The sub-committee on the Rules of the National Assembly considered and reviewed the draft rules to Remove a President, in terms of Section 89 of the Constitution.
The Secretary to the Chairperson, prior to taking the sub-committee through the draft rules, reminded Members that at the previous meeting, they had discussed three options that had been presented, as well as the principles emanating from the judgment of the Constitutional Court. Those three options were the establishment of a panel of three judges; a committee composed of Members with discretion to consult the panel; and a committee composed of Members with an obligation to consult the panel. After discussion, there had eventually been two options. One was a hybrid option, where the committee would be established and had to work hand in hand with the panel of judges. The panel would be composed of three judges, and the fourth member would be the evidence leader. There had been a discussion about the composition of the committee, where different views were expressed, and it had been agreed that the committee would consist of one Member from each party. The draft rules had been put together on the basis of the previous discussion. The drafting of the rules had started with defining certain terms. After taking the Committee through the rules, he said that any changes made would be incorporated in the draft rules.
Members considered the draft rules sub-heading by sub-heading. They suggested that definitions should be expanded to include ‘negligence’ and ‘acts of recklessness,’ as well as providing a detailed list of conducts that could be viewed as a serious violation of the Constitution.
Referring to the initiation of a Section 89 procedure, Members said that a motion ought to be substantive, implying that the motion ought to be clearly and substantially supported. The President, as a Member of Parliament, ought to be informed of the motion from its initiation. Members were of the view that a rule was needed to provide for the coordination and management of multiple motions of non-confidence submitted by either individual Members or political parties. The question was, therefore, which motion would be given priority. Members felt that all motions should be considered in accordance with the sequence of their submission, but the first motion to comply with all the criteria had to be given due consideration. Members felt that the phrase “with due urgency” gave too much power to the Speaker, in that the Speaker enjoyed the discretion to schedule a motion for consideration, and should be replaced with the phrase “with due priority.”
Some Members discussed the issue of majoritarianism, arguing that Members of the ANC might block a reasonable, clear and substantiated motion. They were therefore in favour of establishing a panel consisting of experts, and a committee comprising a Member from each political party. A concern was that a panel of experts would not enjoy the privileges enjoyed by Members, such as having a say in the National Assembly. Members therefore agreed that a committee should be established, which would in turn establish a sub-committee.
The Chairperson said the Secretary would take the Committee through the rules, and Members would be commenting on them. In essence, the rules had been drafted in accordance with the previous discussion. However, Members would confirm whether the rules were a true reflection of the discussion. They were at liberty to add or delete some of aspects. The Committee was doing what the President had assigned them to do.
Draft Rules to Remove a President in terms of Section 89 of the Constitution
Mr Mkhuseli Mbebe, Secretary to the Chairperson, said that in the previous meeting the sub-committee had discussed the three options that were presented and the principles emanating from the judgment of the Constitutional Court. Those three options were the establishment of a panel of three judges; a Committee composed by Members, with discretion to consult the panel; and a Committee composed by Members with an obligation to consult the panel.
After discussion, there were eventually two options. One was a hybrid option, where the Committee would be established and had to work hand in hand with the panel of judges. The panel would be composed of three judges and the fourth member would be the evidence leader. There had been a discussion about the composition. There were indeed different views, and it was agreed that the Committee would consist of one member from each party. The drafted rules had been together on the basis of previous discussion. The drafting of the rules had started with defining certain terms.
Mr Mbebe took the sub-committee through the drafted rules. After taking the sub-committee through the rules, he noted that the outcomes of the meeting – whether amending, adding or deleting - would be reflected in the drafted rules in the morning of the following day.
The Chairperson felt that the drafted rules captured all the issues. However, he said that it was not an easy task to draft rules because there would always be new inputs and opinions from Members. The drafted rules should be considered procedurally and methodically, and he stressed that the drafted rules would be considered sub-heading by sub-heading. Members should raise issues they had.
Mr J Steenhuisen (DA) said that Section 89 referred not only to misconduct but also to serious violation of the Constitution or law. This spoke about unlawfulness.
Ms J Kilian (ANC) said that this should be captured under misconduct. Members should look at what constituted inability or serious misconduct. Under serious misconduct, the unlawfulness should be included.
The Chairperson felt that there were issues relating to language, which ought to be improved by the drafters.
