The rules committee of the NA faces an extremely difficult task to determine exactly what types of conduct by the President would warrant impeachment. A related problem is that the construct of a reasonable person, often used in the law, is – of course – a fiction.
Late last year the Constitutional Court ordered the National Assembly (NA) to devise specific rules to deal with the impeachment of a sitting President. One of the tasks faced by the NA is to devise a set of criteria to determine what would constitute a serious violation of the Constitution or the law or serious misconduct. This is not an easy task, made more difficult by the fact that MPs will almost certainly draft these rules while asking themselves how the rules will impact on the possible impeachment of President Jacob Zuma. Below, I will try to develop some general criteria that might assist MPs as they struggle with this task.
As anyone who reads this column will know, section 89(1) of the South African Constitution allows (but does not require) the NA to remove the President from office through impeachment, but only by adopting a resolution with a supporting vote of at least two thirds of its members, and only on the grounds of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office.
Late last year the Constitutional Court held in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another that the power to remove the President from office is available to the NA only if one of the listed grounds is established. But because these grounds are open ended and rather vague, it was for the NA to decide what would constitute a serious violation of the Constitution or the law or serious misconduct and to write this into the rules.
“But the drafters could not have contemplated that members of the Assembly would individually have to determine what constitutes a serious violation of the law or the Constitution and conduct on the part of the President which, in the first place, amounts to misconduct and whether, in the second place, such conduct may be characterised as serious misconduct. If this were to be the position, then we would end up with divergent views on what is a serious violation of the Constitution or the law and what amounts to serious misconduct envisaged in the section. And since the determination of these matters falls within the exclusive jurisdiction of the Assembly, it and it alone is entitled to determine them. This means that there must be an institutional pre-determination of what a serious violation of the Constitution or the law is. The same must apply to serious misconduct and inability to perform the functions of the office.”
This is why the rules committee of the NA must now devise rules that would determine in much more detail what would constitute such a serious violation. Such guidelines must be written into the rules to ensure that MPs would not be required to decide “individually” what constitutes a serious violation, because if they were required to do so individually they are likely to make a purely political decision and would not engage with the facts of the case at all – something which the court said was required for legally valid impeachment.
To determine the scope and content of a constitutional provision one would normally start by establishing the purpose of the relevant provision. In this case, we would have to determine what purpose is served by the impeachment provision in the South African Constitution. John Hatchard, discussing impeachment in various African Constitutions in an article published in 2000 in the Journal of African Law, suggests that:
“[a]rguably the true basis for impeachment is that the actions of the incumbent (or a failure to act) undertaken in his/her official capacity have rendered that person unfit to exercise the office of president… [and thus] had a destructive impact upon confidence in public administration.”
This would narrow the scope of impeachment as it would exclude presidential conduct in his or her private capacity. For example, it would exclude cases where it comes to light that a president has assaulted his or her spouse or partner. Given the role played by the South African President as head of both the executive and as head of state, it may be argued that some private conduct of the President should also render him or her unfit to be president.
Perhaps of more use would be the description by Chief Justice Mogoeng Mogoeng of the role played by the South African President in our constitutional democracy in his judgment in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly.
“His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed. The promotion of national unity and reconciliation falls squarely on his shoulders. As does the maintenance of orderliness, peace, stability and devotion to the well-being of the Republic and all of its people. Whoever and whatever poses a threat to our sovereignty, peace and prosperity he must fight. To him is the executive authority of the entire Republic primarily entrusted… Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”
Based on this passage, one could argue that any actions (or failure to act) by the President that renders him incapable of fulfilling this role as set out by the Chief Justice might justify impeachment. If this is so, serious misconduct of a private nature that may indicate that the President is so compromised that he or she is incapable of serving as president may also justify impeachment.
But I would insert an important qualification here. Surely, private acts which might be considered immoral by some or might be viewed as showing bad character, should not be sufficient to allow for impeachment. If the President had an affair, or once smoked dagga, or did a line of cocaine, this might upset many people, but in my view, this would not make him incapable of serving as head of state and head of the executive.
This is because such actions are not harmful to others, do not in themselves suggest that the president would be deceitful and willing to lie when exercising his or her official duties, cheat, break the law, or flout the Constitution for personal or political gain. If a President assaults his partner, or is addicted to tik or heroin, or uses his position to coerce somebody into sex, the situation might be very different.
With these general and relatively abstract guidelines in mind, let me now try and become more specific by providing examples of breaches that I would not consider to be serious and breaches that I would consider to be serious.
Inevitably, a President will sometimes breach the law and/or the Constitution, will sometimes make unwise or even really foolish decisions, or will generally act (or fail to act) in ways that might upset many voters – especially voters of opposition parties.
For example, a President may act irrationally and thus unconstitutionally when appointing the National Director of Public Prosecutions (NDPP), or may fire his or her minister of finance thus upsetting ratings agencies leading to a drastic drop in the stock market, or may sign legislation which is later declared unconstitutional by the Constitutional Court. In my view, such actions would not constitute a serious violation of the Constitution or the law or serious misconduct. These actions might not be wise, but if voters do not like it, they can always punish the President and the party he or she belongs to by voting for another party at the next election.
But what if a President knowingly acts in contravention of section 96(2) of the Constitution? This section prohibits the President (and other Cabinet Ministers) from undertaking any other paid work; acting in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or using their position or any information entrusted to them, to enrich themselves or improperly benefit any other person. In other words, this section prohibits the President from abusing his position for personal gain.
A President may also act in a corrupt or fraudulent manner in breach of the law, say, by cheating on his or her taxes and smuggling large amounts of money out of the country, by bribing the head of the Electoral Commission to change the outcome of an election, or by providing privileged government information to a friend in exchange for money or favours for him or herself or his or her family.
To my mind this looks much closer to a serious violation of the Constitution and the law or serious misconduct contemplated in section 89(1). The reason is that these actions would suggest that the President cannot be trusted to fulfil his or her duties as president to the best of his or her ability. As past actions are a good indicator of future behaviour, such actions would suggest that the President is dishonest, deceitful, venal, disrespectful of the law and the office of the President.
To put it differently (and maybe this could be a tentative starting point to formulate some kind of rule on the matter), I am suggesting there would be a serious violation of the Constitution or the law, or serious misconduct, when the president has acted or refrained from acting in such a way that a reasonable person (one who is relatively well informed and not overly suspicious, a person with no party-political affiliation or loyalty), would believe that the President is unwilling and unable to fulfil the obligations of President in accordance with the Constitution and the law, and thus incapable of serving as President in the manner postulated by the Chief Justice in the Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly.
It must be clear from the above that the rules committee of the NA faces an extremely difficult task to determine exactly what types of conduct by the President would warrant impeachment. The problem is that the construct of the reasonable person postulated above (and often used in the law) is, of course, a fiction. Good judges (with their security of tenure, their legal training, their obligation to act impartially) often work with this fiction in a relatively efficient manner.
But I am not sure that MPs will be able to do so to the same degree. It is part of an MPs job description to be partisan, to vilify other parties and their leaders, and to laud their own party and its leaders. Nevertheless, if the rules committee complies with the Constitutional Court judgment and carefully drafts rules that provide detailed criteria to determine what would constitute impeachable conduct, it might help to shield sitting presidents against frivolous impeachment motions launched for no other reason than to score political points. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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