Procedure for Removal of President from office in terms of Constitution

Rules of the National Assembly

10 January 2018
Chairperson: Mr R Mdakane (ANC)
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Meeting Summary

The Subcommittee of the National Assembly Rules Committee met to consider, discuss and make proposals on the drafting of Rules to give effect to the Constitutional Court judgement for the Assembly to establish adequate process to deal with Section 89 of the Constitution – removal of a President from office. The process to formulate removal processes began several years ago. The Constitutional Court ruled, on 29 December 2017, that this be done without delay. In a majority judgement, the Court ruled that a prerequisite for the removal of the President was the holding of a factual inquiry into whether there had been serious violation of the Constitution or law, serious misconduct or the inability to perform the function of office – as outlined in Section 89 (1).  The judgement also found parliamentary Committees and Ad Hoc Committees inadequate for Section89 processes.

Members discussed how to prevent the fact-finding initial stage of the process being impeded by majoritarianism and agreed that mechanisms must be put in place to mitigate this. Members also discussed avoiding the Speaker from taking malevolent decisions in deciding against a motion in terms of Section 89. There was agreement that the Committee needed clearly defined parameters of what constituted serious violation or misconduct to prevent it from bedevilling processes. There were differing views on whether Section 89 was a purely legal and factual matter or involved politics. Members emphasised they should be protected and have the power to freely table such a motion. Members reminded each other that Rules were not only drafted for the current situation but for the future. Another suggestion was to look at the process of impeaching judges and the disciplinary processes for Members themselves. An example was made of companies making use of independent experts when conducting independent investigations or disciplinary processes – this made the process credible and fair and this was a principle Parliament should strongly consider.

Members were provided with a presentation by the Secretary to the National Assembly which looked at the draft rules in terms of Section 89 removal of the President in light of the judgement and areas the Subcommittee might consider updating in this regard.

A solid proposal came from the EFF for the establishment of a panel of five retired judges to conduct a fair, impartial and objective fact-finding mission to establish the grounds for serious violation. It was argued that Members of Parliament, due to party-political considerations, would not be able to conduct an objective process. It was proposed that Members present motions for Section 89 removal to the Speaker for the Speaker to refer to the so-called impeachment panel. The panel would be comprised of five or six retired judges and established at the beginning of each Parliament. Retired judges were proposed because they were not involved in politics and did not have ambition for higher office so could not be seen to be biased. The panel would conduct the fact-finding with the President and political parties allowed to make legal representations to the panel. The panel would then produce a report to the Assembly with recommendations. This was where the political nature of the process would come into play as Members debated and finally voted on the report and made the final decision. There was a proposal that the voting be conducted via secret ballot as this was the way the President was appointed and it protected all Members and the Speaker. Members accepted the fact that the panel could in fact recommend the President be removed while the Assembly could vote otherwise. The idea was to have a three-stage impeachment process of preliminary fact-finding mission, debate in the House and then voting by Members. It was proposed that the panel have the power to subpoena in order for it to be effective, have an evidence leader and be accountable to Parliament at all times. It was emphasised that Parliament could not make use of its ordinary Committee or Ad Hoc Committee system.

Other Members however were weary of the possibility of Parliament delegating or deferring its responsibilities to an external body and felt that Members of Parliament should be included in such panel so that they could question the President. It was argued that the President was accountable to Parliament and not a completely external body. It was proposed that Members form part of or work alongside the retired judges. This was especially if there was a case of misconduct because there were more grey areas in this regard and less so in the case of serious violation of the Constitution or law where it would be easier for the judges to determine grounds in such case. Another option was to have equal representation on such committee – this would prevent the impediment of voting along majority lines.

It was decided that a few options would be drafted for Members to look at by 17 January. A second draft could be provided by 24 January, sent to the Rules Committee for adoption and then possible adoption by the House on 14 February for an impeachment process to begin in March. It was cautioned that the Rules Committee could send matters back to the Subcommittee and there could be back and forth between the two as was experienced in the past. It was also noted that February was a busy month with the State of the Nation Address, its debate, tabling of the budget and budget vote debates – there might be a need for an additional sitting. 

Meeting report

The Chairperson opened the meeting by noting the Subcommittee had been working on procedures relating to removal of the President for a long time, with comparative research beginning in 2015. There were long discussions on some proposals. Members will now return to these proposals in order to finalise the Rules. Rules of Parliament had been tested in the highest courts of the land and were generally not ruled out of order. These Rules would also be drafted for future Parliaments so it was important to approach the process in a non-partisan way. The drafting, discussions and consultations on the Rules was a bit tedious but it was very important. The process would be transparent and democratic for all Members of Parliament to participate in and make proposals.

Today Members would be briefed by Parliament’s Legal Services on the Constitutional Court judgement after which proposals would be discussed vis-a-vis what the Court had already said. The Constitutional Court has asked that the Assembly conduct its work in this regard without delay.

Discussion

Mr J Steenhuisen (DA) felt it important to raise a matter of concern. During the Court process, and subsequent media coverage, very serious aspersions were cast on Members of the Committee, most notably Members of the opposition, who were incorrectly blamed for not submitting proposals. He could not find information that in 2017, Members were asked to make submissions on proposals. According to his information, the last time Members were asked to consider issues was prior to November 2016. A very unfortunate and inaccurate perception was being created that Members were somehow derelict. In the minutes of the last Subcommittee meeting, no issue was flagged as outstanding – this was on 26 October 2017. It is incorrect that Members, specifically opposition Members, were derelict in their responsibility. Proposals were made when required and concerns were raised such as outstanding items and the possibility of the Speaker blocking motions.

