President Cyril Ramaphosa faces possible impeachment in Parliament for the illegal hiding of thousands of US dollars on his Phala Phala farm in 2020. This is not the first time there has been a threat to oust a president in post-democratic South Africa. His scandal-prone predecessor, Jacob Zuma, survived an impeachment vote in 2017 for the illegal use of public money to renovate his private residence. There is, however, a difference in the process that is followed this time. It is the first since Parliament adopted rules to guide the impeachment process for a president in 2018, following a Constitutional Court. judgment.
First steps
This is the first time that a process of filing a motion and establishing an independent panel has been used. That alone makes it a very significant moment. How the panel interprets and then applies “the law” will set an important precedent. You may be subject to judicial review, especially if the panel determines there is insufficient evidence for the impeachment process to proceed to a full parliamentary inquiry.
The process is triggered when a party with parliamentary representation presents a motion in the National Assembly requesting impeachment.
Read more at Daily Maverick: Ramaphosa Day of Truth beckons as independent panel prepares to deliver Phala Phala report
In this case, this was done by a small group with only two seatsthe African Transformation Movement (ATM), in terms of article 89 of the Constitution.
Section 89 is one of two parliamentary routes by which a sitting president (or his government) can be removed from office. The other is in terms of Article 102 of the Constitution, which is a vote of no confidence, a purely political matter, and therefore subjective. Several motions of no confidence of this type were filed against Jacob Zuma, but he survived them all, since the ruling African National Congress whip held the line.
Section 89 contains three specific grounds for impeachment (although the section does not use the word). The National Assembly may remove the president from office (with the support of at least two-thirds of its members), only when the president:
- Has committed a serious violation of the Constitution or the law;
- He has committed a serious mistake; either
- He suffers from an inability to perform the duties of the position.
The fact that this is a parliamentary process, triggered by a particular section 89 motion, and which requires an objective test to be met, is of great importance because it requires an evidence-based determination to be made in relation to one or the other. of the three reasons.
the new rules now envisions a two-stage process to establish whether such evidence exists to justify removing the president from office.
The first step is that after the motion has been tabled in parliament, the National Assembly must set up a panel to conduct a “preliminary inquiry relating to a motion proposing a section 89 inquiry”.
The underlying purpose of the panel is to prevent spurious or vexatious impeachment attempts from taking place without any proper evidentiary basis.
Accordingly, the panel must be composed of “three fit and proper, competent, experienced and respected South Africans, who may include a judge, and who collectively possess the requisite legal competence and experience.”
Parties represented in Parliament can nominate people to serve on the panel, after which the President of the National Assembly makes the appointment. In this case, the Speaker has appointed former Chief Justice Sandile Ngcobo as president.
The motion filed by the ATM seeking the removal of Ramaphosa, as top law reporter Franny Rabkin has pointed out, provides streetcar lines within which the panel must remain in the performance of its mandate. This limits the evidence and claims that the panel is authorized to consider.
Movement is relatively limited in your target area. It limits itself to the details of the mysterious money robbery at Ramaphosa’s Phala Phala farm and his immediate response to the robbery.
That’s why, ngcobo he is likely to be fastidious about limiting the panel’s deliberations. Any evidence or argument related to an issue not rooted in the original motion is likely to be dismissed.
The primary legal responsibility of the panel is not to determine whether there is a “prima facie” case, which means that “at first sight” there would appear to be a case to answer. Rather, it is whether there is “sufficient evidence” of one or other of the three grounds for removal from office set out in section 89.
In this case, the third cause, disability, does not occur. Instead, the question for the panel is whether there is sufficient evidence of gross misconduct or a serious violation of the law.
The word “serious” here is very significant. If Ramaphosa has broken the law or behaved inappropriately or recklessly in his response to the theft, that will not be enough to pass the test, unless it is “serious.”
a high bar
It seems to me that the “sufficient evidence” test is subtly but qualitatively higher than “prima facie”, because the panel must consider the evidence presented by the ATM and then the response of the president, and come to a conclusion.
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In turn, this means that the chair of the panel and his two colleagues face a rather difficult task because the rules place severe limits on the scope of their investigation.
What the rules say is “in considering the matter” the panel may, in its sole discretion, provide any member with the opportunity to submit relevant written or recorded information to you within a specified period of time.
It is clear that the panel has done this, and that the ATM has, at least, responded by placing what they say is More evidence before the board. But unless it is relevant to the motion and falls within the limits established by it, the panel will not, and should, take into account the other outside evidence.
Having sought evidence from members of Parliament, this being a parliamentary process, the panel has also been required to give the president an opportunity to respond. This may explain the delay in the panel completing its work and the need for a two-week extension to November 30.
After that date, Parliament has postponed increase for the year so that the panel report can be discussed in early December.
The report is required to formulate conclusions and substantiate its conclusion, but it can only do so on the basis of the written evidence presented before it.
Transcendence
Given the threshold test that the rules establish for the performance of your mandate, the panel will most likely find that there is insufficient evidence.
Even then, the words the panel uses will weigh heavily in the balance politically. If nothing else, much more information will be in the public domain about the curious events of that February 2020 night at the president’s estate, and how he handled the matter.
It could have huge implications, not just for Ramaphosa’s immediate political future and long-term legacy, but also for constitutional accountability in South Africa. MD
richard calland is Associate Professor of Public Law at the University of Cape Town.
This article is republished from The conversation under a Creative Commons license. Read the Original article.
