Formulation of Rules to regulate Section 89 of the Constitution (Removal of the President)

Rules of the National Assembly

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

National Assembly Rules Committee met to consider, discuss and make proposals on the Notes on Procedures to Remove a President in terms of Section 89 and the Draft Rules Removal of the President from its previous meeting.

The Secretary of the National Assembly (NA) presented the notes and the draft rules to the Members. The compilation of the notes on procedures and the draft rules of removal of the President had been guided by the deliberations of the sub-committee at the previous meeting. The sub-committee had looked at the Judicial Service Commission Act as well as the Powers and Privileges Act. Submissions by the Economic Freedom Fighters (EFF) and the African Independent Congress (AIC) were considered, as well as the NA’s international research.

The Secretariat briefly explained what section 89 was about and what the court had said should be done. The following principles were gathered from the judgment:

  1. The Assembly Rules must provide for specific Rules to regulate Section 89 proceedings (par 196);
  2. The National Assembly may only remove the President in terms of  Section 89 on those grounds listed (par 176);
  3. There must be an institutional predetermination of what the serious violation of the Constitution or the law was. The same must apply to serious misconduct and the inability to perform the functions of the office (par 178).
  4. The National Assembly (the House) must decide whether grounds exist in order to initiate a process envisaged in the Section (par 179);
  5. A process to determine whether a President should be removed must be preceded by a preliminary enquiry to be determined in the Rules (par 180);
  6. A motion in terms of Section 89 must be accorded priority over other business in the Assembly (par 215).

The issue of proportional representation had to be discussed as there was potential for the motion to be blocked at either the preliminary level or at the House level. Furthermore, the initiation of a Section 89 procedure would take the form of a motion.  The draft rules provided that any Member of the National Assembly may give notice of a motion to remove the President. However, such motion would be limited to a properly formulated and substantiated charge on the grounds specified in Section 89, and must comply with the relevant Assembly Rules. The Speaker may disallow the motion only in the event it does not meet these requirements.

The judgment required the House to pursue a preliminary review of any charges, and decide whether grounds exist in order to initiate a process envisaged in Section 89.  Once the House has agreed that a motion be proceeded with, the structure must undertake the inquiry in order to establish the veracity and, where required, the seriousness of the charges and report accordingly. The final report would then be tabled in the House for consideration with due urgency. If the report recommends that the President be removed from office, the draft rules provided that the question be put to the House directly for a vote. If agreed, the President is immediately removed from office

The NA had to establish a mechanism to inquire into matters related to Section 89 proceedings. In this regard, three options were provided:

  • A Standing (permanent) Committee comprised of Members of the Assembly with the discretion to solicit the advice and/or assistance of external persons.
  • A Standing Committee, obligated to make use of external persons during certain proceedings/ stages of an inquiry.
  • The establishment of an external panel of appropriately qualified persons/ experts (retired judges or medical experts) to inquire into Section 89 matters.

After thorough discussion and engagement, Members agreed on working on the second option, which was the hybrid of a committee with an external panel, as well as the third option which was the external panel of judges. Members felt the hybrid option had issues of composition and proportionality, but a practical approach was reached. The panel for the hybrid would be judges and an evidence leader who would work with the committee. However, the third option of the panel would have to incorporate issues raised by EFF, and COPE’s timeframe concerns. The Members agreed to allow the notice of motion for removal to be read in the House.

Members decided that a second draft would be made and sent to the Members the following day in preparation for a final meeting to finalise the proposals.

Meeting report

The Chairperson emphasised the need for a detailed dealing of the draft rules so that everyone would be comfortable and be able to communicate with fellow party members. He stressed that the rules being drafted were for a president, and not the current President, as the issue had been long overdue.

Notes on Procedures to Remove a President in terms of Section 89

Mr Masibulele Xaso, Secretary: National Assembly (NA), took the Members through the compilation of the notes on procedures, and said that the draft rules for the removal of the President were guided by the deliberations of the sub-committee in the previous meeting. The sub-committee had looked at the Judicial Service Commission Act and the Powers and Privileges Act. He said the inputs from the Economic Freedom Fighters (EFF) and the African Independent Congress (AIC) and the National Assembly’s international research, had also been considered. 