Dr M Ndlozi (EFF) agreed with the Member. Moving forward there would need to be consistency and no contradiction. He appreciated the speed with which the current meeting was convened – this pace should be maintained to implement the order of the Court without delay. It would be important for Members to agree on a timetable today within which drafting of the Rules for the implementation of Section 89 should be completed as time was of concern. Members should find consensus on the principles of the judgement.

Mr N Booi (ANC) agreed with the needed to look at a timetable so that the Subcommittee was pragmatic in its approach. Respect should be given to the judgement and what the Subcommittee was asked to do.

Prof N Khubisa (NFP) shared the sentiments of other Members. He noted that there was a time that the Subcommittee worked well together but lately there were concerns of certain matters not being communicated to Members. It was also concerning that information was out in the media before Members were aware of it.

Mr N Kwankwa (UDM) took exception to hearing about the convening of this meeting through the media and that the media was aware of it before Members were – this could not be the way the Subcommittee dealt with matters. He agreed with the need to develop a framework of time in which the work would be done – this would allow for a clear programme of action.

Mr Masibulele Xaso, Secretary to the National Assembly, confirmed that the last discussions of the Subcommittee on the matter before it today were in 2016. Notice of the meeting today was sent out last week – Members were phoned individually.

The Chairperson noted that once draft Rules were developed, they would be given to Members to deliberate on and further drafting would then be done – this was the way in which the Subcommittee conducted its business.

Mr Steenhuisen noted that not all parties were represented on the Committee – the Whips of those parties should be informed of the process of drafting these Rules, informed of the timeframes to make input. 

The Chairperson said the Secretary could look into this although the Subcommittee preferred not to write letters – the Subcommittee was a subcommittee of the Rules Committee and not a free-standing committee.

Dr Ndlozi placed it on the record that the documents before Members today were not circulated as it did not reach Members. It could not be said Members should comment on documents they had never seen before – consistency is key. 

Briefing by Parliamentary Legal Services

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, stated that the Constitutional Court found that current processes in Parliament to deal with Section 89 was insufficient. The Court said there must be a preliminary inquiry to establish the facts before there was any attempt to vote on the motion to remove the President. There must be an established committee to conduct this inquiry and the judgement finds that the Ad Hoc Committee system is not suitable for this. The judgement said the Rules should be clear on how such committee would be constituted and its mandate clearly spelt out. It appears there was a reference, in the judgement, to the Mazibuko case which dealt with a Motion of No Confidence. However this Motion did not reach the Assembly as it did not pass a certain level of consensus. The majority judgement was concerned that the preliminary process associated with Section 89 stopped there. The Rules needed to ensure the process will continue to reach the Assembly. This would mean that even if a majority in the committee decided there was no serious violation, the report would still need to be debated in the House. This is much the same way as when a Private Member’s Bill is not proceeded with by a Committee, the Committee Report is still debated in the House. This is highlighted in paragraph 232 of the judgement where it is said “the majority party in the Assembly would not use its numerical strength to frustrate the tabling and debating of impeachment motions in order to shield the President who is their leader”.

The judgement instructs Parliament to develop specific rules because the status quo was insufficient. These rules must be drafted within a reasonable time. There is some confusion between the timelines of 120 days and 180 days – reference is made in the minority judgement, and the media summary, but no reference to specific timelines is made in the majority judgement only that the work be done without delay. This means as soon as reasonably possible.

It is clear there is a fundamental attempt by the Judges to display they were not overstepping the separation of powers but there is also a difference of opinion with the Chief Justice viewing the matter as a classic case of judicial overreach. The majority judgement did its best to show it was not overstepping boundaries but to inform Parliament that it is meant to do something in terms of Section 89 and should so do it. There is almost a constitutional obligation on Parliament to deal with Section 89.

Mr Steenhuisen said it was clear Parliament would be walking a tightrope to ensure full compliance. The Subcommittee will need to grapple with Section 89 especially around determining prima facie evidence, as the Rules are currently drafted, and determining a serious violation of the Constitution or the law. There are two different scenarios – one in which a Member of Parliament believes the President is in serious violation of the Constitution and tables a motion and the other where the Constitutional Court rules the President has violated the Constitution. There is the possibility that a committee, as set up by Parliament, could end up second guessing or coming to a different finding to the Constitutional Court in terms of defining a serious violation. Would a finding by the Constitution Court automatically trigger a process in the National Assembly? The dilemma would be a committee of Parliament arriving at a different conclusion to the Constitutional Court in terms of violation of the Constitution.  The Subcommittee would need to look at tabling of a motion in terms of Section 89 as well as how to deal with a Constitutional Court finding against the President.

Mr M Hlengwa (IFP) agreed that clarity was needed on what constituted a serious violation of the Constitution. There are also challenges with the fundamental workings of Parliament such as decisions being taken on the basis of a vote. Another matter was the different representations of political parties on Committees – this impacted voting. A deadlock breaking mechanism was required for Section 89 motions in the fact-finding stage. It would be a total roundabout of madness if a committee seeks to arrive at a different conclusion than the Constitutional Court. Guidance on this was needed as it struck the heart of how any fact-finding mission would be conducted. Ultimately the House would have to respond to what the committee established by Parliament finds. It is known that consensus becomes the norm when Parliament is faced with controversial issues.

