Procedures related to Section 89 of Constitution (Impeachment)

Meeting report

Opening remarks

The Chairperson welcomed Members to the meeting and informed them that the Subcommittee had to have something ready for the NA Rules Committee meeting on 28 August 2018. He had called the meeting to discuss the matter of Section 89 of the Constitution, which was the rule dealing with impeachment. He hoped that the legal team would be able to assist Members. That would be the only item on the agenda. The Senior Parliamentary Legal Advisor, Frank Jenkins, would make a presentation on Section 89. The ANC would then put forward its proposal and he hoped that other parties would also have proposals to put forward. He hoped that Members would agree on what was to be presented to the Committee; otherwise it could end up as a long discussion in the Rules Committee.

He called on Adv Jenkins to brief the Subcommittee.

Presentation on the legal position in respect of Section 89
Adv Frank Jenkins stated that he would keep his presentation closely focused on the Rules. The opinion by Senior Counsel GJ Marcus and Karrisha Pillay went into the background and the court case, which was very useful, but the Subcommittee had dealt with that in previous meetings.

The opinion addressed the questions of whether draft rules accord with and give effect to the judgment and the broader constitutional principles. In summary, they had found that the  rules did comply generally. However, there  were three or four issues that they had highlighted. The first point highlighted were the definitions. In the Rules, Parliament had defined certain concepts such as misconduct, serious, violation. The opinion suggested that there were two things that should be done. Firstly, specifically with reference to those three concepts identified, instead of saying that ‘misconduct means ….’, the Rules should say “misconduct includes …”. That would move the definition from a closed list to an open list and allow for unforeseen eventualities. Secondly, Senior Counsel suggested that instead of defining misconduct, serious, violation in isolation, it should be defined as set up in the Constitution and serious and violation put together and serious and misconduct together.

Adv Jenkins said his brief was not to evaluate the opinion but, from a legal perspective, it made sense to do it like that as one did not know what could happen, and what Section 89 would be used for, in the future. Section 89 addressed a serious situation and very serious consequences would flow from misconduct or a serious violation of the law.

The second aspect of the Rules that Senior Counsel had given comment on was about giving Section 89 preference in the House. The opinion noted that Rule 4(3) provided that the scheduling of the report “must be given due priority given the programme of the Assembly”.  However, Draft Rule 5(3), in its present form, required that due priority be given, given the programme of the Assembly. Senior Counsel was of the opinion that the rule was not consistent with the judgement of the Court and that instead of taking the programme of the Assembly into account, it should take precedence over the programme. Adv Jenkins recommended that those provisions be removed.

The third area that carried a little more weight in respect of matters that had to be addressed by the Committee was the initiation procedure. Firstly, the process might be initiated by a Member of the National Assembly. There was nothing wrong for a Member or a motion to initiate the proceedings. However, Draft Rule sub-rule 1 1(a) stated that the motion should be limited to a fully substantiated complaint on the grounds specified in Section 89. The opinion was that the rule should stop at the phrase “Section 89”. The last section which required prima facie evidence could be seen as a way to stall the motion until it fell away. The opinion provided examples of where that had happened. There should be no criteria preventing the motion from getting to the House. It might be a minority party that brought the motion but the Constitution envisaged that the motion would eventually serve before the House. There should be no obstacles getting to the House, so Senior Counsel recommended that the part about prima facie evidence be removed.

Those were the problems in the draft rules that the opinion had raised. Other than that, Senior Counsel believed that the Rules complied. That was also his opinion and the opinion of his colleagues in the Parliamentary Legal Services.

The issue of representation in the panel was another area that would have to be addressed. The opinion found that having a Committee to consider the enquiry made up of proportional representation would not be consistent with the court judgement.  It suggested either a panel of 50/50, i.e. 50% ruling party, 50% opposition party could be discussed.  The suggestion was that the Chairperson be a retired judge, which he was not 100% sure about. The option of having proportional representation was a problem. It had to be either a panel or 50/50. However, that raised other questions in his mind. A Committee composed of 50% ruling party and 50% opposition party would be problematic because there could be contestation. Furthermore, one of the opposition parties could be working with the ruling party.  He was not speaking of the present but there might be coalition parties in the future and the opposition parties would say that a particular party had a Member of Cabinet, or it might have voted with the ruling party. There would be a question as to whether such a party could be counted as opposition. So, that in itself did not solve all the problems. On paper it seemed that a motion by an opposition party might be successful but, in reality, it was more complicated and issues could arise. The idea was that a minority party’s motion would not be frustrated.