Mr Steenhuisen asked whether the terms such as ‘negligence’ and ‘recklessness’ could be included under the definition section. Could negligence be viewed as a serious violation? He gave an example where the President might not be able to bring unity in the country.
Ms Zuraya Adhikarie, Parliamentary Legal Advisor, said that all these terms could not be captured under the definition section. Negligence should be understood in the context of not acting in good faith.
The Chairperson said that some definitions should be drawn from the court judgment, and they ought to be sure that all definitions were captured before they moved on.
Initiation of Section 89 procedure
Ms Kilian said that it ought to be a substantive motion, because it ought to be clearly stated and substantively charged. A president was always treated as a Member of the House. She wanted to check with the legal team whether a reference should be made to a substantive motion.
Ms Adhikarie agreed. She said that it should be a substantiated motion.
The Chairperson asked Members to see whether the language was fine.
Compliance with criteria
Mr Steenhuizen commented that the section had been drafted in order to ensure that the motion complied with the existing rules of the National Assembly.
The Chairperson said that the language should be reconsidered in order to avoid gaps which might cause a lot of harm.
Mr M Hlengwa (IFP) remarked that he had a problem with “a member”, saying that there were about 400 members. What if the Speaker received more than 20 different motions? There was a need to find a way of coordinating these motions. All motions might be substantiated. How would the Speaker deal with this traffic of motions? Which one would be given priority over the others?
Mr Steenhuizen felt that there would be a sequence of receiving motions, as all of them could not be submitted at the same time. They would be considered in accordance with the time of submission.
Ms Kilian felt that it was necessary to create an additional mechanism to deal with the traffic of motions. The first compliant motion would proceed. There was no provision dealing with the case of submitting more than one motion to the Speaker.
The Chairperson said that, for some time, the sub-committee had been dealing with the motion of confidence and no confidence. It was a question of submitting a motion and considering whether the motion qualified. There was no need for consideration of all motions if there was one that met all criteria. A motion could be submitted by a political party and could not be restricted to a Member.
Mr Hlengwa said that there should be a timeframe for the submission of motions and that all motions should be considered on their own merits. The rule referred to a Member, and not to a political party.
The Chairperson said that the fact that the rule referred to a Member should not be a problem.
Referral of motion
Mr Mbebe asked whether the President should be informed prior to vetting the motion. The sub-committee should consider at what point the President should be informed. There was a time that the Committee/Panel should state that the motion was baseless, and there was nothing to consider.
Ms N Mazzone (DA) said that in the previous discussion, a timeline had been outlined. She was not sitting well with the phrase “due urgency,” in case there might be a Speaker who was not in favour of a motion, and the motion might not be treated with the urgency it deserved. The “due urgency” gave the Speaker much discretion, and she found this to be unfair.
Ms Kilian said that she heard what Ms Mazzone had to say. She referred to Rule 129 in relation of section 102 of the Constitution. The rule said that the Speaker ought to call the motion of no confidence with due priority. She suggested that similar wording should be considered. According to the court judgment, the motion ought to be given due priority.
Mr Hlengwa said that the President should be informed once a resolution had been reached and the impeachment process was about to be decided. The President could not be informed if the motion was baseless and unfounded.
The Chairperson said that both the President and Deputy President had Parliamentary counsellors who advised them on Parliamentary activities on a daily basis.
Ms Steenhuizen said that the sub-committee should avoid the situation where the President could be advised of the motion at the last minute. The President might claim that Parliament was discussing him/her without informing him/her. The President ought to be informed on every stage to prevent the argument that he/she was prejudiced at the end of the day.
Ms Kilian agreed. Even on the referral of the motion, President ought to be informed, as advanced notice would be served so that there should be no prejudice. If the motion was referred to the House, the matter would be broadcast in the media.
The Chairperson said that once a motion was there, or suggested, the President ought to be informed.
Consideration of preliminary report
The Chairperson said that there had been a big discussion on this issue at the previous meeting.
Ms Kilian had felt that there was a step missing. There was a consideration of the final report, but this was not the final proceeding, as the final proceeding lay with the National Assembly. The formal impeachment process would proceed by resolution of the National Assembly. That was her understanding of the impeachment process. The resolution ought to be taken if there was a sound basis.
Mr Mbebe said that this sentiment was captured under the functions of the Committee. This issue could be elaborated on between the preliminary and final report, however. A point was taken.