Dr C Mulder (FF+) urged Members not to complicate matters because there was a huge distinction between Section 89 and 102. Section 102 was a more political process while Section 89 was different as evident in the two thirds majority required in the House for the Motion to pass. Section 89 dealt with removing a President from office in the case of a serious violation of the Constitution. In the Nkandla judgement, the Court found there was a violation of the Constitution on the part of the President but did not say there was a serious violation. Other grounds for Section 89 removal of the President included serious misconduct and inability to perform functions of the office. Section 89 was factual and more straightforward in decisions for removal whereas Section 102 involved a more political process.

Prof Khubisa felt that Section 89 would need to be dealt with in totality i.e. serious violation of the Constitution could not be removed from serious misconduct and/or inability to perform functions of the office. The Subcommittee should maintain focus on the Constitutional Court judgement and then build principles around that. The majority judgement said a prerequisite for removal under Section 89 was dependent on a factual inquiry into whether one of the three listed grounds in Section 89 (1) was present. This should be kept in mind as the Subcommittee went about its work in this regard to uphold compliance with the judgement.

Dr Nlodzi made it clear that the majority judgement held the dictate. While the minority judgement can be appreciated, the Committee would need to implement orders in the majority judgement. What a fact-finding mission would allow for is to hear the side of the President in the form of oral evidence – this was needed when establishing the seriousness of the violation. The serious violation would have to be established factually. The fact-finding mission should be conducted, as far as possible, by legal experts. This was done by companies when an employee was accused of doing something wrong – outside legal experts would produce reports and recommend sanctions if there was violation. These experts however, would not be able to remove the employee themselves – this would still be left to the company. The judgement was clear that Section 89 required an inquiry to establish the facts before a debate in the House could take place. Inability to hold office was different when considering Section 89 removal as it spoke more to mental or physical incapacitation affecting rationality. Determining serious violation must be subjected to a fact finding process by Parliament.

Mr Kwankwa reminded the Committee that Parliament was not a court of law so processes involved in Section 89 were still largely political. When determining the seriousness of the violation, there would need to be a process where the President accounts fully to Parliament. Parliament could not impose criminal penalties – only a court of law could do so. Parliament must determine how Section 89 motions would be tabled. Parliament would also need to decide on how Constitutional Court judgements were processed internally. Calling people to account before parliamentary inquiries should be applied across the board and consistently in future. Determining what was a serious violation is imperative for the Committee.

Mr Booi emphasised the need to work democratically within the constitutional arrangement. The issue of proportionality and its effect on voting was a serious issue to deal with. Members of Parliament are members of political parties and this brought challenges in terms of bringing forward a Section 89 motion. The Rules would need to resolve these matters as it was a crucial reality. The rights of Members to bring forth a motion if he/she was of the view the President seriously violated the Constitution, was important. Members needed to be protected in this regard and given the power to bring forth such a motion. This was a challenge the Rules must deal with. Clarity and guidance was needed on the Rules protecting the power of Members and the power of the minority. The majority of votes could not be the ultimate determinant in resolving this particular challenge.

The Chairperson appealed to Members to think beyond the current situation – the review of the Rules began long before the judgement was made. Rules were being formulated for future Parliaments – Rules should be formulated with this in mind.

Ms N Mazzone (DA) highlighted that she had been on the Rules Subcommittee since 2014 and it already then started debating how to give effect to Section 89 - the problem was that the debate was stopped when it should have continued and then Parliament might not have been facing the current problem. In 2014, the Committee discussed issues now raised in the Constitutional Court judgement and it somewhat foresaw the possibility of such a judgement. In 2014, the option of an external panel was mooted as the Executive is held to account by Parliament and enforcing this accountability is a constitutional obligation of Parliament. It was also discussed back then that the Ad Hoc Committee system had two fundamental flaws – one, it would not give effect to a Constitutional Court recommendation or requirement. This explained why Parliament was in its current position and why the Constitutional Court instructed it to establish a committee to give effect to its recommendations and requirements. Two, a committee established to give effect to Section 89 could not create law – the role of the committee would be to give effect to a problem that existed in Parliament.

The Subcommittee looked extensively at what happened in the USA where Congressional hearings were called and the judicial commission would sit with a group of Senators to act as a jury and hear the side of the President. Interestingly, over 60 possible impeachments have come before the US Senate since 1813 but only one third actually made its way before the jury and two American Presidents were impeached in this way. Even in mature democracies which had gone through such processes many times, challenges remained. Rules of Parliament were not static – as developments occurred, change would occur and rules would have to be adapted. This was normal – Rules were not developed for the current Parliament but for any possible future Parliament and this should be kept in mind. However until there was a fundamental understanding of what would constitute a serious violation, the process of looking at establishing a committee could not go further as the context was required. Defining serious breach or gross misconduct would be one of the challenges of the Subcommittee and must be defined in the Rules. The National Assembly Table could also not be expected to make such judgements on behalf of Members. One of the first Rules the Subcommittee added in 2014 was “the Speaker of the House must act in an impartial fashion” because if the Speaker was not completely impartial, it resulted in Mazibuo vs. Speaker of Parliament where Members could challenge the independence and fairness of the Speaker. If the Speaker was not completely partial, motions would not stand a chance of being fairly considered. When Rules were drafted, Members should be protected against the dominance of the majority in disregarding the minority in any way, shape or form. The Rules should protect against absolute power.

Prof Khubisa reminded Members that Rules were drafted for prosperity.