Adv Jenkins said the proposal of a retired judge chairing a Committee or a panel of retired judges raised concerns for him. The whole idea of judges assisting Parliament had not been tested in South Africa. The Code of Judicial Conduct, in terms of the Judicial Service Commission Act, dealt with the conduct of judges and there were some of the articles that could be a challenge. Some provisions seemed to preclude a judge. Article 17 of the Code of Judicial Conduct said that ‘judges may, only with the permission of the Minister, acting after consultation with the Chief Justice, hold or perform any office or profit or receive in respect of any service any fees, emoluments or other remuneration or allowances apart from his or her salary...’  The first thing then was that Parliament could not pay a judge. Article 17 continued: ‘All activities of a judge who is no longer on active service must be compatible with his or her status as a judge.’ Furthermore, ‘Any appointment that is likely to affect or be seen to affect the independence of the judiciary or the separation of powers or the status of the judicial…’ Adv Jenkins believed that the matter of remuneration could be addressed. 

The legal opinion did not seem to be concerned about the issue of the judges, but Parliamentary Legal Services was not happy about the idea of a retired judge. Adv Jenkins had written to the Chief Justice asking for his opinion but he had not received a response to date. His point was that if a judge acted as a Chairperson of a Committee and that judge had a casting vote in the case of a 50/50 split, that would put the judge in an untenable position. It was one thing to rule on law but another to be a Chairperson with a casting vote. If Parliament went the route of a retired judge, he would suggest that a panel would be the best option.

In summary, the rules were generally compliant with the court case, but there was the concern of the retired judge with the panel being the best option.

Discussion
The Chairperson thanked Adv Jenkins and asked if the Members wanted to raise any matter on the legal opinion.

Mr N Singh (IFP) said he had not read the opinion but was confused about the judge having to vote in a committee. The House had to vote. That was where the matter would be considered and voting would take place. There was also an assumption that a party would have a 50% majority. What if the ruling party had only 45% of the seats? The party then could not have 50% of the Members in the Committee. That was a grey area that had to be addressed. Regarding Section 89 saying that the matter was a priority, that was a matter for the Programming Committee and he knew that there would not be a problem there. He was trying to reconcile the opinion with what the Subcommittee had to do, or to propose. Arising out of the opinion, what proposals should the Subcommittee be making to the full Committee?

Adv Jenkins appreciated the support from Mr Singh but one did not know what the future held and that was why option two would be his preference. He could recommend option one, but with reservations. If a party had not obtained fifty percent of the vote, then why should that party have fifty percent of the seats? But, of course, rules could be changed. It proved the point that the Subcommittee had to look at the rules from the perspective of the future. The Committee would operate as a normal Committee.

He added that the legal opinion had also made a point about the powers of the Committee. The Committee would have all the powers applicable to parliamentary committees. In addition, the Panel should appoint a legal practitioner as evidence leader, and afford parties in the National Assembly an opportunity to lead evidence. In terms of Option 2, the Panel had the powers given to it by the Assembly, including the power to subpoena witnesses and/or require any documents. However, in the rules, those powers should be explicitly stated.

Parliament had a Court decision that said that the ad hoc position would not work. Parliament had to draft specific rules for a specific focus area.  All of the special powers and the procedures for that specialized system should be explicitly stated. In terms of motions, only certain aspects of Rule 154 would apply when it came to a motion on Section 89. Parliament could not, therefore, state that it should accord with constitutional law or the Parliamentary Rules. Specific rules that did not apply had to be left out. The motion had to accord with the Constitution but did not have to comply with all rules on motions and other sub-provisions.

