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2018-01-18
Demystifying the Impeachment of the President case


The constitutional court (Concourt) case  of the Economic Freedom Fighters and Others v the Speaker of Parliament and the President of the Republic of South Africa [Case CCT 76/17], ruled that the National Assembly (NA) failed to make rules regulating the removal of the President in terms of section 89(1) of the Constitution and ordered the NA to make such rules without delay.  The Parliamentary Subcommittee on the review of the NA rules met on 10 January 2018 to discuss the formulation of rules to regulate the removal of a sitting President.

The ruling raised eyebrows because Chief Justice Mogoeng Mogoeng characterised the ruling or majority judgment as a textbook case of judicial overreach, that is “a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament”.

The Concourt case is connected to the Nkandla judgment (Economic Freedom Fighters and Others v Speaker of the National Assembly [2016 ZACC 11]).  In this case, the Concourt ruled that the President’s failure to comply with the Public Protector’s remedial actions was inconsistent with the Constitution and invalid.  The Concourt thus concluded that the President had in that way violated the Constitution, however also made the following statement:

“It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish and which mandate to give them, for the purpose of holding the Executive accountable and fulfilling its oversight role of the Executive or organs of State in general.  The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly.”

The burning question was whether it was necessary for Parliament to develop rules for an inquiry prior to the NA voting on a motion or resolution to impeachment a “sitting President”.

In his dissenting judgement, Deputy Chief Justice Zondo, emphasised that the Parliament already had rules in place for the establishment of an ad hoc committee.  Such a committee could have been used for an inquiry.  Political parties wishing to have an inquiry, could have tabled such a motion or request in the NA.  The NA would then have voted on such a motion.  Section 53(1)(c) of the Constitution provides that all questions before the NA are decided by majority of votes cast.  It is therefore incorrect for the litigants to approach the Concourt and make a decision that should essentially be the outcome of an NA resolution.

Justice Zondo pointed out that the NA was in the process of developing rules in terms of Section 89(1).  All political parties were represented on that committee and were requested to submit comments.  The issue is therefore moot in that there was no dispute for the Concourt to consider.  All the political parties had to do was to submit their comments to the committee.  The Justice expressed concern that overlooking these fundamental evidences will encourage political parties represented in the NA to ignore internal remedies and Parliamentary structures and processes. 

As there was already a Concourt ruling on the President’s conduct, the NA only needed to take a view on the seriousness thereof.  This did not require a fact-finding investigation but rather a value-judgement by Members of Parliament (MPs).

Justice Jafta led the majority judgement (hereafter “majority”) and highlighted that the removal of the President in terms of section 89(1) can only be done if there has been a serious violation of the Constitution; a serious misconduct, or an inability to perform the functions of the Office.  There must therefore be an institutional predetermination of what a serious violation of the Constitution or law is, misconduct, or an inability to perform the functions of the office.  Also, given the seriousness of the section 89(1) outcome, the President must be afforded an opportunity to defend himself. 

The majority cautioned about the size and composition of the ad hoc committee, particularly that the ad hoc committee must mirror the representation in the NA.  It is also not necessary for all parties to be represented in the ad hoc committee.  Concern was also raised that the ruling party may use its majority to prevent an impeachment complaint from reaching the NA.

The majority concluded that section 89(1) implicitly imposes an obligation on the NA to make rules specifically tailored for an impeachment.  The NA therefore breached section 89(1) of the Constitution, in failing to make rules regulating the impeachment process.  The majority emphasised that the court order does not usurp the NA’s powers but merely directs that the NA must exercise its powers without delay.  The NA and President was ordered to pay the cost of the applicants.

Chief Justice Mogoeng Mogoeng emphasised that in order to vote on an impeachment motion, the NA does not require rules or procedures similar to those followed by courts.  MPs are right-thinking and would not by way of a two-thirds majority pass a motion to impeach the President when no grounds exist.  The intention is to find an effective mechanism to facilitate the NA’s obligation to hold the President accountable via the impeachment avenue.  It is not about affording the President an opportunity to be heard.

Furthermore, an approach that requires an inquiry all the time, stifles any debate or voting unless there is an institutional predetermination.  Grounds for impeachment is about MPs, who are best placed to make a value judgement.  It is appropriate for the Concourt to hold a view and give guidance and another to impose a detailed preference on another arm of State. 

The Chief Justice concluded that the sum total of the constitutionally permissible judicial enquiry is that the Concourt should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution.  It is therefore not for the Concourt to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfil responsibilities primarily entrusted to it.  The Concourt ought not to blink at the thought of asserting its authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved.

Zelna Jansen, CEO

Zelna Jansen Consultancy