Mr G Koornhof (ANC) thought discussion thus far was very valuable and valid points were made that all could learn from. The first pillar for the Subcommittee to focus on was the mechanisms spelled out in the Constitutional Court judgement. The role of the Subcommittee was to give effect to and implement the judgement. Rules were being drafted for the short and long term. The 2016 draft Rule now needed to be refined and improved. Parliamentary constitutional processes must be respected – while discussion was important, the Subcommittee needed to focus on the principles to move forward and make a practical recommendation to the Rules Committee.

Mr Steenhuisen, taking the point, felt it was important to reach consensus on what constituted a serious violation or else it would bedevil the process. Currently, the process was that, before the motion even reached the House or Order Paper, the Speaker needed to satisfy herself that it reached the prescripts of Section 89. Someone could argue violating the oath of Office was a serious offence while a Speaker might disagree – the motion then would not even pass the first hurdle on the basis of opinion. The matter could then end up in court again with the Constitutional Court having to interpret what a serious violation was. The Subcommittee would have to then develop a common understanding of what a serious violation was. Guidance was needed on whether there was any case law on what constitutes a serious violation.

Adv Jenkins agreed that defining seriousness was crucial and the crux of the matter for him. If the Constitutional Court found there was a serious violation, misconduct, breach and even if no Member brought a motion in response, the Court would still expect Parliament to do something about the finding and deal with the judgement – this should be kept in mind in terms of how the process could be initiated. Predetermination of whether there was ground for initiating Section 89 would then come in play although emphasis would be on 89 (1) (a) and (b) and less so (c). It would be overstepping judicial function to make a finding on a serious violation. Determining the seriousness and initiating Section 89 was a function of Parliament and not one of the courts. The court makes a finding on whether there was a breach of the Constitution and would declare the action unconstitutional in order to make a just and equitable order. The majority judgement says that Parliament needs to determine seriousness and for there to be a process removed from the political agenda.

Determining seriousness would not be easy – it could be said that certain action is serious such breaching oath of office or looking at intention vs. gross negligence. There is no definition for seriousness in law – Parliament would have to determine its own definition. It is important to remember the Constitutional Court clearly states that the fact-finding, predetermination process to establish whether there was serious violation is separate from debating and voting on the motion. The judgement also highlights composition and voting in the predetermination committee as possible impediments for the process to make its way to the House. It is very difficult to get around the fact that Committees must be represented and constituted proportionally and reach decisions in a democratic way. However even if the predetermining committee found there was serious violation, the House votes as it wants. After all, Section 89 states the President may be removed and not must be removed. It would be easier to define seriousness when looking at intent and gross negligence. To determine this would be allowing the President to give input to the process and the way this is done is something for the Subcommittee to decide and draft into the Rules and also whether the President is entitled to legal representation – given the fact that benefits could be lost, this should be seriously considered. In the second leg of the process, i.e. when the House takes a decision on whether to remove the President or not, Adv Jenkins was of the view the President should then also be afforded an opportunity to make input to the House. 

Adv Jenkins said protection of minorities was raised in the context of the committee report and it not being debated in the House – Section 42 was clear the National Assembly was there for public debate on national issues so there would have to be a debate. The Rules should be clear that minority views could be recorded in the process – minorities and their views cannot be disregarded in the process. Rules for debate would also need to take this into consideration. 

Dr Ndlozi highlighted that Justice Jafta made it clear in the judgement, in terms of Section 89, that “this provision empowers the Assembly and the Assembly alone to remove the President from office. The drafters of our Constitution were alive to the fact that the need to remove a sitting President from office may arise. Hence section 89 allocates that power to the Assembly, presumably because it is the Assembly that elects...the President. It is only fitting that the same body should have the power to remove from office the person it had elected”. “For the impeachment process to commence, the Assembly must have determined that one of the listed grounds exists. This is so because those grounds constitute conditions for the President’s removal. A removal of the President where none of those grounds in established would not be a removal contemplated in section 89(1). Equally, a process for removal of the President where none of those grounds exists would amount to a process not authorised by the section”. “Since the power to remove is institutional, the Assembly must decide and facilitate the initiation of the preliminary stage. It may well be that each member of the Assembly has a right to initiate the preliminary process”. “It is evident that the drafters left the details relating to the grounds to the Assembly to spell out. But the drafters could not have contemplated that members of the Assembly would individually have to determine what constitutes a serious violation of the law or the Constitution and conduct on the part of the President which, in the first place, amounts to misconduct. If this were to be the position, then we would end up with the divergent views on what is serious violation of the Constitution or the law and what amounts to serious misconduct envisaged in the section”. “And since the determination of these matters falls within the exclusive jurisdiction of the Assembly, it and it alone is entitled to determine them. This means that there must be an institutional pre-determination of what a serious violation of the Constitution or the law is. The same must apply to serious misconduct and inability to perform of the functions of the office. The Acting Speaker describes the first two grounds as exhibiting wrong-doing on the part of the President. I could not agree more. This is evident from the language of section 89(2) which stipulates that a President removed from office on any of these two grounds may lose benefits. Once more, it is left to the Assembly to determine circumstances under which the President removed from office on one of these grounds may forfeit benefits”. “For the impeachment process to commence, the Assembly must have determined that of the listed grounds exists”.

It is important for Parliament to have its process. If a Constitutional Court found there was serious violation, Parliament was obliged to initiate Section 89 processes. Justice Jafta, in paragraph 194 of the judgement, outlines that a committee or ad hoc committee would not be suitable for a predetermining, fact-finding mission because of certain impediments such as voting by majority. Another possible framework to use for the fact-finding stage for determining grounds for a Section 89 process is the one used for the impeachment of judges.

