appoint an ad hoc committee to bring in an independent panel of legal experts to evaluate the evidence and present findings to this ad hoc committee.

Adv Frank Jenkins, Parliamentary Legal Advisor, indicated we could not have a permission-seeking committee. That would be testing the Constitution. The President must be given a platform to respond to the matter, but not in front of the House. A provision must be made that a political party could forward a motion with evidence that the President has violated the Constitution.

Mr Perran Hahndiek pointed out that we could not have a process that could take 6 months to look into the process of impeachment. In many parts of the world the President resigns when an impeachment process starts.

Adv Jenkins said this did not mean it could not be referred to the independent panel of legal experts. This should take place within 5 to 7 days, and the panel must present to the ad hoc committee.

The Chairperson stated it is not a good idea to say the President must resign without having followed, first, the procedures of removing a sitting president. If you remove the President without giving him the platform to explain himself, that is very dangerous. But if procedures are followed, the President could be removed. A vote of no confidence is a political grand standing.

Ms Kilian indicated that mechanisms are needed to determine the prima facie evidence. There must be a specific process to be followed so that the ad hoc committee and legal panel could do their work. As an example, she said that if a member produces a Bill before the House, a Bill that is seen to be in conflict with the Constitution, it would not be accepted without scrutiny.

Ms Mazzone pointed out that judgements from the courts prove that the Parliament has been inaccurate and that is why it keeps on losing. The parliamentary legal team has not been taken seriously because it has spun things to suit the executive. She asked if it is necessary to screen the ad hoc committee or panel of legal experts. The recent judgements from the Constitutional Court stated that the Parliament has flouted its own rules and proved that the President has violated the Constitution. If that is not regarded as serious in nature, it would never be serious again. Now the DA is laying charges against ANC MPs for dereliction of duty. The Committee needs a determination on this serious issue. When the Constitutional Court makes such a finding, that must be given the attention it deserves. It is not good to see a President not resigning after violating the Constitution. Natural justice did not happen when the Minister of Finance was sacked, yet these are political appointments. There must be clarity on the panel of the legal experts, whether that happens or not.

The Chairperson stated that the state law advisor has presented some options. Members need to apply their minds on the matter. It is more complex than they thought, and the Committee has to make sure that those that come after them know how to deal with this issue.

Mr Daniels added that the panel of legal experts could also involve medical experts or whatever expertise that may be required.

Adv Jenkins stated that in most cases presidents resign before impeachment is announced. We need to give substance to Section 89 of the Constitution. We do not have to wait for the court. Members could do that. The scope of the ad hoc committee is to do that work. Constitutionally, it is not necessary to have a judicial process in this process.

The Chairperson asked how possible it is that we take a decision to impeach a President and then we invite him or her to explain to the House when already the matter has been voted on. He asked what would happen to the President.

Adv Jenkins replied that the President has to be given the opportunity to answer before the impeachment process has taken place. The process of removing the President could not be taken on a review in terms of Section 89.

Mr Booi stated that the ANC has removed a President before and that created divisions in the party and community. In terms of the law, he (Mr Thabo Mbeki) could have appeared before the House and state he done nothing wrong. But he agreed to cooperate. So, we need a South African approach in removing a President. The Constitutional Court did not say the President must be removed. We need to define what we mean by removing a President and know the processes to be followed. Thabo Mbeki is the one who got us out of the constitutional quagmire by agreeing to cooperate.

Mr Kasper Hahndiek, with regard to prima facie evidence, said the Speaker is empowered by the Rules to substantiate the evidence. It is critical that the Speaker retains those vetting powers. The prima facie evidence must be presented by the Speaker. He said that he had concerns about having non-members without legal authority in the ad hoc committee. There is no protection from them in terms of the procedure in carrying out their duties. They would need assistance.

Mr Booi disagreed with Mr Hahndiek that the Speaker should preside over the ad hoc committee that would decide on the removal of the President. Already, the judgements from the courts prove that that never worked.

Mr Daniels said the powers of this ad hoc committee should be detailed in the Rules. We need only a process that would withstand the Constitution. How that ad hoc committee is set up is going to be detailed in the Rules. For instance, we could have a retired judge, medical practitioner, etc.

The Chairperson maintained that the Rules are going to be drafted irrespective of the circumstances that have taken place. Politically, it is nice to raise these motions. But there are legalities to be followed. Voting ‘yes’ or ‘no’ remains part of decision-making. Now we are drafting rules from scratch so that we know what to do in future. He asked Members to go through the documents and come up with proposals to be discussed when the parliamentary legal advisor comes to present his proposal and findings on the matter.

The meeting was adjourned.

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