Mr Xaso briefly explained what section 89 was about and what the court said should be done. He said the principles gathered from the judgment were:

  • The Assembly Rules must provide for specific rules to regulate Section 89 proceedings (par 196);
  • The National Assembly may only remove the President in terms of  Section 89 on those grounds listed (par 176);
  • There must be an institutional predetermination of what serious violation of the Constitution or the law is. The same must apply to serious misconduct and inability to perform the functions of the office (par 178).
  • The National Assembly (the House) must decide whether grounds exist in order to initiate a process envisaged in the Section (par 179);
  • A process to determine whether a President should be removed must be preceded by a preliminary enquiry to be determined in the Rules (par 180);
  • A motion in terms of Section 89 must be accorded priority over other business in the Assembly (par 215).

He said that the issue of proportional representation had to be discussed, as there was potential for the motion to be blocked at either the preliminary level or at the house level.

Mr Xaso said the initiation of a Section 89 procedure would take the form of a motion.  The draft Rules provided that any member of the NA may give notice of a motion to remove the President. However, such motion would be limited to a properly formulated and substantiated charge on the grounds specified in Section 89, and must comply with the relevant Assembly Rules. The Speaker may only disallow the motion in the event it does not meet these requirements.

He continued that the judgment required the House to pursue a preliminary review of any charges, and decide whether grounds exist in order to initiate a process envisaged in Section 89.  Once a motion to remove the President had been received by an appropriate structure it must scrutinize the motion and any supplementary evidence to assess whether sufficient grounds exist for the Assembly to proceed with the motion and report to the House thereon.  He emphasised that once the House had agreed that a motion be proceeded with, the structure must undertake the inquiry in order to establish the veracity and, where required, the seriousness of the charges and report accordingly. The final report would then be tabled in the House for consideration with due urgency. If the report recommended that the President be removed from office, the draft Rules provided that the question be put to the House directly for a vote. If agreed, the President is immediately removed from office

He concluded that the NA must establish a mechanism to inquire into matters related to Section 89 proceedings. In this regard, three options were provided:

1.         A Standing (permanent) Committee comprised of Members of the Assembly with the discretion to solicit the advice and/or assistance of external persons.

2.         A Standing Committee, obligated to make use of external persons during certain proceedings/ stages of an inquiry.

3.         The establishment of an external panel of appropriately qualified persons/ experts (retired judges or medical experts) to inquire into Section 89 matters.

There was also an option put forward by the United Democratic Movement (UDM) suggesting that there could be a committee of Parliamentary Members, chaired by a judge.

Draft rules for removal of president

Mr Xaso said that the first part emphasised definitions, and they were greatly assisted by the legal department on the matter. They had defined terms as:

  • “inability” meant “a permanent or temporary physical or mental condition of the President;”
  • “misconduct” means “unacceptable, improper or unprofessional behaviour by the President”;
  • “serious” means “an intentional, malicious or reckless act or omission performed by the President otherwise than in good faith”

He said that the rules on initiation of the procedure were that:

  1. the motion must be limited to a clearly formulated and substantiated charge on the grounds specified in Section 89;   
  2. the charge must relate to an action or conduct by the President in person and not an issue for which the President may be responsible by virtue of his/her Executive authority in terms of Section 85 of the Constitution; and
  3. the motion is consistent with the Constitution, the law and these Rules.

Non-compliance with criteria

  1. The Speaker may disallow a proposed motion to initiate proceedings only if it does not comply with the specified criteria.
  2. If a proposed motion is disallowed, the reason for disallowing it must be provided to the relevant Member, who may thereupon amend and resubmit the motion.

(3)      If a proposed motion after amendment continues to be inconsistent with the specified criteria or an amended version is not submitted, the reason for disallowing the motion, or the amended motion as the case may be, must be provided to the Member and the House. 

Referral of motion

  1. If a motion is in order, the Speaker must refer the motion, and any supporting documentation provided by the Member, to the Committee/Panel established for the purposes of considering Section 89 matters.
  2. The Speaker must inform the House and the President of such referral without delay.

He said consideration of the report had been communicated in the notes from the previous meeting and the mechanism and functions of the Committee would follow the below structure:

OPTION1: COMMITTEE

1.         Establishment

There is a Committee to consider motions in terms of Section 89 of the Constitution.

2.         Composition

            The Committee consists of the number of Assembly members that the Speaker may

determine with the concurrence of the Rules Committee, subject to the provisions of

Rule 154.

3.         Chairperson

The Committee must elect one of its Members as Chairperson and another as Deputy Chairperson.