The Secretary informed the Subcommittee that Chapter 7 on page 83 dealt with Motions, that was Rule 119 onwards.

The Chairperson turned to the second item on the agenda and invited the ANC to present its proposals.

Draft rule to remove a President from Office in terms of Section 89 of the Constitution: ANC proposal Ms J Killian (ANC) reminded Members that the matter had been very prevalent recently. All parties had been given the opportunity to reconsider and to come up with specific proposals taking into account the legal opinions and more than one had been received. What had become evident was that there a concern that there should be no prohibition to investigate a matter based on the sensitivity of whoever governed the country when there was a transgression of the Constitution.

In the previous deliberations in the Subcommittee, the ANC had been comfortable with a Committee to do the preliminary investigation, although the EFF position had been very clear that they wanted a panel of judges. Members had heard what the dilemma was with such a panel. The ANC had prepared a proposal that took certain steps because Section 89 needed specific provisions. However, that did not mean that Parliament could not use some of the existing rules.

Firstly, the ANC believed that it could improve on the definitions and so the party proposed changes to the definitions to clearly illustrate the important criteria for a panel to assess if serious misconduct was to be scrutinized or a serious violation. Members had before them the changes to the definitions that the ANC was proposing.

Secondly, the ANC believed that, for the start of the process, it was important to refer to Rule 126 that stated that such a process would be initiated by way of a motion for the House and the motion had to be clearly formulated and substantiated on the grounds specified in Section 89. The grounds were listed in the ANC proposal. The person initiating the motion had to show a clear difference between Section 89 motions and Rule 102 motions which were more of a political nature and need to majority to pass those motions. The charge under discussion was a very serious charge against the President and had to be substantiated. All evidence had to be attached to the motion and the charge had to relate to an act or conduct performed by the President in his person and had to be consistent with the Constitution, the law and rules.

The only function of the Speaker, on receipt of the motion, was to check whether it complied with the criteria set out in the rules. The Speaker had to immediately, and Ms Kilian stressed immediately, refer the motions and supporting documents. Ms Kilian agreed that it would be problematic to have a Committee of Parliament doing the initial scrutiny. It had to be a panel of eminent South Africans and could include a judge. The important thing was that the Speaker had to invite the parties to submit names and, if a judge was to be appointed, the Speaker had to consult with the Chief Justice.  One of the three panellists had to be a legal person and one would be appointed as the Chairperson.

The panel had to make a recommendation to the Speaker within 30 days. The panel had to afford the President an opportunity to provide written evidence and then had to decide if the motion was based on a substantial matter. The panel would provide the Speaker with written findings, including the reasons for its findings, and any minority view. The Speaker had to submit the findings to the National Assembly which was, constitutionally, the body to make the decision. The National Assembly had to decide if there were sufficient grounds for impeachment. If it did, the matter had to be referred to the Impeachment Committee

Ms Kilian presented two options for the Impeachment Committee. Option 1 was a very big Committee of 31 Members. Option 2, the preferred option, was a smaller committee appointed by the Speaker and proportionally representing all parties. The Constitutional Court determined that it had to be a fully inclusive process. The Committee would proceed with the rest of the investigation. The legal opinion by Senior Counsel Marcus was that Committees had no say. A Committee could only recommend. Section 89 of the Constitution stated that only the National Assembly can decide to proceed to remove the president. A small investigative impeachment Committee would work best. The Committee would have all the powers of a Portfolio Committee. When the Committee reported, all views, including minority views, expressed in the Committee had to be included in its report.

If the Committee recommended impeachment, the matter had to be put to a direct vote immediately. Two-thirds of the incumbent Members of Parliament were required for a majority as there might be some vacancies. The Constitution allowed for between 350 and 400 members. The legal opinion had said that it could not be two-thirds of 400 Members if there were a number of vacancies.

The impeachment Committee could not delay in submitting report. Ultimately it was the decision of the National Assembly whether or not to impeach the President.  Ms Kilian reminded the Subcommittee  that impeachment affected the President’s benefits. According to Section 89, only if the President was removed because of inability, did he keep the benefits.