Dr Ndlozi proposed a panel of retired judges to establish the facts, in terms of the initial stage of a Section 89 process, and produce a report thereon for Parliament to consider. The predetermining phase did not have to be done by Members of Parliament themselves. There were examples from other countries to look at in this regard. It was not for the Speaker, or any other one individual, to decide on seriousness or not – this would be determined by the panel. The Member envisioned a Member of Parliament drafting a Section 89 motion spelling out grounds for impeachment. The Speaker would then subject the process to the House to vote on. The panel would then establish the facts and hear from the President. This panel could be established at the beginning of every Parliament and could be constituted of five or six retired judges. The President should be allowed legal representation. The panel should have the power to subpoena in order for it to be effective and there could be an evidence leader. This panel would be best to prevent certain impediments such as majorities and ensure the process was fair. The panel would be accountable to Parliament and Parliament would take the final decision on removal of the President or not. 

Mr Steenhuisen highlighted that the judgement spoke to “institutional pre-determination” which was directive for the Subcommittee to grapple with the definition of serious violation. This would also solve the problem of having the Speaker decide on what constitutes a serious violation. This definition was needed before further work could continue. Legal advice was also needed on Parliament’s role and duties in terms of an external committee and whether the President could argue against non-MPs holding him accountable and if this was valid.

The Chairperson reminded Members that as a Subcommittee of the Rules Committee, it did not make final decisions but made recommendations to the Rules Committee, as the mother body, that then made recommendations to the National Assembly. He then asked the Secretary to the National Assembly to present to Members what was proposed in 2016.

Ms Mazzone pointed out that Adv Jenkins referred to gross negligence on multiple occasions. The majority judgement was very careful in that it never mentioned the word negligent. In fact the judges went so far as to say inability to perform function or duty but did not use the word negligent. This was because negligence could not be a defence. It cannot be that if a President was negligent, it absolved him from serious misconduct or contravention of the Constitution. In drafting, the Secretariat of the Committee must be sensitive to nuances in the judgement as it was telling that the word negligent was never used in the judgement. Paragraph 178 of the judgement was imperative in that “since the determination of these matters falls within the excusive jurisdiction of the Assembly, it and it alone is entitled to determine them”. To bring a motion in terms of Section 89 means the motion must be substantive and prevent frivolity. Impeachment cannot be treated as a political basketball because it is very serious and must be viewed as such. The Secretariat should also be mindful of the fact that, as was raised in 2014, there is a difference between debate in Committee and debate in the House. Even when a Motion of No Confidence was debated in the House, the person against whom the Motion was aimed did not have right of reply in the House during the debate. There would be right of reply if the debate took place in Committee.

Dr Ndlozi felt disagreement should not be overlooked – Rules cannot define seriousness. Seriousness must be determined by a process if the grounds for Section 89 existed. Section 89 stated: (1) The National Assembly, by resolution adopted with a supporting vote of at least two thirds of its members, may remove the president from office only one the grounds (a) a serious violation of the Constitution or law; (b) serious misconduct; or (c) inability to perform the functions of office. (2) Anyone who has been removed from the office of President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office. This Section emphasised may remove the President and not must – this is an important reading. Determining a serious violation would include making a value judgement and this cannot be placed in the Rules. It therefore should not be surprising that Parliament does not remove a President if the Constitutional Court finds he/she committed a serious violation because Section 89 said “may remove the President”. If the Section was written as “must”, if a President was found to have committed a serious violation, he/she would be automatically removed. This explains why Justice Jafta said the Assembly alone is empowered to remove a President. The Secretariat could not be tasked to define what constituted serious misconduct. Circumstances for the grounds for initiating Section 89 cannot be predetermined. 

The Chairperson was comfortable with this and agreed with need to set up a process for the Chamber to discuss the matter of serious violation. He asked that the Secretary to the National Assembly present to Members.

Draft Rules 102B-102K, Removal from office of the President in terms of Sec 89 of the Constitution

Mr Xaso, looking at the document, highlighted that Rule numbers would be updated as the Rules had since been amended. It was agreed that a motion to remove the President from office in terms of Section 89 of the Constitution must be based on a recommendation to that effect by a committee of the House appointed for that purpose. The view at the time was that an Ad Hoc Committee would be the best mechanism in this regard but clearly the nature of the committee to be established must be considered. An option was to have a permanent structure that came into play as and when a matter arose.

Mr Xaso said the Rules outlined that “a member may by motion propose that the Assembly initiate proceedings in accordance with these Rules to remove the President from office in terms of Section 89 of the Constitution”. Members should discuss whether it was incumbent on Members to bring such a motion or whether the Assembly could initiate the process itself.

Rule 102C spoke to the criteria with which the motion to initiate proceedings must comply. 102C (a) said “The motion must be limited to a clearly formulated and properly substantiated charge that in the opinion of the Speaker prima facie warrants consideration by the House”. The judgement advocated limiting the role of the Speaker in this regard. The Subcommittee would have to grapple with the vetting process in terms of such a motion being drafted to ensure the motion complied with the Rules. Would the predetermining panel also vet such a motion?

