Business Day

Fears of impeachmen­t sabotage

• Parliament’s rules committee explores how to prevent the governing party from subverting processes to unseat an errant president

- Linda Ensor Political Writer ensorl@businessli­ve.co.za

Parties across the political spectrum are concerned about the danger of “majoritari­anism” subverting any future attempt to impeach the president.

The concern was expressed by members of the subcommitt­ee of Parliament’s rules committee, which met on Wednesday to formulate procedures for an impeachmen­t process.

It was prodded into action by last month’s Constituti­onal Court ruling that it do this without delay.

The subcommitt­ee hopes to finalise by the end of March parliament­ary rules for impeachmen­t of a president, including their adoption by the National Assembly.

The judgment was in the case brought by the Economic Freedom Fighters (EFF), the United Democratic Movement and the Congress of the People.

They asked the court to find that the National Assembly had failed to put in place mechanisms and processes to hold President Jacob Zuma to account for failing to implement the remedial action ordered by former public protector Thuli Madonsela in relation to the misuse of state resources during the upgrade of Zuma’s Nkandla residence.

The applicants also sought an order compelling the National Assembly to convene a committee to investigat­e whether the president was guilty of any impeachabl­e conduct under section 89 of the Constituti­on.

In a majority judgment, the court ruled that a prerequisi­te for the removal of the president was the holding of a preliminar­y factual inquiry into whether there had been a serious violation of the Constituti­on or the law, serious misconduct or the inability to perform the functions of his office.

The court also found that parliament­ary ad hoc committees were not suited for this pur- pose. The rules subcommitt­ee, chaired by Richard Mdakane, decided at the end of its deliberati­ons on Wednesday to distribute draft proposals to the parties for considerat­ion and to meet again later. One of the main issues discussed was how to prevent the factual inquiry being subverted by majoritari­anism, with even the ANC MP Mnyamezeli Booi emphasisin­g that mechanisms needed to be put in place to prevent this.

The majority party could not be the sole determinan­t of what happened to the president if there were widespread dissatisfa­ction in society about the way in which he was conducting himself, Booi said.

In the past, the ruling ANC has used its majority in the National Assembly and ad hoc committees to protect Zuma from attempts by opposition parties to unseat him.

EFF MP Mbuyiseni Ndlozi recommende­d that a panel of three to five judges be on permanent standby as a panel of impeachmen­t to conduct an inquiry when necessary once a motion including prima facie evidence of wrongdoing by the president had been submitted.

However, DA chief whip John Steenhuise­n questioned whether Parliament could delegate its responsibi­lity to hold the executive to account elsewhere. Inkatha Freedom Party MP Hlengwa proposed that MPs have a role in an impeachmen­t inquiry by judges.

In terms of Ndlozi’s proposal, the panel of judges would undertake preliminar­y fact finding and submit its report to a parliament­ary committee, which would decide whether a breach of the Constituti­on was serious or not. If serious, a motion for impeachmen­t would be tabled for debate and voting in the National Assembly.

Also of concern to MPs was how to prevent the speaker of the National Assembly from scuppering any attempt at impeachmen­t by refusing to institute a preliminar­y factfindin­g inquiry once she received a motion to impeach.

Booi stressed that the speaker should not have the power to decide whether a motion to impeach was processed or not.

One way to prevent this taking place, Steenhuise­n suggested, was by defining in the rules what constitute­d a “serious” violation of the Constituti­on and “serious misconduct”.

However, Council for the Advancemen­t of the South African Constituti­on executive secretary Lawson Naidoo, who was present at the meeting, did not think it wise to incorporat­e a definition of seriousnes­s in the rules as it might not cover all future circumstan­ces.

Parliament­ary legal adviser Frank Jenkins said it was the role of Parliament, not the courts, to decide what constitute­d a serious breach of the Constituti­on. This would include gross negligence and intent.

 ?? File picture ?? Check the rules: The subcommitt­ee on Parliament’s rules is hoping to finalise procedures for the impeachmen­t of a president after the Constituti­onal Court found that any impeachmen­t process, which President Jacob Zuma might face, had to be preceded by...
File picture Check the rules: The subcommitt­ee on Parliament’s rules is hoping to finalise procedures for the impeachmen­t of a president after the Constituti­onal Court found that any impeachmen­t process, which President Jacob Zuma might face, had to be preceded by...

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