On 30 November 2022, former Chief Justice Sandile Ngcobo delivered the Section 89 Independent Panel Report (the "Report") into the 2020 burglary at President Cyril Ramaphosa's farm, Phala Phala, to the National Assembly Speaker.
The Report has left many in South Africa wondering about the possibility of President Cyril Ramaphosa being impeached.
Impeachment is a term generally used to define the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. In South Africa, the power of impeachment is a tool for holding the president accountable for violations of law and abuse of power.
The Constitution gives the National Assembly the authority to remove and impeach the president from office for a serious violation of the Constitution or the law, serious misconduct or the inability to perform the functions of the office. However, the National Assembly's powers are limited. They may only be exercised where the president has been shown to have committed any of the grounds of impeachment listed in section 89 of the Constitution.
The regulatory scheme for the removal of the president from office is set out below:
- any member of the National Assembly may submit a motion to the Speaker proposing an enquiry in terms of section 89 of the Constitution for the removal of the president;
- if the Speaker is satisfied with the motion, she must immediately refer it to the Panel, which is established;
- the Speaker is also required to inform the president and the National Assembly that she has referred the motion to the Panel;
- the Panel is required to consider any preliminary enquiry relating to the motion and thereafter makes a recommendation whether sufficient evidence exists to show that the president committed any acts which constitutes a ground for removal from office;
- the Panel must provide the president with copies of all information made available to it and provide the president with a reasonable opportunity to respond in writing to all relevant allegations;
- the Panel may not hold oral hearings;
- the Panel must limit its enquiry to the relevant written and recorded information placed before it by members of the National Assembly; and
- the Panel is also bound to consider the information placed before it by the president.
Once the Panel has enquired into the matter it must make a recommendation to the Speaker. The recommendation must state, inter alia, whether sufficient evidence exists to show that the president committed a serious violation of the Constitution or the law or serious misconduct.
Once the Panel's Report is received by the Speaker, she must schedule the report for consideration by the National Assembly. The National Assembly is not bound by the recommendation.
If, after the consideration of the Panel's Report, the National Assembly resolves to proceed with the section 89 Enquiry, the matter must be referred to an Impeachment Committee.
The Speaker determines the number of members that make up the Impeachment Committee, but all parties represented in the National Assembly must be represented on the Impeachment Committee.
The Impeachment Committee enjoys the same powers as any other Parliamentary Committee, which includes the power to subpoena any person to appear before it to give evidence or to produce documents. In addition, the Impeachment Committee is tasked with establishing the veracity and, where required, the seriousness of the charges and thereafter report to the National Assembly.
The Impeachment Committee's report must set out the findings and recommendations, which must be supported by the reasons for the recommendations. Thereafter, the report of the Impeachment Committee and the report of the Panel must be scheduled for consideration and debate by the National Assembly.
If the report recommends the removal of the president, the decision to impeach should be put to a vote by the National Assembly. If the removal is supported by two-thirds or more of the National Assembly, the president is removed from office immediately.
The National Assembly's Rules for the Removal from Office define a "serious violation of the Constitution or the law" to mean behaviour by the president amounting to an intentional and malicious violation of the Constitution or the law performed in bad faith.
Serious misconduct is defined to mean improper behaviour performed by the president in bad faith and not every violation of the Constitution or the law or misconduct constitutes a ground for impeachment and removal from office.
In summary, removal from office involves a three-stage enquiry:
- first, a preliminary enquiry by the Panel;
- second, a full-scale enquiry by the Impeachment Committee;
- third, a debate and vote on the Motion by the National Assembly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.