Rule 102D spoke to non-compliance with criteria while Rule 102E dealt with programming of the motion – this is the stage where the motion was either allowed to proceed or not. The question was whether the House, at this stage, would be allowed to block the motion from being processed. The judgement says that this is not desirable so Members would have to discuss this. An option was to go through the process with the House aware that it could not block such motion or that such motion is vetted by the committee. Rule 102F spoke of the scope of debate of the motion where “The scope of the debate on a motion in terms of Rule 102B(2) must be confined to the proposed referral of the charge to a committee and related matters, and may not extend to the charge itself which will form the subject of the committee's consideration”.

Rule 102G referred to invitation to President to respond in writing to charge in writing within 14 days. Rule 102H spoke to the terms of reference of committee – the proposal was that the committee itself determined the seriousness of the charge. Another option, instead of saying beyond reasonable doubt, was to say on a balance of probabilities as the test to be applied in this regard. Rule 102I spoke to process in committee – the judgement said there must be a preliminary process with a preliminary report submitted to the House to say if there are grounds for proceeding with impeachment or not. Rule 102J dealt with consideration of the committee report but this Rule did not deal with the mode of voting in the House – the mode of voting in regard to this motion might be something for the Committee to consider.

Mr Xaso outlined that Rule 102K dealt with removal of President from office in the case of inability to perform the functions of the office, in terms of Section 89 (1) (c). The option of a panel was discussed by the Subcommittee and legal opinion to this effect was obtained. The opinion said there could be a panel, with defined terms of reference, to act as an advisory to a Committee of Parliament. These proposals would need to be updated to be in line with the judgment. In summary, a Member of Parliament could bring a motion under Section 89, a committee would have to decide if the motion complied with certain guidelines, it would need to be decided whether the House would vote on the motion or whether it would go to the structure to deal with Section 89 to vet the motion or decide if the motion had grounds for proceeding on an impeachment process. The nature and composition of such a committee would also need to be decided. Two thirds vote would apply if the motion landed up in the House at the end of the process when the committee concluded its work.

Discussion

Ms D Carter (COPE), referring to the Mogoeng judgment of 22 June 2017 which dealt with the secret ballot, felt voting in the House on removal of the President under Section 89 should be done via secret ballot. This would protect Members of Parliament who, although taken an oath of office, still needed to toe party line. Secret ballot was the same way a President was elected so should be removed from position via secret ballot too. A secret ballot would protect the Speaker and all other Members.

Mr Booi thought it was important to deal with the issue of victimhood and protecting the Member that would craft the motion in terms of Section 89 so that the Member was not shut down by the Speaker for, for example, not crafting the motion adequately. The position of Speaker was very powerful in deciding whether motions would carry or met criteria under Section 89 – other role-players, like the Rules Committee, should be involved in making such decision so as to balance the power of the Speaker. This would also aid in protecting Members. Not having the Speaker as the final arbitrator should be included in processes so that Members were protected. Breaking down matters into sub-topics to determine the seriousness was another way of approaching the matter e.g. Nkandla, rape charges, getting involved in the fiscal portfolio or any case in which the office of the Presidency was demeaned.

Dr Ndlozi thought the Committee should go back to its principles and seek a new attempt. The judgement out-ruled that deciding if the motion for impeachment carries be subject to vote or simple consensus in committee. Members should open their minds to creativity because there were no prescriptions. Members should think about what process could be established to ensure the impeachment process was not blocked by the politics of majoritarianism – this is the first principle for the Committee to deal with in terms of process. The second principle would be the process to subject the President to, in order to establish facts and that also did not succumb to majoritarianism. A Member who brought a Section 89 motion should provide the Speaker with prima facie evidence. The Speaker would then refer the motion to the separate body composed of retired judges to consider Section 89 (1) (a) and (b) cases. Between such a body and the Speaker, there would be leeway to prevent majoritarianism. Another challenge would be developing a process for Section 89 (1) (c) cases for example if the President is incapacitated by a stroke. An additional challenge would be to ensure the President could not challenge being held accountable by body of retired judges when in fact such a body would have been sanctioned by Parliament with delegated fact-finding functions. It would be wise to establish the body of retired judges before any motion was crafted to prevent the body being seen as biased. This was the best mechanism, as proposed by the Member. He also urged the Committee to consider the Judicial Service Commission Act and the process of impeaching judges along with the Powers and Privileges Act and the process of dealing with misconduct of Members of Parliament – the principles were clear in both pieces of legislation.

He emphasised that, upon reading it closely, the judgement gave Parliament the space to make use of judges to ensure there was a fair trial before deciding on impeachment. Retired judges were free from political conflicts and, being retired, had no ambition for higher office. This would strengthen the credibility of the process and ensured the process was politics-free. Politics would be confined to the House when the final decision on impeachment would be made.

Mr Xaso asked if the proposal was for an independent panel, of retired judges, instead of a parliamentary committee.

Dr Ndlozi confirmed this as the judgement out-ruled making use of a parliamentary committee in the initial fact-finding process. The judgement criticised the Ad Hoc Committee, and ordinary Committee, system for the fact-finding mission. The Member made the example of former President Kgalema Motlanthe heading a high-level parliamentary panel looking at legislation passed by Parliament since 1994 even though he was not a Member of Parliament and no once challenged this. The judgement did not prescribe to Parliament what to do but outlined principles for processes to meet and impediments to avoid. The Member proposed the body of five retired judges be called the impeachment panel with a five-year term. One of the judges would chair the panel. In the view of the Member, this was the best mechanism. To reiterate the proposed Section 89 process would entail a Member crafting a Section 89 motion with evidence of grounds for impeachment. The Speaker would then act on behalf of Members by referring the motion to the impeachment panel – if the Speaker acted irrationally, he/she would be taken to court. The panel would carry out the fact-finding process and make recommendations for the House to debate. The President should be allowed legal representation during the process and the panel should be given power to subpoena.