4.         Functions and powers

  1. The Committee must:
  1. consider any motion proposing to remove the President in terms of Section 89 of the Constitution, referred to it by the Speaker, and make a recommendation to the House whether sufficient grounds exist for the Assembly to proceed to inquire into the removal of the President;
  2. in considering the matter, afford the Member in whose name the motion stands an opportunity to substantiate the charge(s); and
  3. when the House has approved the recommendation to proceed with an inquiry, proceed to establish the veracity and, where required, the seriousness of the charges and report to the House thereon.
  1. The Committee may/must, before conducting the inquiry, appoint certain appropriately   qualified persons to assist it with the inquiry provided that the appointment must be based on specific terms and conditions; and the views of such persons are duly considered and included in its final report.
  2. The Committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner.
  3. The Committee must afford the President the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice.
  4. For the purposes of performing its functions, the Committee has all the powers applicable to Parliamentary committees as provided for in the Constitution, applicable law and the Rules of the National Assembly.

5.         Decisions

A question before the Committee is decided when a quorum in terms of Rule 162(2) is present and there is agreement among the majority of the Members present, provided that when the Committee reports, all views expressed in the Committee must be included in its report.

6.         Sub-committee

  1. The Committee may appoint a sub-committee to consist of the number of Members and party representation as determined by the Committee.
  2. A sub-committee appointed by the Committee has those functions and powers as provided for in Rule 172.

He said that the mechanism to inquire into matters related to Section 89 of the Constitution would be as below:

OPTION 2: PANEL

  1. Establishment

The National Assembly must establish a panel to consider motions in terms of Section 89 of the Constitution.

  1. Composition

The Panel consists of five retired judges proposed by the Speaker, provided that the Panel is gender balanced.

  1. Chairperson

The National Assembly must appoint, on the recommendation of the Speaker, one of the judges as Chairperson of the Panel.

  1. Decisions

A question before the Panel is decided by a majority of panellists provided that at least three panellists are present. 

  1. Functions and powers
  2. The Panel must:
  3. consider any motion proposing to remove the President in terms of Section 89 of the Constitution, referred to it by the Speaker, and make a recommendation to the House whether sufficient grounds exist for the Assembly to proceed to inquire into the removal of the President;
  4. afford the President the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice;
  5. when the House has approved the recommendation to proceed with an inquiry, proceed to establish the veracity and, where required, the seriousness of the charges set out in the inquiry and report to the House thereon; and
  6. conduct its proceedings in public in a manner that is reasonable, impartial and procedurally fair.
  7. The Panel may –
  8. appoint a legal practitioner to lead evidence; and
  9. also afford parties in the National Assembly an opportunity to lead evidence.
  10. The Panel has the powers given to it by the Assembly, including the power to subpoena witnesses.

In conclusion he said that the issue of the ability to subpoena would have to be discussed and the legality of it be established. Three issues -- proportional representation, the potential of the House to block the motion and dealing with decision-making -- were flagged and had to be discussed in detail.

Discussion

Ms N Mazzone (DA) said that the DA was in support of option two that gave the standing committee the obligation to make use of external inquiry. She said that the emotional takeover of situations, the power that Members had and majoritarianism could be controlled by expert involvement, and the central focus of power to Parliamentarians would not be the best representation of such important decision. Majoritarianism was a huge issue and progress would not be made if parties were merely outvoted. The external experts were an important component and this option would also help relieve pressure on the process. The committee members should be determined by parties so that other representatives from the particular parties could stand in for absent party members in the committee.

Ms J Kilian (ANC) said that Parliament had a constitutional review committee, but she suggested the need for a specific structure because an impeachment motion was a serious matter. The nature of the structure would have to be an ad hoc committee. The ANC would opt for option one, but would consider option two as it made an external panel obligatory. She emphasised that the concept of majoritarianism was at the core of politics, and should not be vilified. The constitution called for participatory democracy and the structure would have to be proportionally represented, so perhaps  there could be a sub-committee for scrutiny if need be. The rules designed had to be workable for all with a practical arrangement.

Ms D Carter (COPE) said COPE viewed option two as the best of the three options. She said there were concerns for option three as to who the external panel would report to, and payment to them was not something that could be afforded. She expressed concern at the absence of timeframes on the issue of the draft rules, and a secret ballot option had to be looked at as well and clearly prescribed.

