Check the rules: The subcommittee on Parliament’s rules is hoping to finalise procedures for the impeachment of a president after the Constitutional Court found that any impeachment process, which President Jacob Zuma might face, had to be preceded by a factual inquiry to determine whether violations had been committed. Picture: SUPPLIED
Check the rules: The subcommittee on Parliament’s rules is hoping to finalise procedures for the impeachment of a president after the Constitutional Court found that any impeachment process, which President Jacob Zuma might face, had to be preceded by a factual inquiry to determine whether violations had been committed. Picture: SUPPLIED

Parties across the political spectrum are concerned about the danger of "majoritarianism" subverting any future attempt to impeach the president.

The concern was expressed by members of the subcommittee of Parliament’s rules committee, which met on Wednesday to formulate procedures for an impeachment process.

It was prodded into action by last month’s Constitutional Court ruling that it do this without delay.

The subcommittee hopes to finalise by the end of March parliamentary rules for impeachment of a president, including their adoption by the National Assembly.

The judgment was in the case brought by the Economic Freedom Fighters (EFF), the United Democratic Movement and the Congress of the People.

They asked the court to find that the National Assembly had failed to put in place mechanisms and processes to hold President Jacob Zuma to account for failing to implement the remedial action ordered by former public protector Thuli Madonsela in relation to the misuse of state resources during the upgrade of Zuma’s Nkandla residence.

The applicants also sought an order compelling the National Assembly to convene a committee to investigate whether the president was guilty of any impeachable conduct under section 89 of the Constitution.

In a majority judgment, the court ruled that a prerequisite for the removal of the president was the holding of a preliminary factual inquiry into whether there had been a serious violation of the Constitution or the law, serious misconduct or the inability to perform the functions of his office.

The court also found that parliamentary ad hoc committees were not suited for this purpose. The rules subcommittee, chaired by Richard Mdakane, decided at the end of its deliberations on Wednesday to distribute draft proposals to the parties for consideration and to meet again later. One of the main issues discussed was how to prevent the factual inquiry being subverted by majoritarianism, with even the ANC MP Mnyamezeli Booi emphasising that mechanisms needed to be put in place to prevent this.

The majority party could not be the sole determinant of what happened to the president if there were widespread dissatisfaction in society about the way in which he was conducting himself, Booi said.

In the past, the ruling ANC has used its majority in the National Assembly and ad hoc committees to protect Zuma from attempts by opposition parties to unseat him.

EFF MP Mbuyiseni Ndlozi recommended that a panel of three to five judges be on permanent standby as a panel of impeachment to conduct an inquiry when necessary once a motion including prima facie evidence of wrongdoing by the president had been submitted.

However, DA chief whip John Steenhuisen questioned whether Parliament could delegate its responsibility to hold the executive to account elsewhere. Inkatha Freedom Party MP Hlengwa proposed that MPs have a role in an impeachment inquiry by judges.

In terms of Ndlozi’s proposal, the panel of judges would undertake preliminary fact finding and submit its report to a parliamentary committee, which would decide whether a breach of the Constitution was serious or not. If serious, a motion for impeachment would be tabled for debate and voting in the National Assembly.

Also of concern to MPs was how to prevent the speaker of the National Assembly from scuppering any attempt at impeachment by refusing to institute a preliminary fact-finding inquiry once she received a motion to impeach.

Booi stressed that the speaker should not have the power to decide whether a motion to impeach was processed or not.

One way to prevent this, Steenhuisen suggested, was by defining in the rules what constituted a "serious" violation of the Constitution and "serious misconduct".

However, Council for the Advancement of the South African Constitution executive secretary Lawson Naidoo, who was present at the meeting, did not think it wise to incorporate a definition of seriousness in the rules as it might not cover all future circumstances.

Parliamentary legal adviser Frank Jenkins said it was the role of Parliament, not the courts, to decide what constituted a serious breach of the Constitution. This would include gross negligence and intent.

ensorl@businesslive.co.za