Impeaching the President is legally sound but practically difficult

By Prof Bheki Mngomezulu

President Cyril Ramaphosa’s Phala Phala saga has added to the ANC’s woes. It comes when the party is still ruminating about how it is going to address evident divisions within its ranks and while making sense of what to do with the recommendations in the Zondo Commission report on its members.

The ANC finds itself having to frantically individually and collectively defend the President as opposition political parties and members of the public rightly demand answers on what really happened at the Phala Phala farm. The serious allegations that were laid bare by Arthur Fraser paint a bad picture about this incident and subsequent developments.

State institutions are treading carefully to avoid compounding the already volatile situation. Interestingly, while the party makes indefatigable attempts to protect the President against his critics and detractors, he does not seem equally worried about what is happening. In a way, he has reasons to do so. Thus far, the NPA has not laid any formal charges against him. As such, the party cannot invoke the ‘step aside’ rule that would bar him from contesting the party’s leadership position at the ANC’s elective conference that is scheduled to take place in December.

Secondly, when Ramaphosa eventually appeared before the party’s Integrity Commission after some delays, he opted not to respond to certain questions – arguing that the Phala Phala matter is still under investigation, which was a correct and justifiable statement to make. For that reason, the Integrity Commission could not and cannot find its President guilty of any offence before the matter has been thoroughly and properly ventilated. Once again, Ramaphosa is safe, at least for now.

The Public Protector sent 31 questions to the President to answer. He did not respond to them as promptly as expected due to his other commitments as head of state – something that was understandable. Instead, he asked for an extension, which was duly granted by the acting Public Protector, Adv Kholeka Gcaleka. When Ramaphosa missed the extended deadline, this raised concerns – with some insinuating that he was being disrespectful of the Public Protector’s office.

This development put the acting Public Protector under immense pressure from opposition political parties and some members of the public. They wanted to know why the President was being given preferential treatment while the Constitution is clear that we are all equal before the law as the citizens of this country. In response to this pressure, Adv Gcaleka threatened to issue the subpoenas to the President. Only then did the President respond to the 31 questions.

Opposition political parties have weighed in on this matter in more than one way. When the news about Arthur Fraser reporting the matter to the police surfaced, some political parties deemed the issue too serious and wanted swift action to be taken by relevant government institutions. Gen Bantu Holomisa, leader of the UDM, proposed that it would be better for the President to temporarily vacate his position while the investigation is under way. This did not happen.

The counter view was that no charge had yet been laid against Ramaphosa. The leader of African Transformation Movement (ATM), Vuyolwethu Zungula invoked section 89 of the Constitution of the Republic of South Africa and approached the Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, with the request to begin the impeachment process of the President. His request was turned down.

When the matter was revisited, the Speaker of the National Assembly informed the nation that an independent panel of experts would be appointed to look into the matter and to advise Parliament if there is enough reason to necessitate invoking section 89 of the Constitution. Political parties are considering the names of those who will be appointed to serve in such a committee.

Recently, some of the opposition parties held a media briefing to inform the nation that they are resolute to pursue the issue of Ramaphosa and ensure that he faces the might of the law like any other citizen. They are within their right to do so. However, the process is more complex than it appears at face value. In a nutshell, section 89 of the Constitution lists three instances that constitute the basis on which a sitting President can be impeached. Firstly, there must be evidence of a serious violation of the Constitution or the law by the President. Secondly, there must be evidence of serious misconduct. Thirdly, there must be evidence of the President’s inability to perform the functions of the office of the President.

Once a determination has been made on all of these three issues, the matter has to be tabled in Parliament for debate. At the conclusion of the debate, voting must happen. Importantly, a two-thirds majority is needed in order to remove the President. The same applies to the Public Protector and the judges.

Now, the question arises: do opposition parties have the numbers to satisfy the requirements of section 89? The answer to that question is an emphatic no! The second question becomes: is it wrong for opposition political parties to even contemplate invoking section 89? To that question, the answer is still an emphatic no! They are entitled to raise a motion to impeach the President. Whether they win or not, is neither here nor there. After all, not all the Bills that are tabled in Parliament are passed. But this does not stop ministers from tabling them anyway.

Another option which is available to political parties is to invoke section 102 of the Constitution. This section is about motions of no confidence. Section 102 (a) states that the National Assembly can, through a simple majority, pass a vote of no confidence in the Cabinet. If that motion passes, the sitting President is obliged to reconstitute the Cabinet. He or she remains at the helm since the motion is directed at the Cabinet.

Section 102 (b) states that if the National Assembly, through a simple majority, passes a vote of no confidence in the President, he or she, together with all ministers and deputy ministers must resign.

Therefore, when comparing sections 89 and 102 of the Constitution, it appears that section 102 is achievable compared to section 89. The former needs a simple majority while the latter requires a two-thirds majority. If opposition political parties work as a block and succeed in lobbying some members of the ANC to vote with them, they could succeed to remove the President and the Cabinet.

What is of concern at the moment is that some opposition political parties are determined to let section 89 and section 102 run parallel to each other. Others such as the DA hold the view that the two processes should come one after the other. This is bound to weaken the opposition.

Another important factor to be taken into consideration is the decision which is the prerogative of the Speaker of the National Assembly. The Speaker has the right to decide if the voting process will be carried out openly or through a secret ballot. If a secret ballot is decided upon and opposition parties have lobbied ANC members well, section 102 could easily sail through. However, open voting might reduce any chance of success. What is clear from this synopsis is that opposition political parties have to be strategic if they are to succeed.

Firstly, they must unite as opposition parties. Secondly, they must lobby some ANC members. Thirdly, they should refrain from running parallel processes. If they think that section 89 will succeed, they must go with it. However, if they feel that section 102 is more feasible compared to section 89, then they must go with section 102 first.

The reality of the matter is that the issue of Ramaphosa is not entirely in the hands of the opposition parties. Constitutionally, they do have a role to play in the National Assembly. They have the right to table motions – including invoking section 102. They also have the right to institute the impeachment process in terms of sections 89.

But, the Speaker of the National Assembly, the ANC as the governing party which enjoys the majority, and state institutions that are responsible to handle the Phala Phala matter are all important role-players in this regard.

In the final analysis, while it is important for opposition parties to execute their mandate, they also need the support of the other role-players. If all the actors put the country first, they will know which way to go. Should they put their interests first, the end-result might not be the desirable one.

Lastly, it would be wrong to blame opposition parties in what they are doing. However, they must be realistic and strategic. Removing the President is not an easy exercise. It calls for concerted effort and leadership prowess. Politicians need to act appropriately. Failure to do so might land our country into chaos as evidenced in Mali and Sri Lanka. This would be a shame!

Mngomezulu is Professor of Political Science and International Relations at the University of the Western Cape.

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