Parliament adopts new rules to remove President

Panel of three independent legal experts to play key role in process

Parliament adopts new rules to remove a president

30 August 2018

Parliament's Rules Committee has adopted rules for the removal of a president that will require a panel of legal experts to assess whether there is sufficient evidence to remove them.

"Parliament’s National Assembly Rules Committee has unanimously agreed on Rules to regulate Section 89 of the Constitution: Removal of President and has recommended that the National Assembly adopt them," reads a statement from Parliamentary spokesperson Moloto Mothapo.

The process of removing a president through Section 89 is often referred to as impeachment, even though the word isn't used in the South African Constitution. It is also not to be confused with a motion of no confidence.

It provides for the National Assembly to remove a president from office on the grounds of a serious violation of the Constitution or the law, serious misconduct, or an inability to perform the functions of the office.

In the first two cases, the president may not receive any benefits of that office, and may not serve in any public office.

The new procedures which the National Assembly Rules Committee adopted on Thursday provide for any member of the National Assembly to initiate, through a substantive motion, a process to remove a president in terms of Section 89.

Once such a motion is submitted, the Speaker must refer it, and any supporting evidence, to a panel of three independent legal experts.

The panel, which the Speaker appoints after consulting political parties represented in the Assembly, must assess if there is sufficient evidence for Parliament to proceed with a Section 89 inquiry. The panel must function impartially and without fear, favour or prejudice.

The panel must conclude its deliberations within 30 days and report to the National Assembly. The House must then decide whether to proceed with an inquiry.

If it decides to proceed with an inquiry, the matter must be referred to a specially constituted Impeachment Committee. This Impeachment Committee will investigate, establish the veracity and, where required, the seriousness of the charges against a president and make a recommendation to the National Assembly.

The Committee’s report must include all views expressed in the committee.

Once the Impeachment Committee has reported, the House must schedule the report for debate and a decision in a House sitting with due urgency.

If the report recommends that a president be removed from office, the question must be put to a vote. A president is removed from office if two-thirds of members of the Assembly support the recommendation.

During the fifth Parliament’s earlier review of the National Assembly Rules, the Rules Committee discussed procedures to regulate Section 89 removal of a president, but could not finalise them.

Parliament prioritised finalisation of the procedures following the December 29, 2017, Constitutional Court order that it do so without delay.

This was against the backdrop of several failed attempts to remove then-president Jacob Zuma through motions of no confidence, and allegations about his involvement in state capture piling up.

The application to the Constitutional Court was brought – by the EFF, UDM and Cope – against the Speaker of the National Assembly, seeking a declaratory order that the National Assembly's inaction in the face of Zuma's violations of the Constitution was unconstitutional, and an order compelling the House to carry out its constitutional functions and scrutinise Zuma's conduct.

This was in relation to a previous ruling by the court that found Zuma had failed to uphold the Constitution with regards to the Public Protector’s remedial actions for the upgrades to his Nkandla homestead.