Mr Hlengwa did not want a situation where Parliament was seen to be deferring duties and responsibilities of accountability to another body as is suggested with the impeachment panel composed of retired judges. Parliament was there to oversee the President and Executive so this must be duly considered when making proposals. On the other hand, Parliament itself was failing to hold the President to account – holding a question and answer session once per quarter was not sufficient. This in itself set the Presidency up for failure. A mechanism was still needed for oversight of the Presidency – it cannot be that all departments account to a Committee but the Presidency does not. Parliamentary capacity to hold the Presidency to account in this way was needed. This would also mean there was a parliamentary sounding board. Fundamentally the duty of oversight and accountability resided with Parliament.

Mr Steenhuisen noted that from paragraph 175 to 179, it appeared the Judge himself envisaged a three-stage process i.e. a preliminary process, an impeachment process and voting in the House. This could result in the anomaly of a panel recommending the removal of the President while the House votes otherwise in the third and final stage – this is referred to in paragraph 181 of the judgement. Legal opinion, clarity and advice was required on the power and implications of the National Assembly to delegate its constitutional functions to an external panel not comprised of Members of Parliament or even members of the judiciary as it was proposed the panel be comprised of retired judges. There might be questions around the power of the recommendations made by such a panel. He agreed that there was a need to remove the malevolent discretion of the Speaker. He suggested including a clause outlining that any other transgressions that the National Assembly, by resolution, may regard as a serious violation, to cover unforeseen circumstances. This would create certainty, reduce room for malevolent interpretation of serious and cement the power of Members to table motions in terms of Section 89 without unnecessary impediments.

The Chairperson suggested the Rules be drafted accordingly with the inclusion of multiple possible options and combinations.

Prof Khubisa said it was important to ensure the process incorporated the element of a fair trial, which would involve an independent body, along with merging the constitutional duty of Parliament to conduct oversight. Parliament cannot be seen to be abdicating its responsibility of oversight – this was the crux of the matter because Parliament still needed to play a role because at the end of the day, the buck stops with Parliament. Legal assistance was required to ensure Parliament, with the Rules, is well represented, plays its role and seen not to be abdicating its responsibility. 

Mr Kwankwa, reading the judgement, found it said the current arrangement of the Committee system was inadequate for dealing with Section 89 of the Constitution but the judgement did not say Parliament could not re-look the Committee system or establish a committee to speak to Section 89 – this left the constitutional duty of Parliament intact. While he agreed such session dealing with Section 89 be chaired by a retired judge, there still must be participation of Members because an impeachment through Parliament remained political process as the President was accountable to Parliament. The judgement also made it clear the President must have the chance to account on any charge of misconduct or violation being levelled against him before the matter was debated or voted on in the Assembly. He proposed that Members brought a Section 89 motion to the Speaker and for the Speaker to refer it to the established committee without discretion to decide if the motion was warranted or not. The Speaker, as the head of the Assembly, must ensure there were processes and resources to establish such committee – politically and from a resource point of view it would not make sense to bypass the Speaker. Members should from part of the established committee headed by a retired judge.

Dr Mulder agreed that it was good to have faith in judges and by having served on the Judicial Service Commission; he noted that judges, and retired judges, were only human. Parliament could not shy away from its responsibility in terms of Section 89 of the Constitution. He was a bit sceptical about an independent panel because he did not want to see the power of the legislative arm undermined in any way. Section 89 was not about politics.

The Chairperson asked if the proposal of the Member was that the established committee include Members of Parliament.

Dr Mulder confirmed this saying that Parliament could not outsource its responsibility.

Mr Koornhof noted that there was the option of the committee appointed by the House making use of legal experts. He thought it would be useful for the Subcommittee to get an updated draft rule based on the Constitutional Court judgement so that there were no gaps or ambiguity.

The Chairperson emphasised that Members themselves would be drafting the Rules so there should be clear proposals. There was no external team waiting to draft the Rule – the Secretariat would only assist in putting it together but Members would be making the proposals and input.

Mr Booi thought that the Subcommittee should consider that the judgement was against Parliament in this particular case. He highlighted paragraph 196 and 194 and 192 of the judgement – these sections made it clear the Committee system was inadequate to deal with impeachment so it would be problematic to recreate such a Committee, according to the judgement.

The Chairperson appreciated the observations but asked that Members provide proposals. The Court did not find that any parliamentary structure established would be inadequate to deal with Section 89 (1).

Mr Booi emphasised that Members should read the judgement and the motivation of the Judges. He supported the proposal to use a panel of experts to mitigate the power of the Speaker.  The judgement made it clear that a parliamentary Committee, even an Ad Hoc one, was inadequate to deal with impeachment. He asked that the Subcommittee seriously consider the proposal made by Dr Ndlozi. Paragraph 216 of the judgement said “In any event the proposed order does not usurp the Assembly’s powers. It merely directs that the Assembly must exercise its powers without delay”.