Dr M Ndlozi (EFF) said that there were rules that could no longer be debated, as they were clearly stated in the judgment. The judgment provided a framework and outlined that an inquiry could not be made through a committee that operated on the basis of a majority vote. The judgment had a principle that eliminated the Speaker from having an option in the motion removal, and this had to be kept in mind.  Furthermore, the new EFF removal procedure made it clear that the removal motion could be initiated once every six months, and the Rules Committee had to propose the names of five retired judges to the NA for consideration. The Speaker would have to be informed of the motion. The panel of five judges would have to be considered at the beginning of Parliament, and the chosen three would have to sit in on the consideration of an impeachment motion, and the panel would not necessarily have to be on an ad hoc basis to remove impartiality. This mechanism would not mean abdication of responsibility -- it was only Parliament alone that had the mandate to remove a President, according to the judgment. He disagreed with, and sought clarity on, the formulation that stated “the charge must relate to an action or conduct by the President in person and not an issue for which the President may be responsible by virtue of his/her Executive authority in terms of Section 85 of the Constitution”. He felt that retired judges were the best to curb bias and emphasised the importance of a gender-balanced panel.

Mr M Hlengwa (IFP) said that the issue of an external panel must be answered if it was not Parliament deferring its responsibility, and it needed a substantive response. He added that the judges would not add any new costs if they were to take up the responsibility, as judges were paid for life. He asked about the process of applying the motion. On what basis would a Member submit a motion of removal to the Speaker to remove frivolity, and the basis of seriousness also had to be defined. The IFP believed that to all intents and purposes, this was a Parliamentary process and duty. It believed building on option two and giving it purposeful functionality. It would not agree to majoritarianism, and needed a process with collective interest. The absence of oversight over the presidency in terms of a Parliamentary committee gave this committee a role of grave importance.   

The Chairperson noted that option two was common to the Members, but the EFF seemed to opt for the third option. The Chairperson asked the Parliamentary legal advisor to clarify the sec 89 judgment with regard to the appropriate mechanism for a preliminary inquiry.

Advocate Frank Jenkins, Senior Parliamentary Legal Advisor, said that the committee system was not tailored or adequate for the sec 89 procedure. He said that the court wanted to avoid the blocking of the debate being brought to the House, as Members of the majority party could block the motion through majoritarianism.

Dr Ndlozi  asked Adv Jenkins what the judgment had said on the committee issue, and urged him to tread carefully between splitting his opinion and the facts of the judgment.

Mr N Booi (ANC) said that Members of Parliament would not want to be represented solely by the panel in the preliminary process. They would have to be in the preliminary process and make the procedure mechanism a hybrid. He asked where the impartiality crept in, as the panel would be experts that also voted. Ideologically it was difficult to grasp the option that excluded the Parliamentarians in the initial stage. It would be important for the preliminary stage to have Parliamentarians involved and have them understand the matter. as this meant that the people represented by the constituents were included.

The Chairperson said that Members of Parliament made the appointment of the judges and judicial officials. The issue of impartiality was due to a lack of pressure, but Parliamentarians had a stake in all appointments. The ANC, DA, IFP and COPE were of the view that the Parliamentarians should collaborate with the legal process, and the EFF had asked for the panel of judges to be scrutinised.

Dr Ndlozi said it had not been articulated as to how the hybrid would look, and there was need for emphasis on this option to check for its efficiency and impartiality, based on the judgment. How would it be done, and who would sit on it? He disagreed with Adv Jenkins that a motion for the removal of a President where the grounds of serious violations were not predetermined would be inconsistent and subject to review. The House had debated on removal, and not on the determination of the serious violation. He quoted page 178 and 179 of the judgment on the commencement of the impeachment process. He told Mr Booi that the importance in relation to judges was the issue of their being conflicted, and not their partiality. The Members of Parliament would debate and vote, but the judiciary did not have the power to remove the President. They should get someone else to determine serious misconduct, but the removal in sec 89 was for the NA. The panel would be a fact finding machine doing an investigation. To the IFP, the motion for impeachment must comply with a set of criteria. He read the criteria to initiate proceedings in the judgment, and stressed that there had to be prima facie evidence. The criteria just had to be tightened. The Speaker of the NA must make them public to the House and the initiator after reports on the findings, so only serious misconduct is debated. He added that the experts on the panel must always be judges, and not medical experts.

Ms Mazzone said that Members had to make sure that the concept of a multiparty democracy reigned supreme in the decision making. The issue was to do it in a fair and practical manner. She said that the first stage was an inquiry, and suggested that a committee of 13 people from each party, 4 retired judges’ -- experts in constitutional law -- and an evidence leader for the preliminary inquiry. It must have a time criterion. Phase two would be the outcome, with a report drafted by the three judges and the evidence leader being sent back to the committee, and then a report presented to Parliament. The evidence leader would not be part of the decision-making. She said this was a simplistic and straight-forward solution to a complicated process so that things could get done.

