Understanding the impeachment process — why it’s too early to demand Ramaphosa’s resignation

After the recent judgment of the Constitutional Court concerning the Phala Phala matter, there are once again calls in the media for President Cyril Ramaphosa to resign from office.

In December 2022, immediately after the independent parliamentary panel investigating the matter (the panel) concluded that there was a prima facie case against President Ramaphosa, I wrote on the matter, which was circulated widely and became the subject of discussion in the media and elsewhere.

In my comment, I made the point that there seemed to be some confusion about the nature of the allegations against Ramaphosa and the implications of the findings of the panel, and that calls for his resignation were premature.

It seems that now there may be similar confusion regarding the judgment of the Constitutional Court on Friday, 8 May. It may be helpful to make a few points to clarify its scope and implications.

Section 89 of the Constitution provides that the President may only be removed from office by a vote of two-thirds of the National Assembly on the grounds of: (i) a serious violation of the Constitution or the law; or (ii) serious misconduct. The wrongdoing must attain the level of “high crimes and misdemeanours”.

The charges

The allegations against Ramaphosa that form the subject matter of the Constitutional Court case were not filed with the South African Police Service (SAPS) or any other law enforcement agency. The charges are contained in a parliamentary notice of motion tabled by the African Transformation Movement (ATM), a small political party.

The ATM notice of motion does not charge Ramaphosa with corruption, money laundering, exchange control violations, tax evasion or the like. The charges in the ATM notice of motion in the National Assembly are essentially that Ramaphosa:

• Undertook paid work as a farmer while holding the office of President;
• Failed to report alleged corruption (the theft of the money from his private residence) to the SAPS;
• Was conflicted by using General Wally Rhoode and the Presidential Protection Unit for personal purposes by getting them to investigate an issue related to his private business; and
• Misconducted himself by unlawfully instructing Rhoode to investigate the theft rather than reporting it to the SAPS.

As mentioned, the panel found that there is prima facie evidence supporting the four allegations made by the ATM and that the alleged misconduct, if proven, would be “serious”. There has been some debate subsequently about whether these charges are of such an order of seriousness to constitute “high crimes and misdemeanours” justifying the extreme action of impeachment.

Under Rule 129 of the Rules of the National Assembly (the NA rules) that applied before the Constitutional Court judgment, an impeachment motion followed five stages.

1. It had to be screened for compliance by the Speaker;
2. The allegations in the impeachment motion had to be assessed for sufficiency and merit by an independent panel (as happened in this case in 2022);
3. The report of the independent panel then had to be considered by the National Assembly to determine whether to refer the matter to an impeachment committee of Parliament;
4. If referred, the impeachment committee would conduct an inquiry; and
5. The report of the impeachment committee would then be referred to the National Assembly as a whole for it to be voted upon.

What happened in this case is that on 13 December 2022, the report of the panel (produced at the end of the second stage of the process) came before the National Assembly (the third stage) for consideration of whether to take the matter forward and refer it to the impeachment committee. The National Assembly voted by a majority of 214 to 149 against proceeding with the impeachment inquiry (the NA resolution). As a result, the matter was not referred to the impeachment committee. The fourth and fifth stages of the five-stage impeachment procedure were not engaged.

In taking the NA resolution, the National Assembly acted entirely in accordance with the then applicable NA rules, which required a majority resolution for a referral to the Impeachment Committee. On the face of it, the National Assembly acted lawfully.

However, the ATM and the EFF contended that the NA rules, the five-stage impeachment procedure, and hence the NA resolution in terms of it, were unconstitutional. This is what the case before the Constitutional Court was about.

A complex judgment

The judgment of the Constitutional Court is complex and lengthy, and deals mainly with important procedural and jurisdictional matters.

On the cardinal issues of the constitutionality of the five-stage procedure and the NA resolution, the Constitutional Court agreed with the ATM and the EFF. It held that NA Rule 129 inappropriately permitted the National Assembly to terminate the impeachment process at a preliminary stage, before a full inquiry could be conducted into whether an impeachment ground exists. This, the Constitutional Court considered, had the effect of foreclosing full engagement with the merits of an impeachment motion, thereby stifling informed debate and undermining the values of accountability and transparency that must inform the National Assembly’s processes.

The Constitutional Court accordingly deployed its jurisdiction to grant just and equitable relief in the face of constitutional inconsistency by amending NA Rule 129. It essentially amended the five-stage process to provide that once the independent panel concludes that sufficient evidence of serious misconduct by the President exists, the matter must be referred to an impeachment committee of the National Assembly (without any intervening process involving the National Assembly as a whole); or where the independent panel concludes that there is not sufficient evidence of misconduct for the matter to be referred to the National Assembly as a whole to decide whether to uphold the independent panel’s report or nonetheless refer it to an impeachment committee.

Given that the NA resolution of 13 December 2022 was taken pursuant to the NA rules found to be unconstitutional, it followed logically, as is routinely the case with decisions taken in accordance with procedures subsequently found to be constitutionally defective, that it could not stand, and the matter was referred back to the National Assembly for further consideration and decision by an impeachment committee.

No finding of misconduct

That is all that has been decided by the Constitutional Court.

The Constitutional Court made no finding of any kind regarding the alleged conduct of Ramaphosa. It offered no indication of whether it agreed with the panel that there was prima facie evidence of misconduct. Nor did it find that the alleged conduct, if eventually proven in accordance with the required evidentiary standard, would be serious, or of a kind justifying impeachment.

Nor did the Constitutional Court make any suggestion that Ramaphosa had engineered some parliamentary process that shielded him from parliamentary scrutiny. Ramaphosa played no part at all in the design or drafting of the NA rules applicable in impeachment proceedings. The villains of the piece here (if that) are the staff and members of the National Assembly who (some years before the Phala Phala matter occurred) drafted and adopted the NA rules governing impeachment processes before the National Assembly.

As for the trial into whether Ramaphosa has inappropriately carried on working as a farmer or was conflicted or misconducted himself by improperly instructing the wrong police officer to investigate the theft at his farm (which is what the case brought against him by the ATM is about), that now, in terms of the ruling of the Constitutional Court, is a matter for the impeachment committee, a ruling with which the President has stated publicly he will readily abide.

In the premises, it is still premature to call on the President to resign while it remains reasonably possible that the envisaged parliamentary processes and further litigation may find that there is insufficient evidence to establish high crimes and misdemeanours.

As I stated in 2022, insofar as many are making claims of corruption, money laundering, exchange controls and tax violations, and unspecified constitutional delinquency, no such case has been brought against the President by the ATM, and he has not had a proper forensic opportunity to put up a defence in other fora in regard to any such allegations. To seek to condemn him on this basis is unfair, especially in light of the somewhat dubious provenance of some of the allegations being made against him. DM