Adv Jenkins thought the crux of the matter, looking at paragraph 179 of the judgement, was that the Assembly bears exclusive power and would have to take a decision. The paragraph states “the Assembly must have determined that one of the listed grounds exists”. The Court found the current Committee system to be insufficient for the specific purposes of Section 89. His reading of the judgement was that whatever mechanism was established, a report would have to come to the House to take a decision that one of the grounds exists for Section 89. If the evidence was clear that there were grounds of serious violation but the House voted otherwise, the House could be challenged. This explains why the majority judgement said seriousness must be defined so that decisions taken were not arbitrary but based on the Rules. The minority judgement expressed that determining seriousness was a value judgement.

Dr Ndlozi noted that the central question was whether Parliament would be abdicating its responsibility if it establishes a panel of retired judges. In his view, this would not be abdication because it would have been a decision Parliament reached itself. He made the example of evidence leaders in parliamentary inquiries, people who removed Members from the House and the Sergeant at Arms who were not actually Members of Parliament but had delegated power in the Rules to act on behalf of Parliament.  The panel of retired judges would not be responsible for removal of the President – it provided expertise and ensured there would be a fair and impartial process in the initial stage. The ultimate power to decide on whether the President was removed or not remained with the National Assembly. Companies employed such fair mechanisms everyday when conducting investigations. At all times the majority judgement took precedence and this was the law for the Subcommittee to follow. There were many ways of holding the President accountable but Members were to focus on giving expression to Section 89. Question and answer sessions, Committees, Ad Hoc Committees and Motions of No Confidence would still remain as mechanisms of accountability. The judgement found that it was only in relation to Section 89 that the Assembly failed in holding the President to account. Section 89 envisages a predetermined process of objective investigation – the highest test in this regard would be carried out by independent, retired judges. Such a process could not be carried out fairly by subjective MPs, from both the majority and opposition, and would be faced with a number of political impediments. Parliament could not do the ordinary thing.

Mr Kwankwa understood the rationale behind the points made by Dr Ndlozi. His proposal was to merge the processes so that MPs could still play a role, alongside the retired judges, as impeachment remained a political process, in his view. This would allow Members the opportunity to interrogate the President. While it would be easy for judges to determine serious violation of the Constitution or law, in terms of Section 89 (1) (a), there were more grey areas in determining serious misconduct, in terms of Section 89 (1) (b). Political parties should still be allowed to play an integral role in the process. Judges would be in violation of the Constitution if they prescribed to the House how to conduct its business. In the process value judgements would have to be made and this would be influence by political ideologies in the case of Section 89 (1) (b).

The Chairperson thought the thrashing of suggestions and options had now been exhausted. A few options would be drafted and Members could then consult their political parties and discuss viability. 

Dr Ndlozi added that in the model he was suggesting, political parties could have legal representatives if they wished but the emphasis was on the first stage subjected to the highest free and fair trial by a panel of retired judges after which it would go to the second stage of debate in the House and final stage of voting in the House.

Mr Xaso also added the option of having a committee constituted where there was equal representation of Members unlike in the Portfolio Committee where there was proportional representation.

Mr Booi emphasised the need for a legal experts at the preliminary stage of the impeachment process. This was in the best interest as the judgement was concerned about the preliminary process as vital to fairness and justice. Members should agree on this principle and discussion could be had on the different ways in which the preliminary committee could be constituted.

The Chairperson agreed that the first stage was the most important one to establish the grounds for the motion before debate in the House as the second stage and voting as the third stage. One option to be drafted would be the combination of a legal panel and Members of Parliament, another option was equal representation of Members with an assisting team. It was accepted that the motion would be subjected to the Speaker based on certain criteria.

Adv Jenkins thought there was general consensus on the principles. It would now be to draft the proposals and bring it back for the Committee to discuss.

Mr Booi proposed Members look at the timetable for completing this work.

Dr Ndlozi recommended the Committee look at Section 177 of the Constitution which dealt with removal of a Judge. There were other parts of the law to look at which would give Members a sense of how can impeachment process can be handled. The judgement did not place a time limit on the work of Parliament but ordered that it be carried out without delay. He suggested Members be ready to present the Rules to House at the end of February so that the process of impeachment can begin in March. This would leave enough time for drafting and consultation.

Mr Steenhuisen was comfortable with this but highlighted this might mean a special sitting given that there was the opening of Parliament on 8 February, response to the State of the Nation Address (SONA) the week thereafter, then tabling of the 2018 budget and budget debates. February only had 28 days so the Subcommittee would be giving itself a 20-day window. Members should also bear in mind the work of the Subcommittee then needs to go to the Rules Committee and only then adoption and/or debate in the Assembly.

The Chairperson said the first task would be for the team to draft options raised today. This draft could be completed by next week Friday. The Subcommittee would then meet the following week to look at the draft after which Members could consult. He agreed that February was a busy month and proposed the process be completed by the end of March. 

Prof Khubisa noted that some Members would be overseas so this should be taken into cognisance – some of the Chief Whips would be in Ghana and the UK. 

Dr Ndlozi noted Members needed to comply with the Constitutional Court outcome. He proposed a draft Rule be received by 17 January for a final draft to be completed by 24 January for circulation. Hopefully the Rules Committee would adopt soon thereafter for possible adoption in the House on 14 February. There would then be appointment of retired judges and impeachment process could occur in March. 

Mr Steenhuisen agreed with need for speedy working but again raised that there may be a need for a special sitting given SONA, responses and the budget.

The Chairperson accepted the proposals. Members should be mindful that the Rules Committee could refer some matters back to the Subcommittee, with further back and forth, as has been done many times in the past. The Subcommittee would therefore not be meeting tomorrow.

The meeting was adjourned. 

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