Ms Pemmy Majodina - ANC Member of Parliament
13 December 2022
Parliament has initiated an investigation into a sitting President based on information in the public domain. This is the first time, under the Rules that we have designed to remove a President, that Parliament is testing its Rules. Therefore, what we do today will set a precedent if there is to be any further application hereafter.
Of course, there is no innocence in this. There are deeply vested interests hidden behind claimed objective opinions. The party that designed this s89 application to the Speaker has its political existence and relevance in Parliament dependant on motions of no confidence in the President and calls for the President to step down.
At the outset, the ANC reaffirms what the Constitution’s spirit and intention provides for in terms of s89 and what the Rules of the NA, in particular, Rule 129 provide for.
Anything less than a legal and rules-bound approach to this matter merely makes us as lawmakers, self-serving, and that political interests opportunistically require a particular outcome even if legal interpretation and rules say otherwise.
The Rules in this case provide for and require a political decision to be made. How that is done and what the outcome is, are left to political parties. However, we cannot then be found at fault in the application the rule merely because we have a particular political objective we wish to achieve.
We have a preliminary report by an Independent Panel that has come up with a recommendation:
“In light of all the information placed before the Panel, we conclude that this information discloses, prima facie, that the President may have committed a serious violation.”
This recommending clause in the report sows the seeds of doubt for many who have gone through the report.
The ANC will not attack or criticise the Independent Panel. We understand that Rule 129 limits what it could have done.
The Panel confirmed both in the report and during the handover the limited scope of their mandate, as well as an inability to conduct a full inquiry, which had serious limitations on the veracity of the recommendations. They go on to say:
“We think that the lack of power to test the reliability of the information placed before it, in particular the absence of the power to hear evidence from persons or institutions that might have information relevant to the removal of the President from office, leads to the conclusion that it was never intended that the Panel should make a finding on whether the President is in fact guilty of any acts listed in section 89 (1).”
Therefore, the Panel could not reach a sufficient threshold of evidence to state the President has committed a serious violation, but merely that he may have.
Based on what the Independent Panel itself describes as its limitations created by Rule 129, we are being called upon to proceed with an Impeachment process, and the evidence will come through this process.
State institutions who have the capacity and capability to investigate and provide the evidence that the NA needs are busy with this process. The South African Reserve Bank; the National Prosecuting Authority; the Directorate for Priority Crimes; South African Police Services; the Office of the Public Protector and so on, a total of 8 state institutions, are all currently in the process of establishing evidence. Based on such evidence, this could then provide a rational to constitute an Impeachment Committee, depending on the evidence.
The Panel relied heavily on the fact that they could not subpoena witnesses or consider testimony in terms of Rule 129. The panel made a point of noting that it had not heard anything from any of the State Institutions currently conducting their investigations and that they could come to a different conclusion. A great deal of the material before the Panel is hearsay. Key players are relied upon. No affidavit or sworn testimony is provided.
Herein lies the fundamental weakness. The trigger for the impeachment process must be verifiable evidence that can form the basis upon which a Parliament process can be undertaken.
The essence of the ANC argument is that that we should allow the state agencies the time and space to provide the necessary evidence, if it is there, which then can be used as a trigger to initiate an Impeachment Committee process and not on an Independent Panel who castes doubt and limitations to its own findings.
We note that the President has taken the Panel’s report on review. This does not stop Parliament debating the matter as there is no interdict, but merely is a prayer of the President to the Constitutional Court.
Whilst the Parliamentary Process is political, we cannot sweep aside the test of rationality.
The mere formation of an Impeachment Committee does not suggest that it will automatically get the evidence it is looking for. State Agencies will themselves be reticent to divulge to Parliament investigations that are being undertaken, and we shall get into a protracted legal struggle on this matter which will absorb our time and take the focus away from the needs of the Nation and better the lives of the people.
We disagree that the Independent Panel could have concluded in paragraph 204 that “Accordingly we are satisfied that the evidence discloses, prima facie, a violation of section 96 of the Constitution read with section 83 of the Constitution”, as most of the content placed before the panel constitutes hearsay evidence.
At this point, any decision to establish an Impeachment Committee would be premature based on what is provided for in preliminary findings.
The ANC calls upon the institutions of the State investigating the Phala Phala matter to speedily conclude their investigations for Parliament to have a legitimate basis for considering whether or not we proceed with an Impeachment Committee.