Mr Steenhuisen asked whether written presentations from the public should not be considered. This would allow the Committee to have all information, inputs and concerns prior to establishing a final report.
Ms Kilian referred to page 18 of the judgment. She said that for the impeachment to proceed, the National Assembly ought to have determined that one of the listed grounds existed. If there were no grounds, the impeachment would not be one contemplated under section 89(1) of the Constitution. The panel and the Committee could not have a final decision. Only the National Assembly would have the final say.
Mr M Booi (ANC) said that there ought to be accountability. The second step was very important.
Mr Steenhuizen said that the spirit of the judgment was to avoid the question of a majority of one party, and that was why the judgment talked about the pre-determined set of criteria. If the set of pre-determined criteria were met, then the motion had to move to step two. The Committee should consider whether the criteria had been met, and this had been suggested in order to avoid the majority blocking the motion.
The Chairperson said that Members should apply their minds on the development of rules, knowing that there was no other structure that was above the National Assembly. The majority for deciding whether the preliminary report could proceed on to the second stage was 50+1. The preliminary report could not go to the second stage if the vote in favour of the motion was fewer than 50 votes, even if there was prima facie evidence.
Mr Hlengwa said that there was no way the condition that the National Assembly had to have the final say could be changed.
The Chairperson said that the fears over the majority should be ruled out, because the governance of the country was based on the majority winning. That was why some people were Members. That was the reason why some municipalities were governed by certain political parties. The view holding that there should be no majoritarianism was against the very nature of democracy. Democracy was based on consensus, but majoritarianism was the core element of it. No one could deny that democratic governance was based on the majority view. Accordingly, majoritarianism was not a crime. The decisions were taken on the basis of majority. The rules that were being created were just to make sure that the process was fair, but decisions in the process would be based on what the majority in the Committee or National Assembly decided.
Mr Mbebe said that they faced difficulty in differentiating between the spirit and the letter of the judgment. What the judgment suggested was the same route that the motion should follow. The motion was first submitted to the speaker. The spirit was that majoritarianism should be avoided.
Mr Steenhuizen said that the Committee should take a decision on the basis of pre-determined criteria, and the National Assembly could turn down the decision of the Committee. The question was what would happen if the court found that the President had seriously violated the Constitution. The problem was that it was difficult to have a pre-determined list of misconducts or recklessness by the President.
The Chairperson said that the problem was that one could not tell or convince the National Assembly how to vote.
Ms Adhikarie said that this was where the minority judgment was helpful.
Ms Kilian said that there would be a problem if the process was not well articulated. The Committee would make an objective assessment of the motion.
Consideration of final report
Mr Steenhuisen asked whether there would be a debate on the final report, or whether the final report would be tabled in the National Assembly to be voted on. The National Assembly would want to express itself, and political parties might want to express themselves. Political parties might want to convince each other why two-thirds majorities should be reached. He asked whether the presentations should be captured in the final report.
Mr Hlengwa said that public participation was necessary, in that the voice of civil societies should be heard. Public participation was part and parcel of the democratic process. There was consensus that the rules were being adopted in terms of the Parliamentary process.
The Chairperson said that a member of public who had evidence should not be denied the opportunity to present them to the Committee.
Ms Kilian said that concerned members of the public or civil society should be allowed to present. This would ensure that the process was fair.
Ms Kilian said that the ANC reserved its position on option one. There should be a distinction between the structure that would conduct the phase one (i.e. preliminary) and the structure that would conduct phase two (final). There should be a distinction between incapacity to lead as Head of State, and a serious violation of the constitution. There should be an objective, independent panel. At one stage, the ANC had supported the panel. However, there was a need to know what constituted a serious violation of the constitution, or serious misconduct. There should be a mechanism whereby each political party would be invited to nominate its Member. The second phase was the establishment of the Committee, whose powers and duties could not be delegated to another organ. The Committee would need legal advisors.
The Chairperson said that Ms Kilian was implying that there should be a panel with competent Members appointed by political parties, who would establish a preliminary report to be submitted to the Speaker. The Speaker would then take a decision. The people to be nominated were not Members of Parliament. There might be judges.
