Parliament’s rules on the removal of a president will be tested for the first time as the institution embarks on a process to ascertain whether a motion to impeach President Cyril Ramaphosa passes muster.

Parliament announced on Friday that the National Assembly speaker has referred a proposed Section 89 motion by the African Transformation Movement’s Vuyo Zungula to a yet-to-be convened independent panel of experts to assess whether sufficient evidence exists to show Ramaphosa committed any of the violations specified in the motion.

The new rules that give effect to the Section 89 removal of the president were adopted in November 2018 after the Constitutional Court ruled in 2017 that the National Assembly must put in place procedures to give effect to that section of the constitution.

The section in the constitution 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 and an inability to perform the functions of office.

Previously, such motions went to the house for debate and were treated no differently to the motion of no confidence provided for in Section 102 of the constitution.

“In that sense it is significant because what it does, irrespective of what the vote might be at the tail-end, is to create an opportunity to hold the president accountable,” said political analyst Lukhona Mnguni.

“This is a new development in the legislated accountability framework in SA and I think it is something to write home about because suddenly we have a robust framework on giving effect to Section 89.

“If it is seen all the way through to an investigation and tabling of a report for debate in the house, it will be a good test to see whether the behaviour of parliament has changed in how it handles matters involving very senior people in government, and in particular the behaviour of ANC MPs in handling something like this.

“This is a significant moment or test for parliament on whether it is willing to step up,” said Mnguni.

He said the fact that the motion was put to a test, met the criteria and was being referred to an independent panel, unlike in the past when sometimes decisions were circumvented because politically the motion was undesirable, was also a significant shift.

The independent panel, once appointed, will conduct a preliminary assessment of the motion within 30 days and will have to advise National Assembly Speaker Nosiviwe Mapisa-Nqakula whether sufficient evidence exists to show Ramaphosa committed any of the violations specified in the ATM motion and whether a multiparty committee must conduct an inquiry.

Shortly after former correctional services boss Arthur Fraser opened a criminal case against Ramaphosa about a robbery at the president’s Phala Phala farm in which a large sum of cash was allegedly stolen, the ATM submitted a motion to Mapisa-Nqakula requesting the house to initiate an inquiry into Ramaphosa’s removal from the office as provided for by Section 89 of the constitution.

The party charged he violated the constitution which prohibits members of the cabinet and deputy ministers from “undertaking any other paid work”, among other things. It also suggested Ramaphosa tried to cover up the robbery as he did not report it to the police, as required by law.

Mnguni said because Ramaphosa has been reluctant to account on the issue, he has created a sense in the public that there might be more to the matter than meets the eye. He said it is going to be interesting to see Ramaphosa’s attitude towards such a parliamentary inquiry.

“Will he be in a position we saw with public protector Busisiwe Mkhwebane and her inquiry, wanting to litigate and trying to stop the inquiry from taking place, or will he comply and take this matter seriously?”

According to Mnguni, the areas of grievance raised by the ATM were serious, and some were issues that concerned people in the ANC, including his admission to the ANC Limpopo conference that he trades in animals.

“It does open him up to that first point they (the ATM) raised, getting remuneration outside of the state while a member of cabinet.”

The nature of what may be before the public protector, the Hawks and the Independent Police Investigative Directorate’s investigation of the conduct of police personnel will leave parliament with little room to manoeuvre, so it will have to take its work very seriously, said Mnguni.

He said while there are no rulings against Ramaphosa and there are multiple investigations, it is important for parliament to do its oversight work on the president.

“Parliament must investigate, test the evidence before it and decide what that means for them,” he said.

The Council for the Advancement of the South African Constitution’s  executive secretary Lawson Naidoo agreed it was important there is a mechanism to deal with the kind of motion the ATM tabled against Ramaphosa.

“For those motions against (former president Jacob) Zuma, we didn’t have the processes in place, and therefore parliament was stymied from doing anything about them whereas now the speaker has done the correct thing.

“If there is a proper substantive motion that ticks all the boxes, she is required to refer it to an independent panel,” Naidoo said.

Unlike with the Mkhwebane process, where a number of court judgments were submitted as part of evidence against her, there has been no outcome against Ramaphosa.

Naidoo said all that is going to be placed before the independent panel is what is in the public domain and from the Fraser charges and affidavit, which are all untested.

He said while it would have been better for the ATM or another party that wanted to bring such a motion against Ramaphosa to wait until there was stronger body of evidence, these processes are ultimately political and not legal.

“If it gets through the first hurdle with the independent panel saying there is a prima facie case, then of course parliament would hear more evidence and can come to a decision regardless of whether the courts have ruled on the matter,” said Naidoo.

According to the rules, the panel must consist of three fit and proper, competent, experienced and respected South African citizens who collectively possess the necessary legal and other competencies and experience to perform the preliminary assessment of the motion. It may include a judge.

Mapisa-Nqakula has requested political parties represented in the National Assembly to nominate candidates to serve on the panel by September 1.

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