Discussion on report of Sub-committee on Review of Assembly Rules: Section 89 of Constitution

Meeting report

Sub-committee’s Report

Mr M Mdakane (ANC), Chairperson of the Sub-committee on Rules, presented the report on behalf of the sub-committee. The work had been regarded as being in progress, because the Committee would take a decision. The report he was presenting was dated 30 January 2018, and was presented as an introduction of the report. Certain issues were highlighted, as they were drawn from section 89 of the Constitution dealing with the removal of the President. The section highlighted some of the principles as they were elaborated on in the court judgment. He would make a presentation on the drafted rules that would be followed when a motion to remove the President in terms of section 89 was raised. The understanding was that the National Assembly (NA) would define the issues that the sub-committee was trying to define. The work on definitions was in progress. There was still room for developing them further. There were questions about how the terms such as ‘inability,’ ‘misconduct,’ ‘serious’  and ‘violation’ could be defined. However, there would be no definite definition, in that he was calling on Members to see how definitions could be improved.  In his understanding, the work that was given to the sub-committee was to create rules that would regulate s89, including establishment of mechanisms to implement these rules.

After taking Members through the drafted rules, he said they were welcome to provide their inputs and to motivate more options. Drafted rules needed to be improved, as they were subject to discussion. The report was submitted to the Committee for consideration and possible adoption.  

Discussion

Dr M Ndlozi (EFF) said that the first option had a serious and fundamental flaw which was in violation of the Constitutional Court judgment. He stressed that the judgment to be considered had been the majority judgment. The judges had been divided. He was part of the sub-committee and was taking part in the deliberations, but he had not attended the last meeting. However, the sub-committee had been given legal advice on the fundamental difference between a majority and minority judgment. He would read out what the majority judgment said on proportionality representation.

He commented that someone had argued in court on behalf of Parliament in support of proportionality representation in the ad hoc committee, but the court had rejected this approach. The court had said that an ad hoc committee was not adequate. He read what the court said as follows: “In the context of section 102 of the Constitution, this Court in the Mazibuko case rejected the proposition that the tabling of motions of no confidence envisaged in that section, with only the support of a majority decision in a committee, was consistent with the Constitution.” He said that the court quoted Mazibuko, in that it said the following: “a majority decision of the programme committee on the scheduling of a motion of no confidence could frustrate the vindication of the right envisaged in section 102(2).  This would be so because, again, as in the case of consensus requirement, it would be within the discretion and generosity of the majority within the programme committee whether a motion of no confidence in the President would ever see the light of the day.”

The Court had indicated that “by parity of reasoning, the committee system is not suitable here too.  The ad hoc committees do not constitute a mechanism contemplated in section 89(1) for all the reasons set out in this judgment. In Mazibuko, this Court went further to declare: “To the extent that the rules regulating the business of the programme do not protect or advance or may frustrate the rights of the applicant and other Members of the Assembly in relation to the scheduling, debating and voting on a motion of no confidence as contemplated in section 102(2), they are inconsistent with section 102(2) and invalid to that extent.”

The court further said that “section 102(2), with which the Court was concerned in Mazibuko, does not require proof of any conditions before a motion of no confidence is tabled, debated and voted on.  Here, grounds for impeachment must be established before the motion to remove the President from office is debated and voted on.” In the result, the court concluded that “section 89(1) implicitly imposes an obligation on the Assembly to make rules specially tailored for an impeachment process contemplated in that section. And, [the court] holds that the Assembly has, in breach of section 89(1) of the Constitution, failed to make rules regulating the impeachment process envisaged in that section.”

He asked what was at stake there. It was proportional representation. What the proportional representation did was that it allowed the majority in the committee to stop the motion from going to the House. That was why the motion of no confidence should not be subjected to the generosity and discretion of the majority in the Committee. One could not establish the Committee applying rule 154, because this would be against the judgment. This was where the distinction between minority and majority judgment was crucial. The proportional representation was a problem, because the majority could decide that there were no grounds for the motion of no confidence. As a result, it would end there. The court had said this should not happen. In the sub-committee, the Members had agreed to this understanding. It was surprising that the approach applied in the ad hoc committee had been retained. The same approach would be applied by the committee to be established. This approach was against the judgment.

