National Assembly Speaker Nosiviwe Mapisa-Nqakula last week announced that a motion by the African Transformation Movement (ATM) calling for the impeachment of President Cyril Ramaphosa over the Phala Phala scandal will be referred to an independent panel to assess whether the available evidence supports a finding that the President is guilty of a serious violation of the Constitution or the law, or of serious misconduct.

Because the rules governing the impeachment of the president were changed in 2018, it is no longer possible for governing party MPs in the National Assembly to treat such impeachment motions as a purely political matter settled by a vote in the chamber, without considering whether, as a matter of fact, the president was guilty of a serious violation of the Constitution or the law, or of serious misconduct. (These are some of the grounds listed in section 89 of the Constitution as warranting the impeachment of a president).

The rules were amended to comply with the 2017 Constitutional Court judgment in Economic Freedom Fighters and Others v Speaker of the National Assembly (in a majority judgment written by Justice Chris Jafta), which held that the National Assembly could only proceed to vote on the impeachment of the president in terms of section 89 of the Constitution once it had determined that one of the listed grounds required for lawful impeachment had been established.

Notably, both Chief Justice Mogoeng Mogoeng and Deputy Chief Justice (as he was then) Raymond Zondo, penned dissenting judgments in the case, with Mogoeng accusing the majority of a “textbook case of judicial overreach”. In that case, the majority held that:

“For the impeachment process to commence, the Assembly must have determined that one of the listed grounds exists. This is so because those grounds constitute conditions for the president’s removal. A removal of the president where none of those grounds is established would not be a removal contemplated in section 89(1).  Equally, a process for removal of the president where none of those grounds exists would amount to a process not authorised by the section.”

Three stages of impeachment

The amended rules — which closely resemble the rules for the impeachment of the Public Protector and the heads of other Chapter 9 bodies — now divide the impeachment process into three stages, with the first two stages taking on the character of a quasi-legal process, while the third stage remains a purely political process.

In the first stage, the Speaker must (she has no discretion in this matter) refer an impeachment motion that complies with the technical requirements to an independent panel of three experts who “collectively possess the necessary legal competence and experience”. This panel is required to conduct a preliminary inquiry and must “make a recommendation to the Speaker within 30 days, whether sufficient evidence exists to show that the president committed a serious violation of the Constitution or law; or committed serious misconduct”.

It is important to note that in terms of National Assembly rule 129G(1)(c)(iv), the panel may not “hold an oral hearing and must limit its enquiry to the relevant written and recorded information placed before it by members in terms” of the rules.

In the case of Public Protector Busisiwe Mkhwebane, the work of the independent panel was made much easier by the fact that various courts — including the Constitutional Court — found that the Public Protector had acted in a dishonest manner and that she was incompetent.

Phala Phala matter

In the case relating to the Phala Phala matter, no such court rulings exist, which means much will depend on what evidence is placed before the panel, how credible the evidence is judged to be, and how credible the President’s responses to the allegations are.

What is not in dispute is that the new rules will force the President to respond to the allegations — something that would not have been required before the amendment of the rules. 

If the President responds in the same evasive manner as he has done up to now, or if his legal team rely on technical arguments to avoid having to provide detailed explanations of what happened (something former president Jacob Zuma and his lawyers have done masterfully over the past 14 years), it may still ward off impeachment, but at a political cost.

The inquiry by the independent panel — even at this early stage — is therefore likely to enhance presidential accountability by focusing on the evidence to determine whether there was wrongdoing on the part of the President, and if so, whether it was serious enough to warrant impeachment.

I suspect this was something the majority of the Constitutional Court foresaw when it ordered the National Assembly to amend the rules to provide for an assessment of the evidence.

The recommendations of the independent panel are not binding on the National Assembly, which (in this second stage of the process) must consider the panel’s recommendations when deciding whether to proceed with the appointment of a section 89 impeachment committee, which will then have to conduct an impeachment inquiry (of the kind currently considering the fate of Busisiwe Mkhwebane).

Political cost

If the independent panel finds that sufficient evidence does not exist to show that the President committed a serious violation of the Constitution or law; or that he committed serious misconduct, this will surely be the end of the matter. Even if it finds the opposite, the National Assembly could still decide not to proceed with an impeachment hearing, although the political cost for shielding the President in this way may be high.

Of course, it is likely that ANC MPs may close ranks to protect the President by latching on to the fact that there have, as yet, been no adverse court findings against him in this matter. But if the independent panel finds that there is sufficient evidence to show that the President committed a serious violation of the Constitution or law; or committed serious misconduct, and the National Assembly decides not to proceed with an impeachment hearing, it may raise questions about the rationality of the decision and may lead to court action to have the decision reviewed on the basis that it was irrational. (Whether it is wise for courts to get involved in such matters, is a separate issue.)

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For similar reasons, it would be unwise for the impeachment committee in the Public Protector matter to ignore the various adverse court findings made against the Public Protector. In terms of the principle of legality, it would, at the very least, be irrational for the committee to ignore the various court findings against her.

As the North Gauteng High Court pointed out in Institute for Accountability v Public Protector, the adverse court findings against the Public Protector “cannot be equated with the opinions of ordinary individuals and cannot be treated as such”, and these findings are “binding on all persons and those organs of state to which they apply”. Ignoring these findings may render a decision that the Public Protector did not commit misconduct, and is not incompetent, vulnerable to review.

National Assembly

In any event, in both cases, a decision of the impeachment committee to recommend the incumbent’s removal from office will trigger a vote on the motion in the National Assembly. Conversely, in the absence of such a recommendation, the National Assembly will not be legally entitled to remove the incumbent from office. 

The inquiry during the first two stages is supposed to be narrowly focused on the facts and the evidence (something the Public Protector and her legal team does not seem keen on).

But once the motion is placed before the National Assembly, individual MPs will make a purely political decision — probably “guided” by an instruction from the leaders of their party to either support or oppose the motion. This means that even when grounds for removal are found to be present, two-thirds majority support for such a motion in the National Assembly — which is required for removal — may not be achieved if some ANC MPs decide not to support the motion.

This may partly explain the political antics of Busisiwe Mkhwebane’s legal team before the impeachment committee considering her case. The aim may well be to try to influence ANC MPs who are sympathetic to the (even more) corrupt faction within the ANC to vote against impeachment, and not to persuade the members of the committee that there are no grounds to justify the removal of the Public Protector, the latter in any event being a close to hopeless task given the adverse court findings made against her. 

This is also why any decision by the Speaker on whether to allow a secret vote on the impeachment of the Public Protector may be fiercely contested.

As far as the motion for the impeachment of President Ramaphosa is concerned, it would be naïve to think this will lead to his removal from office. For as long as he remains president of the ANC, the majority of ANC MPs will not support such a motion.

However, the appointment of an independent panel to assess whether sufficient evidence exists to show that the President committed a serious violation of the Constitution or law; or committed “serious misconduct”, is a significant development as it may place considerable pressure on the President to explain himself — and may help to shine some light on this murky affair. DM