Now that the concourt refuses to hear President Cyril Ramaphosa’s case to overturn Ngcobo’s report on whether he should be charged because he did not make a direct access case, I still have a big puzzle when I read the report. arrive at a “prima facie” finding based on “information” that does not meet the standard for evidence.
Most of these cases are in the news as the basis for Ramaphosa’s legal challenge.
I am not a lawyer, but I follow many cases and have argued in concourt myself. The following is based on the logic of the prima facie meaning, which is commonly known, the separation of powers and the common understanding of the law.
Prima facie evidence is what will win the case if it is not answered. For this, evidence must be admissible. Hearsay is generally inadmissible unless it can be proved or there is a strong case for admitting it in the interests of justice. Witnesses must be called to interrogate the basis for claiming the news is reliable. So why did the qualified panel conclude that Ramaphosa had a case to answer, despite failing to meet the usual standards for admitting hearsay?
To answer this question, it is useful to look at the rules of parliament to implement Section 89 of the constitution, which provides for impeachment. Impeachment requires two-thirds of the members of parliament to vote to remove the president but only if there is a reason for “serious violation of the constitution or the law; serious misconduct; or inability to perform the functions of the office”.
The purpose of the parliamentary rules on which the inquiry is based is to ensure that parliamentary votes are based on valid reasons. So what do the rules do? The rules for implementing section 89 arise from the 2017 case and form part of the Rules of the National Assembly.
The procedure designed by the rule requires the members of parliament to make a motion in parliament that contains “accusations clearly formulated and substantiated by the reasons mentioned in Section 89, which must prima facie show that the president” can be sued for any reason in court. constitution. Another requirement is that all evidence relied on in the motion must be presented beforehand (Rule 129A).
At this point, you have to ask how the impeachment motion for Ramaphosa has gone so far because the alleged wrongdoing evidence that reached the Ngcobo inquiry is hearsay. Why did the speaker not refer the accusation back to the proposer for proof? How does Ramaphosa challenge the findings because you cannot have a prima facie case based on hearsay, when the speaker allows the past?
Four more stages follow the proposal by the speaker: an independent panel conducts a preliminary investigation (rule 129D–H), a parliamentary debate on whether to accept the report of the investigation, followed by an impeachment committee that works in the same way. way as a parliamentary committee. The final stage, if far away, will be a parliamentary impeachment vote.
After the flawed preliminaries, Ngcobo’s inquiry has no basis to make a firmer prima facie determination because the preliminary examination rules do not grant the power of subpoena or cross-examination. It may give the MPs an opportunity to make submissions but cannot take oral evidence (Rule 129G).
If the parliament has accepted the preliminary investigation report, the impeachment committee will exercise all the powers of the parliamentary committee and must act in a fair manner (Rule 129M). It is only at this stage that the correct rules of evidence can be applied.
Regardless of what evidence is found, if the process reaches a conclusion, a two-thirds vote counted by all members, not just the current one, is still required to remove the president. If the evidence is overwhelmingly negative, but the MP does not vote to remove the president, the only remedy left is the ballot box. This seems to be the prerogative to remove the president to court as a violation of the separation of powers.
The separation of powers in general means that the courts can only interfere with the legislative function when the legislature acts unlawfully. The 2017 EFF case establishing the requirements for Section 89 proceedings is an example. A requirement in the constitution to act in a certain way implies that there is due process consistent with constitutional principles to carry out the act.
So what is constitutional parliamentary rule?
The odd part of the rule is the initial investigation. Since the motion must be put on the basis of prima facie evidence, why is there a need for another process before parliament can appoint its own impeachment committee? Since this preliminary inquiry has limited power, if the preliminary evidence is insufficient to establish a prima facie case, what should be done?
More seriously, electing and removing the president is the prerogative of the parliament. Why does the outside body have to be involved at all? The final decision rests with parliament and parliament alone. Why not just appoint a parliamentary impeachment committee, if the speaker is satisfied that prima facie evidence has been presented? The speaker is empowered to seek legal advice on the matter and if the member is concerned that an attempt to bring an impeachment motion before parliament has been improperly thwarted, he should seek help from the courts.
In the Phala Phala matter, the initial investigation only allowed Ramaphosa to settle the matter, then tried to get the concourt to reject the findings after parliament voted. Very little was done to cross the allegations and the preliminary inquiry, in terms of parliamentary rules, did not have the power to do so.
The question I have is why no one has challenged the parliamentary rule on Section 89 in concourt.
The need to move a motion based on prima facie evidence is reasonable, as attempting to impeach the president without such conditions would result in a frivolous impeachment motion. The opening panel doesn’t provide a clear goal once the hurdle is crossed. This puts the right decision of the parliament in other hands and for reasons that doubt its constitutional validity – although the parliament retains the prerogative to reject the report.
The simplest implementation of Section 89 is to require a substantive motion supported by prima facie evidence of constitutional grounds for impeachment. The speaker, acting with legal advice, should be forced to be an impeachment committee if the evidence is sufficient (which cannot be if it is not prima facie evidence) to establish the case to answer.
Any MP who disagrees with the refusal to serve on the impeachment committee still has the right to take the matter to court. Once the impeachment committee is established, it must have the authority to summon and examine witnesses, take written testimony and, if necessary, protect witnesses and whistleblowers, given the power of the president.
Ramaphosa’s process to Concourt was flawed. This places unnecessary steps in the hands of external bodies in matters that are the prerogative of parliament. That extra step serves no purpose other than delay and obfuscation. Overturning the report is not a remedy that should have been before the Concourt: improving the process.
Philip Machanick is professor emeritus in Computer Science at Rhodes University.
The views expressed are those of the author and do not necessarily reflect official policy or position Mail & Guardians.