The proposal was based on recommendations of different legal opinions, including that of Senior Counsel Marcus, as well as taking into account the court’s concerns that the majority party might attempt to block the investigation.

There were no further additions from the ANC Members and the Chairperson invited Members to discuss the presentation.

Discussion
Mr Singh found it difficult to agree or disagree as he needed time to digest the document but he agreed with the need for prima facie evidence before the National Assembly proceeded with the process. The challenge was that the Opposition knew that the previous President had flaunted the Constitution but, despite findings, rulings, etc., the ruling party had covered up the fraud, misconduct and other misdemeanour. The opposition was fearful of the majority cover-up. He admitted that the situation had changed since the ANC Conference and that the President had been removed. Other countries such as the United States and Brazil had impeached their presidents. What examples were being drawn from those countries? Had the Subcommittee considered practices in other countries? He was sure that it was not as long and laborious process as in South Africa. If a President had to be impeached, he would have hoped that the whole country would see the need. Furthermore, proportion was not fair and Parliament needed checks and balances but how would they be determined?

The Chairperson noted that in general it was fine. When the Members went to the Rules Committee on 28 August 2018, they should have agreed on some of the issues because they needed to go to the Committee with some decisions. There was, generally, no objection to the inquiry prior to presenting the matter to the House.

Going through the ANC document, he observed that certain points were non-controversial as they stemmed from the Constitution. Prima facie evidence of serious misconduct would be difficult for any party to reject.
If a panel of independent, competent South Africans found evidence of wrong-doing, not even the ruling party could reject that. The Subcommittee had generally agreed with an independent panel. The DA had had another view on the matter but there were no DA Members at the meeting. The number of panel members was not important. It could be three or five members. It was better than involving Members of Parliament. It seemed to the Chairperson there was no bigger issue around the panel.

The functions and powers of the team were indicated in the document. There was an issue around impeachment. It could be called ‘impeachment’ or ‘removal of the president’. There were two options in the document – one for a Committee and the other for a panel.

Mr Singh indicated that he did not have an objection to Option Two. The Committee in Option One was too big and cumbersome and raised the question of the number of ruling party members. It would be necessary to assess the situation prevailing at the time.

The Committee Secretary reminded Members that the Rules of Parliament allowed any Member to attend any meeting and to speak at any meeting. The Member did not have to be a Member of that specific Committee.

Mr M Booi (ANC) stated that the ANC had no objection. The situation was such that the ANC would not necessarily be the majority party as anything could happen in an election so the proposal would apply even if ANC was not the majority party. The ANC had not been subjective when determining the concept. Parties changed. The rule had to be able to come in at the right time and place. He had always said that one must not be subjective when making rules. In the future there might be coalition governments but the Rule would hold things together

Mr Singh asked Adv Jenkins if he had correctly heard that the opinion and the Constitutional Court were not happy about proportional representation.

Adv Jenkins said that the Court was not happy about the proportional Committee, but that was in context of the ad hoc Committee situation. The legal opinion said that proportionality would either be subject to a constitutional challenge or that there was a risk that it would be subject to a constitutional challenge. One could discuss it further but, in the end, it was going to go before the House. The Court had said that it did not like the ad hoc proportional system because it could prevent the motion from serving before the House. If the Rules could ensure that the motion served before the House, Parliament could get around the concerns of proportionality. The House was the forum in public view where the matter had to be tabled. However, he noted from the legal opinion that there was a risk that it would be subject to a constitutional challenge.

Mr Singh said would be more comfortable if the Rules could ensure that it would serve before the House which was the final arbiter. He referred to Option two of the proposal which stated that there had to be proportional representivity in the Committee. Every party should have a representative on the Committee. The Speaker could decide at the time whether it should be proportional or not. It seemed that Option one was too big and unwieldy. Option two was better but the point about proportionality should be adjusted.

The Chairperson noted that the rule might never be used in their lifetime. Equal representation on the Constitutional Review Committee was a precedent. The DA had a problem with the panel, but option two was the preferred option with the parties that were at the meeting. The point was that the report had to come to the National Assembly.

