Is parliament’s impeachment process unconstitutional?

Read More

Now that concourt has refused to hear President Cyril Ramaphosa’s case to overturn the Ngcobo report on whether he should be impeached because he did not make a case for direct access,I’m still left with the big puzzle I had on reading the report — it arrives at a “prima facie” finding based on “information” that does not meet the standard for evidence.

That much of the case is hearsay was the basis for Ramaphosa’s legal challenge.

I am not a lawyer but I follow a lot of cases and have argued in the concourt myself. What follows is based on the logic of the meaning of prima facie, which is widely known, separation of powers and my general understanding of the law.

Prima facie evidence is that which would win a case if it is not answered. For this to be so, the evidence must be admissible. Hearsay is generally not admissible unless it can be substantiated or there is a strong case to admit it in the interests of justice. Witnesses should be called to interrogate their basis for claiming hearsay is reliable. So why has such an eminently-qualified panel concluded that Ramaphosa has a case to answer, despite not being able to meet the usual standards for admitting hearsay?

To answer this question, it is useful to look at parliament’s rules for implementing Section 89 of the constitution, which provides for impeachment. Impeachment requires that two thirds of the members of parliament should vote to remove the president but only if the grounds are any of “a serious violation of the constitution or the law; serious misconduct; or inability to perform the functions of office”.

The purpose of the parliamentary rules on which the enquiry is based is to ensure that the parliamentary vote is based on proper grounds. So do the rules do that? The rules to give effect to Section 89 arise from a 2017 case and form part of the Rules of the National Assembly.

The procedures designed by the rules required that an MP place a motion before parliament containing a “clearly formulated and substantiated charge on the grounds specified in Section 89, which must prima facie show that the president” can be impeached for any of the grounds in the constitution. Another requirement is that all evidence relied on in the motion must be supplied in advance (Rule 129A).

At this point, you have to ask how the impeachment motion for Ramaphosa got as far as it did because the evidence of alleged misconduct that reached the Ngcobo enquiry was hearsay. Why did the speaker not refer the allegations back to the proposer to demand substantiation? How is it that Ramaphosa challenged the findings on the basis that you cannot have a prima facie case based on hearsay, when the speaker let this past?

Four more stages follow the acceptance of the motion by the speaker: an independent panel conducts a preliminary enquiry (rules 129D–H), parliamentary debate on whether to accept the report of that enquiry, followed by an impeachment committee that operates in much the same way as any parliamentary committee. The final stage, if it got that far, would be a parliamentary impeachment vote.

Once the preliminaries were flawed, the Ngcobo enquiry had no basis on which to make a more robust prima facie determination as the preliminary enquiry’s rules do not give it powers of subpoena or cross-examination. It may afford MPs the opportunity to make submissions but it cannot take oral evidence (Rule 129G).

If parliament had accepted the preliminary enquiry’s report, the impeachment committee would have operated with all the powers of any parliamentary committee and has to operate in a procedurally fair manner (Rule 129M). It is only at this stage that proper rules of evidence could apply.

No matter what evidence is unearthed, should the process reach its conclusion, a two-thirds vote counted over all members, not just those present, is still needed to remove a president. If the evidence is overwhelmingly negative, yet MPs do not vote to remove a president, the only remaining remedy is the ballot box. This is as it should be as to pass the prerogative to remove a president to courts is a violation of separation of powers.

Separation of powers in general means that the courts can only interfere with the function of the legislature when the legislature acts unlawfully. The 2017 EFF case that established a requirement for a Section 89 process is an example. A requirement in the constitution to act in a certain way presupposes that there is a lawful process consistent with constitutional principles to carry out that act.

So are parliamentary rules constitutional?

The odd part of the rules is the preliminary enquiry. Since the motion is supposed to be put on the basis of prima facie evidence, why is another process necessary before parliament can appoint its own impeachment committee? Since this preliminary enquiry has very limited powers, if the initial evidence is not sufficient to make a prima facie case, what is it supposed to do?

More seriously, electing and removing a president is the sole prerogative of parliament. Why should an outside body become involved at all? The final decision is parliament’s and parliament’s alone. Why not simply appoint the parliamentary impeachment committee, if the speaker is satisfied that prima facie evidence has been presented? The speaker is competent to seek legal advice on that point and should a member be concerned that their attempt at placing an impeachment motion before parliament is incorrectly thwarted, they have recourse to the courts.

In the Phala Phala matter, the preliminary enquiry has simply allowed Ramaphosa to string the matter out then attempt to get the concourt to reject the findings after parliament has voted to do so. Very little has been done to get to the bottom of the allegations and the preliminary enquiry, in terms of parliament’s rules, did not have the power to do so.

The question I am left with is why no one has challenged the parliamentary rules on Section 89 in the concourt.

The requirement to move a motion based on prima facie evidence is reasonable, as trying to impeach a president without such a requirement would lead to frivolous impeachment motions. The preliminary panel does not serve an obvious purpose once that hurdle is crossed. It puts a decision that is properly parliament’s in other hands and for that reason is of doubtful constitutional validity — even if parliament retains the prerogative to reject the report.

The simplest implementation of Section 89 would be to require a substantive motion backed by prima facie evidence of the constitutional grounds for impeachment. The speaker, acting with legal advice, should be compelled to constitute an impeachment committee if the evidence is sufficient (which it cannot be if it is not prima facie evidence) to establish a case to answer. 

Any MP who disagrees with a refusal to constitute an impeachment committee will still have the right to take the matter to court. Once an impeachment committee is established, it should have the powers to call and cross-examine witnesses, take written testimony and, if necessary, protect witnesses and whistleblowers, given the power of the presidency.

The process Ramaphosa took to the Concourt is flawed. It places an unnecessary step in the hands of an external body in a matter that is the sole prerogative of parliament. That extra step has no purpose other than delay and obfuscation. Overturning the report is not the remedy that should have been before the Concourt: fixing the process is.

Philip Machanick is an emeritus associate professor of Computer Science at Rhodes University.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.