Dr Ndlozi said that the preliminary report had the same problem, because it was subjected to the vote in the National Assembly. This also went against the judgment, because no one should block a motion of no confidence at the preliminary stage on the basis of the majority representation. The majoritarianism was a problem, as it could block the motion. The preliminary stage was about inquiry and investigation into the existence of grounds of no confidence, and this ought to be objectively assessed. The fundamental question was why the National Assembly should vote on this. The National Assembly should vote only for the removal of the President, but should not vote on whether there were grounds of removing the President or not. The grounds were about facts, and their existence should be established through inquiry or investigation. A panel of retired judges could do an objective assessment of the existence of grounds. Application of the rule 154 for the establishment of the committee was criminal and illegal.

Mr N Singh (IFP, Chief Whip) said that Mr M Hlengwa (IFP) had presented the views of the party in the sub-committee and he had done an excellent job. He had the IFP’s opinion on the issues in the discussion in front of them. There would be different opinions from different political parties. Members should respect the judgment of the court, particularly the majority judgment. 

In principle, the IFP was in full support of the position of the sub-committee as it had been presented by Mr Mdakane. Its work showed that there had been progress in the attempt to regulate s89. Members ought to realise that there was one year to elections. It was not a time for discussing the issue of majoritarianism, because he believed that when the time came to establish the committee, the Speaker would apply his/her mind. It was not a time for discussing the composition of the committee -- this should be discussed when a need arose for its establishment.

In terms of the principle of moving forward, the IFP supported the view that the panel option was out. Members should not be delegating their duties. Members of Parliament appointed the President and could remove the President. Indeed, they should be a team of experts that the initial committee would consult. He did not see any committee – even if it was a committee composed by a majority of ANC members – going against the decision of experts. If the team of experts stated that, after a thorough and objective analysis of evidence, there was prima facie evidence to support the motion, and the committee decided otherwise, they would be risking losing an election.

Mr J Mthembu (ANC) said that the Constitutional Court was clear. It had noted that the National Assembly elected the President and had the power to remove the President from office. He agreed with the IFP Chief Whip that the power of the National Assembly could not be delegated to someone else. He said that they were in the process of establishing mechanisms to effect section 89 in light of the judgment handed down by the court. The court had elaborated on these mechanisms. Accordingly, there should be a committee consisting of Members of Parliament, and there should be a panel consisting of experts who would advise the committee. It would advise the committee on the basis of an objective assessment of the facts presented to it. The panel would then be in a position to advise the committee whether there was a prima facie case to answer. Once a prima facie case was established, the committee would start its inquiry or investigation. Parliament could establish the committee and sub-committee. As the IFP Chief Whip had stated, it was only a political party that wanted to lose the elections that would go against the proposal of the panel of experts.

In line with the position of the IFP Chief Whip, he also supported the work and report of the sub-committee. The option of establishing the committee was the right decision simply because non-members of the National Assembly could not present a report before it. Such a committee should have the power to investigate the removal of the President. Majoritarianism could not be seen as a problem. For example, the majority and minority had agreed that there should be an inquiry into the SABC in order to turn it around and to save it. The same applied to Eskom. There was an inquiry into Eskom, and the Portfolio Committee on Public Enterprises was doing a good job. The Committee was doing what was best for South Africa. A committee of the same nature could be established to conduct an inquiry into whether grounds existed to advance a motion of no confidence, or if any President had acted in violation of the Constitution.

Option one was not in violation of what was envisioned by the Constitutional Court -- that the removal of the President ought to be through Parliament. Envisioned in that removal was a mechanism involving Members of Parliament, and not people who were not accountable to Parliament.  If one read the report on the drafted rules, it was clear that this was not in violation of what Parliament was expected to do. Neither was it in violation of Parliament’s internal arrangements for the purpose of conducting its business.

Mr J Steenhuisen (DA) said that the issue raised by Dr Ndlozi had been discussed in a sub-committee meeting for at least three hours, and they had finally came up with a good solution. There had been a good engagement and good debate. Members were able to grapple with the challenges. The judgment was quite complex. The main problem that Members faced was outsourcing their work or their duties to outside people. The question was how these people would be held accountable, or be defined. Section 47 defined who a Member of Parliament was. Referring to sections 46 and 56 of the Constitution, he stressed that these sections made it clear about individuals who should be Members of Parliament, including their powers. They had the special power of summoning and subpoenaing any person to appear before Parliament and give evidence.