Ms Mazzane said that Ms Kilian’s view was a massive deviation from where they had been at the previous meeting. The sub-committee was going back to square one. What they had agreed on the previous week was that Parliament was the only body that could hold the executive to account. It voted in the President and it could remove the President. Some had wanted the panel to decide on the impeachment, whereas others were in favour of Parliament. The judgement, if one read it, clearly stated that Parliament was obliged to create and execute its own rules. This meant Members of Parliament.
There was also a need to safeguard the judgment against majoritarianism. A note should be taken that Members were drafting rules, not for the existing Parliament, but for the Parliaments to come. The ANC might form the majority today, but this could be different in 10 years’ time. Majoritarianism remained a major concern. She was afraid that the Constitutional Court might find the majoritarianism a constitutional loophole, and thus unconstitutional. The matter should approached in a manner that it would be seen that there was no one who could try to block impeachment. It would be hopeful if each party provided a Member that would be part of the panel. She argued that the sub-committee should be guided by the court judgment.
The Chairperson said that Ms Mazzone was implying that members of public should be nominated to be on the panel, and that some of them might be judges, or some of these judges might be appointed by the Chief Justice. The fact remained that these members were not Members of Parliament. The panel could work on the preliminary report. The majority could decide otherwise when the preliminary report was tabled in Parliament, however. There was nowhere the court had stated that the majority in the decision-making was a problem.
Mr Steenhuisen was concerned with Parliament outsourcing its responsibility. He alluded to section 46 of the Constitution, which spoke about the composition and election of Members of the National Assembly. The Committee had the right to summon and hold people to account. The Committee should not outsource its responsibilities, but should rather call in experts to assist, like evidence leader.
Mr Hlengwa said that it was the duty of the Parliament to recall the President. He was uncomfortable with the fact that another body could suggest that the President ought to be recalled. He was in favour of the Parliamentary process to be followed from the outset, and to allow for external assistance. Members should take responsibility to confront the men and women who had been voted into office. Serious violations were still subject to political considerations, first. The Parliamentary processes were always guided by a qualified and competent legal team. The duties could be delegated to members of independent panels, but the members of these panels would not have the privileges which Members of Parliament had.
The Chairperson said he was stating that there should be a team that would assist the Committee, and this team should be proportionally represented. There should be people with different expertise.
Ms Kilian said that the Committee should be constituted in accordance with the rules, and should submit its report to the Assembly, and the Assembly would decide. The duty of the panel would be limited to an objective assessment of all evidence and deciding whether there was prima facie evidence supporting a case to answer. That was where the task of the panel ended. There should be no political debate at the preliminary stage.
Mr Booi remarked that the rules should be workable for the future, and crafted with the long term in mind.
Mr Steenhuisen raised a concern about accountability. He asked how the panel could be held accountable if they were to act in bad faith. The question of accountability was crucial, and should be taken into consideration. There should be a discussion on accountability.
The Chairperson said that the sentiment of Members was that the committee should be composed of Members of Parliament, and it would have sub-committees. The committee and sub-committee would have the privilege of inviting whoever they would like to invite, and to make determinations. There was a need for balancing the duties of the main committee and the sub-committee. The sub-committee should submit its preliminary report to the main committee, and the main committee should be the one to invite people to make presentations.
Mr Mbebe said that Members’ views and inputs were consistent with the previous discussion. The only difference was on the structure of the committee. The Speaker would not deal with the sub-committee directly, only with the main committee.
Mr Steenhuisen said that the Constitutional Court had ruled that there had been a serious violation of the Constitution. In cases such as this, there was no need for establishing a panel to consider or determine whether the conduct of the President had violated the Constitution.
The Chairperson said that Members were in support of the establishment of a committee consisting of Members of Parliament. The committee might appoint a sub-committee.
Mr Mbebe said that it should be placed on record that the EFF supported the establishment of the panel.
Ms Kilian stressed that the committee was favoured over the panel, because the panel could not go to National Assembly.
The meeting was adjourned.
- Impeachment Rule: EFF Proposal
- Draft Rules Removal of the President
- Notes on Procedures to Remove a President in term of Section 89
- Notice of Subcom on Review of Na Rules
- Judicial Service Commission Act 9 of 1994
- Legal Opinion on Establishment of Committee to Deal with Issues Arising out of Section 89 of Constitution
- Re: Section 89 Rules: Recommendations by the AIC
- Proposal of a Rule in terms of Section 89(1) of the Constitution EFF Submission
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