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The adoption of new rules for removing a president through Parliament represents an advancement in South Africa's democratic health, writes Phephelaphi Dube.
In the course of a heavy news week filled with interviews for South Africa's next National Director of Public Prosecutions (NDPP), bombshells being dropped by the state capture commission of inquiry and a political party threatening journalists, the National Assembly (NA) quietly adopted new rules to govern the removal of a president in terms of Section 89 of the Constitution.
The adoption of the rules represents an advancement in South Africa's democratic health through affording the NA increased power to scrutinise and oversee the president as head of the executive. The rules will arguably go some way in curbing partisan behaviour by forcing political parties to consider a particular set of facts and making an informed vote, rather than votes premised on blind loyalty without an objective set of facts to guide the vote casting.
The rules are off the back of the Constitutional Court's finding in December 2017, that the failure by the NA to regulate the removal of a president in terms of Section 89 (1) of the Constitution was a violation of the NA's constitutional obligation to hold a president accountable. Section 89 (1) of the Constitution provides that a president may be removed from office only on grounds of serious violation of the Constitution or the law or serious misconduct.
Unlike the motion of no confidence in Section 102 of the Constitution, removal of the president in terms of Section 89 (1) has to be based on a factual assessment of a particular set of facts involving a president's conduct.
The new rules assist the NA in weighing the evidence to support the removal of a president. The rules provide that any member of the NA can initiate a motion to remove the president in terms of Section 89. Once the speaker of the NA has received the motion, the speaker must refer the motion, together with any supporting documentation to a panel comprised of three independent legal experts.
Importantly, the speaker is obliged to consult political parties represented in the NA regarding the appointment of the legal experts. This is an important measure to guard against possible accusations that the panel is biased.
The panel's function is to ascertain if there is enough evidence for the NA to proceed with removing a president. Also of importance is the fact that the panel is strictly tasked to function impartially and without fear, favour or prejudice. Thereafter, within 30 days, the panel must complete its mandated function and deliver a report of its findings to the NA. The 30-day timeline is perhaps to curtail the possibility of a president, or any implicated party, gaining some untoward advantage through delays in the process leading to the removal of a president.
In line with the understanding that the ultimate power to remove a president from office lies only with the NA, the panel's report is there to guide the decision of the NA, without necessarily binding the NA to concur with the panel's report. Thereafter, the NA must decide whether to proceed with an inquiry, using the report of the panel in support of its position.
Should the NA decide to proceed with an inquiry, then an impeachment committee will be seized of the matter. It is vital that the impeachment committee assess the panel's report in order to counter the possible perception that the NA has abdicated its constitutional obligation to hold a president accountable. As a footnote, the rules of the NA already make provision for members to table before the NA a motion with a resolution for the establishment of an impeachment committee with a mandate to conduct such an investigation or inquiry. Political parties have to date failed to use this mechanism, as the December 2017 Constitutional Court judgment noted.
The impeachment committee is then tasked with investigating, testing the veracity of allegations made, as well as the seriousness of the charges against a president. Once complete, the committee compiles a report to the NA, inclusive of all opinions voiced in the committee.
The speaker is then obliged, as a matter of urgency, to schedule the report for debate and decision. The fact that the rules stipulate the urgency means that the timing of the debate cannot be left to the speaker's discretion. This narrows the possibility of partisan bias where the speaker and president are most likely to be in the same political party.
Should the report recommend that a president be removed from office, then the NA must vote, with a two thirds majority vote successfully removing a president from office.
The rules are to be welcomed since they represent an important additional mechanism by which the president can both be interrogated and held to account. The rules further the grander constitutional scheme of a deliberative multiparty democracy and are central to the values of democracy, transparency, accountability and openness which underpin South Africa.
Suffice to say, the true reach of the newly adopted rules is yet to be tested. Given the failure of the NA to successfully pass opposition sponsored motions to remove the former president, despite damning court judgments and reports from the public protector's office detailing violations of the Constitution and other misconduct, it is perhaps debatable whether any president can be removed from office using these rules.
- Dube is a doctoral candidate at the North West University whose research focuses on constitutional property law. This article is written in her personal capacity.
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