Of concern was the issue of accountability. The question was how non-members – forming a panel – would be held accountable if they were biased or bribed. Members accepted that the committee to be instituted should be composed by Members of Parliament, but should be assisted in their work by a panel of experts. Experts should include retired judges. However, the panel of experts should not be regard as panacea. They were not. Everyone had their inherent biases. Experts did not fall under sections 46 to 47 of the Constitution. Members were held accountable through their oaths to the Republic, obligations imposed by the Powers, Privileges, and Immunities of Parliament and the Provincial Legislatures Act of 2004, through the Code of Ethical Conduct and Disclosure of Members' Interests for Assembly and Permanent Council Members, and through the Rules of Parliament. In addition, the Constitution gave them power to conduct their work.

With regard to safeguards at the preliminary stage, the decision could be reviewed on the basis of irrationality and unreasonableness. That was the reason the sub-committee had faced a challenge in defining pre-determined criteria. If one looked at the definition, it had tried to craft the definitions in a manner that grounds would fall into the pre-determined criteria. A motion could be initiated if the President had acted in accordance with conducts provided under the definitions. Should any of these pre-determined criteria – set out under definitions – be breached, such breach would trigger and validate an inquiry into the conduct of the President.

External people – competent lawyers – would be needed to advise the committee. However, if there was a judgment handed down by a court of law, there was no need to have experts because the court had deliberated on the matter. Subjecting a judgment to legal experts would be to second guess. What powers the members of the external panel would have, and how they would be held accountable, remained problematic. Impeachment was a big issue. What if members of the panel were given money? One ought to be careful in appointing members of the panel. All these concerns had led the sub-committee to reach consensus on the option one.

The question of majority was also of concern, and more work had to be done to see how the issue of majoritarianism of one party could be prevented. The Constitutional Court was concerned with the possibility of using the majority to block the processes for the motion to get into the House. The review of the question of majoritarianism should be reviewed by Parliament.

Ms A Didiza (ANC) thanked the sub-committee for the work it had done. She appreciated the speed with which it had at least tried to come back and report on its work, from which the mechanism to regulate s89 had been established. The work was still in progress. The sub-committee had focussed much on making clearer the mechanisms that were needed to follow up with grounds under s89. She was in agreement with the two-stage approach towards the process of removing the President. There might be a need to re-look at the definitions to see whether these definitions were in line with the requirements laid down under s89. This was so important, because the panel should, at the preliminary stage, see whether the motion met the criteria set out in the definitions. These requirements should be clearly articulated because they were the key. They should not be uncertain and ambiguous. The National Assembly and its Committee on Rules should deal with the process of removing the President, in collaboration with the panel of experts.

The Chairperson (and Speaker of the National Assembly), said the impression she was getting was that there was a consensus on the work that had been done by the sub-committee. They were largely supporting the option one. She commented that Members ought to think about the amount of time given to themselves to complete the work. The work had been done without delay. The deadline was set out to be March 2018. The work should go to the caucus so that all Members could make their inputs and then be able to polish up the work.  

Dr Ndlozi remarked that the Speaker’s comments were not far from his understanding. He did not want the impression to be made that they would be adopting the rules to go to the House. The rules were still unclear. The salient question was: Why should the court state that the rules were inadequate if the ad hoc committee system was correct? In an ad hoc committee, membership was set and their work was reliant on experts who were not Members of Parliament. Experts included people who led evidence. What was so different about what the sub-committee was putting forward? That was the simple question that he was putting to the Committee. The main issue was the proportional representation. If this could be removed, the EFF was ready to adopt the report next week. Firstly, the committee should not be based on proportional representation. There was a proposal of an hybrid option, where every party would be represented by one member, along with the panel of experts advising that committee. The decision should also not be based on the majority of one party. To avoid this, all parties ought to have one person on the committee. Secondly, at the preliminary stage, it would be illegal if the committee where the majority of members came from one party had the power to stop the motion. In principle, the preliminary report should simply state whether there was a prima facie case or not. There was no need to vote on this. That had been the sub-committee’s agreement. First, the preliminary report should go to the National Assembly for noting, and not voting.

