Section 89: Removal of President – finalisation of revised rules

Rules of the National Assembly

28 August 2018
Chairperson: Mr L Tsenoli (ANC; Deputy Speaker)
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Meeting Summary

The National Assembly Rules committee met to consider the following; the draft agenda for the meeting, two outstanding minutes, the legal opinion on the proposals for the removal of the president from office in terms of section 89 of the Constitution as well as the proposal on draft rules to remove a president from office in terms of section 89 of the Constitution.

Concerning the proposal on draft rules, the Chairperson of the NA Rules Subcommittee presented on the report, focusing, mostly on the Section of the Report relating to the initiation of a section 89 of the Constitution Inquiry, specifically compliance with various Criteria and the Referral of Motion. He also laid emphasis on the section dealing with the composition and appointment of the independent panel. Lastly, he went over the three options for the composition and appointment of the impeachment committee in a Section 89 Inquiry. Most importantly, he stated that option 3 had been agreed upon by the members of the subcommittee as the most appropriate option for the composition and appointment of the impeachment committee.

Mr Steenhuisen expressed support for option 3. He stated that the reason for an impeachment committee is so as to create a fair and unbiased adjudicative body that will not engage in witch-hunts. The most important element is independence. He added that the committee should incorporate the requirement of “fit and proper persons” as is the case with the Chapter 9 institutions under the Constitution. Also, the definition of “impartiality” under Chapter 9 should be incorporated into the report in order to ensure that the members of the impeachment committee act fairly and without fear or favour in performing their duties.

The Chairperson reiterated that option 3 had been accepted and the report in its entirety was also accepted with “the additions of the Constitutional requirement of fairness as well as a choice of option 3.

Meeting report

The Chairperson opened the meeting and welcomed everyone.

He quickly ran over the apologies that had been received by the Committee. He gave apologies on behalf of the Speaker of the National Assembly, Ms Baleka Mbete (ANC) and Mr Singh, N (IFP).

Mr J Steenhuisen (DA) gave an apology on behalf of Mr M Waters, M (Deputy Chief Whip-DA), who could not attend the meeting. He also informed the Committee that Ms N Mazzone (DA) would join the meeting a bit late.

Ms D Dlakude (ANC) submitted an apology on behalf of the Chief Whip, Mr J Mthembu (ANC).

Agenda

The Chairperson then proceeded to consider the draft agenda for the meeting. He asked whether there was any input from the members.

There was no input in this regard.

Outstanding Minutes

The Chairperson quickly moved on to the consideration of the draft minutes for the meeting of 18 October 2017.

Again, there was no input from the members.

He quickly moved on to consider the accuracy of the minutes.

There was no issue arising from it.

He proceeded to considering the minutes from the meeting on 1 February 2018.

There was no issue arising from it.

Both minutes were approved with no changes.

Ministerial Absence

Mr Steenhuisen addressed the issue of Ministers being absent from the House when key decisions are made.

The Chairperson suggested that this matter be discussed in the next meeting and ought to be handled by the responsible Subcommittee.

Legal Opinion

The Chairperson moved on to the next item on the agenda, consideration of the legal opinion on the proposals for the removal of the President from office in terms of section 89 of the Constitution of 1996.

There were no issues raised by the Members in this regard.

Proposal on draft rules to remove a president from office in terms of section 89 of the Constitution

Lastly, he proceeded to assess the proposals for the draft rules and asked the Members whether they had any comments on it. The Members were each provided with a copy of these proposals.

Mr R Mdakane (ANC), Chairperson of the NA Rules Subcommittee, said that the Subcommittee had met on Friday, 24 August 2018 to discuss proposals relating to procedures to give effect to Section 89 of the Constitution (Removal of a President). All the views were considered and various proposals were agreed upon. With regards to the issue of compliance with the necessary criteria, “once a member has given notice of a motion to initiate proceedings in a Section 89 enquiry the Speaker may consult the member to ensure the motion is compliant with the criteria set out in Rule (1).”

On the referral of a motion, “the Speaker must inform the Assembly and the President of such referral without delay and must refer any supporting documentation provided by the member, to the independent Panel established for the purposes of considering preliminary Section 89 matters.”

He then explained that “the Panel must consist of three competent, experienced and respected South Africans, which may include a judge, and who collectively possess the necessary legal competence and experience.” Also, “the Speaker must appoint the Panel, after giving political parties represented in the National Assembly reasonable opportunity to put forward nominees for consideration for the Panel, and after the Speaker has given due consideration to all persons so nominated.”

He emphasised the importance of the consideration and referral of the panel report, and asked the Members to take note of this issue.

“(1) Once the Panel has reported, the Speaker must schedule the report for consideration by the Assembly, with due urgency, given the programme of the Assembly.

(2) The President must be informed of the scheduling and any decision on the report.

(3) In the event the Assembly resolves that a section 89(1) enquiry be proceeded with, the matter must be referred to the Impeachment Committee established by this Rule for that purpose.”

On the issue of the appointment of the impeachment committee, he discussed the three options outlined on page 4 of the report. Option 1 reflects the current position in South Africa, whilst option 3 emphasises the principle of proportionality in terms of Rule 154 i.e. the number of seats that a party has in the Assembly, and ensures that all parties are represented in the National Assembly. The Committee may not make the final decision. Instead, they make recommendations and only the Assembly makes the final decision.

The subcommittee adopted option 3 and stated that both options 1 and 2 contained several defects that made them unsuitable for the purpose intended.

Furthermore, he addressed the issue of consideration of the report.

“(1) once the Committee has concluded the inquiry, it must report to the Assembly forthwith.

(2) The report of the Committee must contain findings and recommendations including the reasons for such.

(3) The report must be scheduled for consideration and debate by the Assembly, with due urgency, given the programme of the Assembly.

(4) If the report recommends that the President be removed from office, the question must be put to the Assembly directly for a vote in terms of the Rules and if the question is supported by at least two thirds of the members of the Assembly of the members of the Assembly, the President is thereby removed from office with immediate effect.”

He emphasised that only those members available in a particular meeting could vote. Also, the recommendations by the various committees are not binding. The Assembly is the institution that makes the final decision.

The Chairperson invited the Members to give their views on this report.

Mr Steenhuisen began by expressing support for option 3. He however raised issue with the matter of the composition and appointment of the impeachment committee. The reason for such a committee is so as to create a fair and unbiased adjudicative body that will not engage in witch-hunts. He emphasised that the most important element is independence of such an institution.

Additionally, he insisted that the committee should incorporate the requirement of “fit and proper persons” as is the case with Chapter 9 institutions under the Constitution, 1996. Also, the definition of “impartiality” under Chapter 9 should be incorporated into Section 2 of this report in order to ensure that the members of the impeachment committee act fairly and without fear or favour in performing their duties.

The Chairperson asked whether there were any complaints or objections to the proposals from the members, as presented by Mr Mdakane.

There were none.

The Chairperson then reiterated that option 3 had been accepted and the report in its entirety was also accepted with “the additions of the Constitutional requirement of fairness as well as a choice of option 3.”

The meeting was adjourned.

 

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