The Committee Secretary suggested that Members needed to focus on the panel and the composition of the Committee but it was important to remember that Committees did not take decisions. They only made recommendations.

The Chairperson thought that the Subcommittee would have something to present to the Rules Committee. He was sure that the DA could be persuaded. He did not think that it was worth fighting over the composition of the Committee as the Committee could not kill the report. It had to go to the National Assembly.  He asked for Adv Jenkins’ view.

Adv Jenkins noted that there had been strong, inflexible views on that point in the Committee. He believed that Mr Singh had made a valid suggestion about taking proportional representation out of the committee.  If the Committee could ensure that procedures within the Committee were such that all the views expressed in the committee were presented to the House. When putting the situation before the House, the Committee would have to present all information and let the House take a decision.

The Chairperson noted that there should be three options. Options one and two could remain as they stood and Option three could remove the proportional representation. The panel issue was a good solution. One of the issues that would be put forward would be that there could be many parties in Parliament and the Committee could be huge, but parties would be consulted. He asked Adv Jenkins to speak about the functions of the Committee.

Adv Jenkins stated that the legal opinion had set out the procedures very clearly on page 42 of the legal opinion. The points made in the legal opinion had been covered. The House could add if there was a gap but, as far as he could see, the functions of the Committee had been covered.
He thought that Parliamentary Rules covered the functions.

The Chairperson stated that the Committee referred the report to the House.

Mr Singh asked about the method of voting. Would it be normal voting by pressing a button, or would it be secret voting?

The Committee Secretary responded that the court judgement had said that the Speaker had to apply her mind. The circumstances would determine the method of voting.

The Chairperson noted that the Subcommittee should apply its mind to that point. Had Brazil used a secret ballot? It was a serious motion and the panel could recommend whether it should to be secret or not. He did not believe that it would happen the lifetime of the Subcommittee Members. He asked Adv Jenkins to give input.

Adv Jenkins stated that the present rule was that the Speaker had the discretion to determine a secret ballot. That would apply even in a case of impeachment. The Subcommittee had to remember that, in order to remove a President, two-thirds of those entitled to cast a vote had to vote for removal. If the Subcommittee did not specify that it always had to be a secret vote, or even an open vote, the current situation would apply, which was that the Speaker had discretion.

Ms Kilian agreed that the Members should apply their minds on the issue. Mr Booi was correct and the country could be moving towards coalition governments. Her understanding was that during discussions when the Constitution was drafted, it was decided that depending on which matters were before the House, the Speaker would make a decision. Mr Singh had made a proposal on Option two. She thought that the word ‘proportional’ had been an oversight in the ANC document because the party had not wanted to determine the composition of the Committee. Mr Singh had spoken about the majority trying to prevent the motion from reaching the House, but that would be extremely difficult in the current climate in South Africa.

Mr Singh interjected that experience was the best teacher.

Ms Kilian agreed that that was the reason for the intensified public scrutiny. The ANC was not concerned about the composition of the Committee because parties were, ultimately, proportionately represented in the National Assembly. She added that the country had gone through a very interesting learning curve in the past five to six years. The courts had assisted Parliament to establish clear thinking patterns. She informed the Committee that the impeachment process in Brazil had taken time. It had officially started on 2 December 2015 and the President had been impeached five or six months later. It was a process that would take time but there was no intent to make it a drawn-out process.
 
The Chairperson reminded Members that they were drafting a Rule for future members of Parliament. No one knew if all the parties would be back after the next elections or the one after that. He, therefore, thought that it was a good idea to leave it to the Speaker to decide on the composition of the Committee.

The Chairperson went through the ANC proposal again, checking the various clauses.

The Chairperson stated that he accepted that the Subcommittee would take the document proposed by the ANC to the Rules Committee, with the addition of Option three. He would put forward the proposal with all three options. He noted that the method of voting would need further consideration.

The report would be finalised and submitted to the Committee. He thought many parties would agree with the Subcommittee’s proposal.

The meeting was adjourned.