Ms Didiza said she was happy that Dr Ndlozi had said that they were not falling apart. In reading the judgment, he had raised two issues relating to the composition of the committee and voting at the preliminary stage. If one looked at the matters before the court, the main issue had been the lack of a mechanism, which was not there in the Constitution. The rules drafted by the sub-committee had taken matters beyond that stage and created such a mechanism. With respect to the ad hoc committee, there had been different views provided by the minority and majority judgments. What Justice Jafta had said was lacking in the ad hoc committee system. However, she agreed with Mr Steenhuisen that it did not matter how the Committee should be composed, because there were enough safeguards. Much work had been done, even though it was still in progress. They should allow the work to be taken to caucus to solicit the views of other Members.

Mr S Tsenoli (ANC, Deputy Speaker) said that Justice Jafta had made an observation with regard to both confidences. If both confidences were to succeed, it would be illegal and unconstitutional. It would not have been done in accordance with section 89. That was what he had said in the judgment. If the process of removing the President were done with an objective assessment of the existence of three grounds under s89, that would be unconstitutional.  They were talking about structures. He said that there were different lawyers who had provided different views in the court. He agreed that what Dr Ndlozi had said -- that there was agreement among members of the sub-committee -- was true. He had read the minutes of the sub-committee. It would be wise to operate on the basis of consensus. If there was an agreement, such agreement should not be changed.

Ms J Kilian (ANC) said that it was a very complex judgment to read, especially when one got confused as one went through its paragraphs. Reading through the judgment, two main problems had been highlighted. Section 192 of the Constitution did not give representation to all political parties and, under paragraph 196 of the judgment, the court had stated that there should be a specific mechanism tailored for an impeachment process, as contemplated in section 89. Taking this into consideration, it would imply that the motion brought forward by the DA in 2016 had been unconstitutional, because it was not in line with the requirement set out under s89. Dr Ndlozi should remember that when the composition proposal was brought forward by Ms Mazzone (DA), the ANC had reserved its position. The ANC said that it believed that section 57 gave the right to the National Assembly to establish its committees in accordance with the democratic outcome. That was the position of the ANC.

With regard to preliminary investigations, she referred the Committee to paragraph 9 of the judgement. She said that a reasonable decision should not block a motion of no confidence if grounds existed. That was where Members should focus. The committee should be established in the same manner that other committees engaging in inquiries had been established.

Dr Ndlozi said that Members ought to remember that when the composition was proposed, the sub-committee had agreed that the National Assembly had the power to establish its committees. Referring to paragraph 9, he said that the composition of the committee at a preliminary stage should be in such a way that the majority from one party should not block the motion. Once the preliminary stage had been concluded, the preliminary decision could be taken for review so that the blockage was avoided. It was after the preliminary stage that the impeachment process could start.

Mr Steenhuizen said that the problem was not how the committee was constituted, but rather how the committee could take a decision that would lead to a deadlock due to the problems had been raised by Dr Ndlozi. The deadlock would occur when the committee failed to reach a consensus. This would force the committee to find common ground to ensure that a blockage was avoided.

The Chairperson agreed. She said that the initial stage was very important because what would be decided would determine whether the motion would proceed or not.

Mr Mdakane said that, on that point, his understanding was that members of the sub-committee agreed on option one. It had to be decided whether the number of members would be 31 or 39. It was at the discretion of the Speaker. The committee would set up a working committee, or a sub-committee which was not proportional. By its very nature, a work- or sub-committee was not proportional, because it would submit its report to the committee. There would be a committee and a sub-committee. A sub-committee would work with the preliminary processes. The sub-committee would work on factual issues and would have the panel of experts to assist it. After establishing a report, it would report to the main committee. The proportional representation came in with the committee. However, no committee could take a decision on behalf of the National Assembly. The National Assembly would take the decision. It could only vote. At the preliminary stage, the report would be presented to the National Assembly and would be voted on by a simple majority (50+1). The court had noted that the preliminary report should be tabled to the National Assembly for consideration. A two-thirds majority was needed with regard to the report submitted by the main Committee. The Committee on Rules might be sitting once in five years or 10 years. He proposed that 39 members of the sub-committee could work and deal with preliminary processes.

Mr M Booi (ANC) reminded Dr Ndlozi that the sub-committee should be established. The Constitutional Court had warned that they should be mindful of majority representation. However, the National Assembly had to initiate and facilitate the preliminary processes. There was nothing substantial that had been changed in the rules in Dr Ndlozi’s absence. He cautioned that rules should not be written subjectively, but objectively, because these rules were being written to address not only the present situation, but also future situations.

