Subcommittee to discuss procedures related to impeachment of president
10 January 2018
Cape Town – A draft impeachment procedure drawn up in April 2016 and a comparative study about impeachment proceedings in seven other countries will be among the documents MPs will work through on Wednesday when the National Assembly Subcommittee on Review of Rules meets to deliberate on a draft procedure to remove the president in terms of section 89 of the Constitution.
"This follows the Constitutional Court's judgment handed down on 29 December 2017 that the National Assembly had failed to put in place proper rules regulating a procedure for section 89(1) of the Constitution," reads a statement from parliamentary spokesperson Moloto Mothapo.
"The Constitutional Court ordered the National Assembly to make such rules without delay to initiate a process under section 89(1), in terms of the newly developed rules."
He said MPs serving on the subcommittee had been supplied with documents to be considered there, including a draft procedure drawn up in April 2016, but not finalised, and a comparative study, compiled in 2015, about impeachment proceedings of seven other parliaments on the removal of a head of state.
City Press reported that the draft from 2016 outlines the proposed procedure on the tabling and processing of a motion to remove a president, stating that such a motion should be based on a recommendation to that effect by a committee of the National Assembly appointed to consider any relevant charges against a president.
This would be an ad hoc committee appointed by the National Assembly or the Speaker.
"A member may by motion propose that the assembly initiate proceedings in accordance with these rules to remove the president from office in terms of section 89 of the Constitution," it says.
Two-thirds supporting vote needed
The Speaker may disallow a proposed motion to initiate proceedings only if it does not comply with the specified criteria and if a proposed motion is disallowed.
The committee will also meet on Thursday, and the draft procedure, once finalised by the subcommittee, would need to be adopted by the National Assembly as part of its rules.
The South African Constitution does not specifically use the word impeachment, but section 89 of the Constitution describes a mechanism similar to what is called impeachment elsewhere.
The Constitution says the National Assembly must adopt, with a two-thirds supporting vote, a resolution to remove the president from office, only on the grounds of a serious violation of the Constitution or the law, serious misconduct or an inability to perform the functions of the office.
If the president is removed through this method for the first two reasons mentioned above, he may not receive any benefits of that office, and may not serve in any public office.
The subcommittee will have to flesh out how this will work.
Previous DA motion rejected
Even though there wasn't a prescribed process, DA leader Mmusi Maimane brought a so-called impeachment motion to the National Assembly in April 2016, after the Constitutional Court ruled that President Jacob Zuma failed to uphold the Constitution due to his handling of the Public Protector's recommendations relating to the Nkandla matter.
In his motion, Maimane asked that Parliament appoints an ad hoc committee to investigate whether Zuma should be removed. This committee would then have reported back to the National Assembly which will then decide whether he should be removed or not. The ANC voted against this motion and, subsequently, the ad hoc committee never was appointed.
In 1998 former US president Bill Clinton was impeached for perjury and obstructing the ends of justice in the wake of his affair with White House intern Monica Lewinsky, but it was decided not to remove him from office.
In 1974 impeachment proceedings were instituted against Richard Nixon following the Watergate scandal, but he resigned before proceedings got underway.
Last year South Korea removed Park Geun-hye following her impeachment after her aide Choi Soon-sil used her position to seek donations from businesses and influence Park's work.
In 2016 Brazil's Dilma Rousseff was removed from office after she was impeached over allegations of corruption. News24
Update:
EFF wants retired judges for impeachment committee
Cape Town – An impeachment committee consisting of retired judges is one of the ideas mooted on Wednesday when the National Assembly subcommittee on the review of rules started deliberations on a draft procedure to remove the president in terms of section 89 of the Constitution.
EFF MP Mbuyiseni Ndlozi raised the idea, saying that such a panel could consist of five retired judges. His reasoning, he said, was that this would help avoid the possibility of an impeachment motion "being blocked by the politics of majoritarianism".
According to Ndlozi's proposal, the judges would fulfil the fact-finding part of the impeachment process, while the National Assembly would vote to remove the president or not.
His proposal received support from ANC MP Nyami Booi, who referred to the Constitutional Court's decision last month that the National Assembly had failed to put in place proper rules regulating a procedure for section 89(1) of the Constitution – the section that deals with the removal of the president.
Booi said the constitutional judges found that Parliament's committee system wasn't strong enough for impeachment procedures and suggested that capacity is built "around what Dr Ndlozi is offering".
ANC MP Gerhard Koornhof said the law did not exclude the committee tasked with impeachment from using legal experts.
'Parliament cannot outsource responsibility'
DA chief whip John Steenhuisen said he wanted legal clarity on whether Parliament can delegate functions to people who are not MPs in terms of the powers ascribed by the Constitution to MPs.
Not everyone supported Ndlozi's idea.
NFP MP Moses Khubisa said: "Parliament must not be seen abdicating its role of oversight."
FF Plus MP Corné Mulder said he was "a bit sceptical" about Ndlozi's proposal and that he didn't want the legislature's power to be undermined.
"Parliament cannot outsource our responsibility," he said.
IFP MP Mkhuleko Hlengwa and UDM MP Nqabayomzi Kwankwa said MPs should play some part in the process.
"Impeachment is a political process," said Kwankwa. "Politicians should be allowed to interrogate the president."
Push to finalise process
In response, Ndlozi said there were many people fulfilling parliamentary functions who were not MPs, such as the Sergeant-at-Arms and "the professional hooligans" used to remove MPs from the House.
Chairperson of the subcommittee Richard Mdakane said draft rules would be compiled, with three proposals: retired judges on a panel, a combination of judges and MPs, and just MPs.
The subcommittee plans to have draft rules ready by next Friday, and have the final document that will be sent to the rules committee by the middle of February. This will then be sent to the National Assembly for adoption.
Ndlozi pressed hard to have the whole process finalised by the end of February.
"So that in March the process (of impeachment) can start," he said with a broad grin.
"I was hoping it could be done before the NEC meeting…" jested Steenhuisen in reference to the ANC's national executive committee meeting on Wednesday where the topic of Zuma's resignation or removal is believed to be a point of discussion.