Dr Ndlozi asked Ms Mazzone how the mechanism of decision-making would be decided.

Ms Mazzone said that 17 people would mean that there would be no deadlock, with every party having one representative, so there would be a give and take situation. She said the evidence leader would provide all the evidence, so a sober decision could be made by the panel. The problem of not reaching things by consensus would be handled, so having one vote by every member would avoid such deadlocks.

Ms Kilian said there was a reasoning building up to the final order, and asked why the ad hoc committee was not being considered. They could have an ad hoc sub-committee, but she wanted to know why the inner table was not considering it. The ad hoc committee had a different composition. She asked Adv. Jenkins if Members would have to accommodate just the specific order by the judgment, or the others also cited in the judgment to the NA. She asked Dr Ndlozi if the impartiality of the panel of judges could not be blended in the option of two hybrids, and why there was no role for politicians. She said it would be wrong to introduce the six months’ timeline, as something might come up instantly and would have to wait for six months. She said that having one Member from each party in the preliminary committee would be very unusual.

The Chairperson said that the issue of a committee with 17 members should be worked on, and Adv Jenkins should assist by looking into the proposal. The team working with the secretariat would look at all documentation submitted, and then make the suggestion made by Ms Mazzone clearer. The presentation by the EFF would be analysed and the issues incorporated in the secretariat’s draft. He said that they were clear on the overall judgment, but they had to regulate any misgivings people would have on it.

Mr Xaso reiterated the deliberations by the Committee were for clarity, and said that they would now be working on the hybrid and panel options. The hybrid was argued to have issues of composition and proportionality, and the panel for the hybrid would be judges and an evidence leader that would work with the committee. The third option of a panel would have to incorporate the issues raised by the EFF, and the timeframe on the periods as argued by Ms Carter. He then suggested that maybe the Members should be allowed to read out the notice of motion in the house.

Mr Booi told Dr Ndlozi that the judgment was based on an EFF submission, and the process was therefore institutionalised. He said that using the judgment alienated the rest of the Members and would lead to a lot of problems. The preliminary stage was based on the institutionalisation of the process. The NA must overlook the preliminary phase.

Dr Ndlozi said what was institutional was the power of removal. The preliminary investigation was up to the NA regarding the issue of investigation. The hybrid panel with 17 members required people working on the model to be careful about the risks of unfair stopping of a motion going to the NA. The preliminary investigation must not be able to stop the motion unfairly. Establishing an ad hoc committee process did not have a procedure, according to the judgment’s affidavit. He had urged the proportional party proposal to not be non-negotiable, and the ad hoc committee process was said to lack that. The evidence leader would not be part of decision making. He proposed that the Chairperson of the panel would have to be a judge, and a decision on whether it was ad hoc or not had to be made, but he was against the ad hoc option. He asked the Committee about the criteria that the motion must meet, as his misgivings were on the phrase of it ‘not being personal,’ so this had to be ironed out. He asked for a mechanism to avoid frivolity in place of the six months’ suggestion, and a clearer set out the mechanism for getting judges should be determined.

An official stated that Parliamentary privilege applied only to Members, and Members needed to consider this and incorporate the panel for partiality. The criteria were trying to state that the misconduct must have been that of the President who had violated the constitution, and not the government. However, the phrase would be worked on.

Ms Carter expressed concern about notifying the NA, as a matter might arise when Parliament was not sitting. She also asked how the ethics committee worked in theory when the House was not sitting.

The Chairperson said that when the House was not in session, the initiator would write to the Speaker.

Ms Kilian suggested that they get drafts of the meeting and see to the details at another time.

The official said that they needed a week to revise the draft so that they could get a better understanding.

Dr Ndlozi said that there was no need to consider anything regarding seriousness, and also any other sections of the draft rule. What needed to be drafted did not need a week -- it had to be done without delay. He suggested that the Committee should reconvene the following day and finalise the proposal for the Rules Committee. The Committee would then decide on the two options -- the panel of retired judges. or the hybrid committee.

The Chairperson said that the secretariat had to work on the second draft despite Members insisting it be the final draft due to time issues.

Mr Xaso suggested that the secretariat should work on the draft and have it sent to the Members by end of the next day so that they could finalize the proposal by the following week.

Ms Mazzone asked for avoidance of the term ‘ruling party’ and rather use ‘governing party,’ as the nation was ruled by the people.

The meeting was adjourned.

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