Mr Mthembu said he would agree with the proposal of 39 members to constitute a sub-committee. It would be meeting once in a while. He reminded Members that the drafted rules were being presented for consideration, and were not final. They would be taken to caucus for further discussion. At their initial presentation, they seemed to be good. Prior to drafting of the rules, there had been no mechanism. Members should be happy that there was, at least, a proposed mechanism. A further report would be established on the basis of the caucus outcome. Members of the committee to be established would work, discuss and debate on the basis of established principles. Once they had established that there was prima facie evidence, there would be an inquiry. There would be experts to assist the committee, whether at the preliminary or second stage. On the issues raised by Dr Ndlozi, he said he believed that they would be discussed in the caucus. He stressed that the question of proportional representation came with the question of majority, and this was where the democracy was built.

Dr Ndlozi said that Mr Booi should read the entire paragraph, and remarked that Members should agree on what the judgment said. They should have the same understanding and interpretation. The Constitutional Court had alluded to three stages. The first was the preliminary stage, where an inquiry into the existence of grounds was set out in section 89. Section 89 contemplated an inquiry. How could one vote on the preliminary stage? If the determination of prima facie evidence was subjected to a vote, the preliminary stage was subject to the generosity of the majority. The inquiry at the preliminary stage did not remove the President, and the second stage did not remove the President from office; rather the National Assembly voted, and the President could be removed from office with the support of a two-thirds majority. The President could also be removed from office on the basis of other mechanisms, but in terms of the s89 mechanism, it was only the National Assembly that had the power to remove the President. He therefore submitted that the issue of proportional representation should be removed in the drafted rules. Proportionality should not apply in the two-stage approach.

Mr Steenhuisen said that, in his understanding, the preliminary stage determined whether there was prima facie evidence to support allegations of the violation of one or more requirements listed under s 89. He was of the view that there was a need for an expert in constitutional law to assist in the determination of whether or not the motion was in line with s 89. 

Mr Hlengwa agreed. He said that there were still issues that were uncertain and needed clarity. For example, if a Member filed a motion of non-confidence, it had to be dealt with by a sub-committee at the preliminary stage. The sub-committee then reported to the National Assembly for voting on it. The report was then referred to the Committee for consideration, and the Committee tabled the report again to the National Assembly for voting. In these processes, the National Assembly voted twice. The manner in which he understood the decision of the court was that the first stage should not be subjected to the voting process. The IFP did not agree with voting at the initial stage. It supported the position that if the Speaker was of the view that the outcome of the preliminary inquiry was reasonable, the motion should proceed to stage two.

Mr Mkhuseli Mbebe, Secretary to the Chairperson, said that the tabling of the report twice in the National Assembly was a dilemma they had to grapple with. According to the judgment, the National Assembly was required to decide on whether grounds existed for the impeachment processes to commence. In other words, the first presentation in the National Assembly was all about noting and affirming the existence of grounds to set off the motion of no confidence. Here, a simple majority was needed. The second round of the presentation in the National Assembly would be done by the Committee, when the National Assembly would vote either in favour of impeachment or not. For the impeachment to succeed, a two-thirds majority of Members was required. The process was two stages.

Ms Kilian agreed. She said that for the impeachment to commence, the National Assembly should determine whether one or more grounds existed. This ought to be voted on the basis of a simple majority.

Ms Didiza agreed with Mr Steenhuisen’s view. She said that issues of divergence were apparent. However, this was not a big issue as she believed Members would find one another as the discussion on drafting clear and certain rules proceeded.

The Chairperson agreed and commented that so far, Members were in consensus of applying the option one mechanism. However, the concerns of the EFF were not dismissed. Accordingly, the report on the drafted rules should be taken to caucus for their views. A constitutional lawyer should also have a look at the report to advise the sub-committee on whether it was compliant with the judgment and in line with section 89.

Dr Ndlozi proposed that the Chairperson outsource a former constitutional court judge to give the sub-committee an opinion on the matter.

The Speaker said that the time frame for consulting parties’ caucuses was two weeks. They should report back after the consultations. By mid-March, the Committee should be done with the drafting.

The meeting was adjourned.