Can the Speaker establish a multi-party committee to investigate the President?
The motion of no confidence in the President was held by secret ballot on 8 August 2017. The National Assembly (NA), first debated the motion which was then followed by a vote by secret ballot. The motion was defeated with 198 votes against, 177 for and nine abstentions.
In an application to the Constitutional Court (Concourt), the Economic Freedom Fighters and Others v Speaker of the National Assembly (NA) and President [CCT 76/17], it was argued that there is an obligation on the Speaker to have commenced an enquiry and an investigation into the conduct of the President as soon as it was found that the President had failed to implement the remedial actions of the Public Protector’s report (Economic Freedom Fighters v Speaker of the NA, President of RSA and Public Protector [CCT 143/15 and CCT 171/15]). Such an enquiry should take place before a motion to remove the President in terms of section 89 of the Constitution is tabled in the NA. The enquiry should take the form of a fact-finding, multi-party committee that would call the President to answer questions about the findings in the Public Protector’s report.
In its application, it is further argued that there are insufficient mechanisms in Parliament to hold the President to account, particularly, rules in terms of section 89. Section 89 reads as follows:
Removal of President
89(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of:
(a) a serious violation of the Constitution;
(b) serious misconduct; or
(c) inability to perform the functions of office.
The declaratory orders sought raised the fundamental question around the separation of powers and whether the Concourt is able to compel the Speaker to establish a multi-party, fact finding committee. Another question raised and to be decided is what the measure of accountability was as envisaged by the Constitution.
The Speaker responded that since 2014, the President has been subject to about four motions of no confidence and 1 motion to remove the President in terms of section 89. The Speaker further indicated that the President had attended the NA to answer questions in terms of the NA Rules. Each motion would have been debated and followed by a vote.
The Speaker further responded that pursuant to EFF Case [CCT 143/15 and CCT 171/15], 27 questions related to the judgment and surrounding issues were put to the executive including, the President. In 2016, 11 questions were put to the executive and responses were provided to all questions. In 2017, 16 questions have been put to the executive and 8 responses have been provided to date.
On the order sought to compel the NA to put all appropriate mechanisms and processes in place to hold the President accountable, particularly in relation to developing rules to section 89, the Deputy Speaker responded that there have been several instances where the rules of Parliament have been amended. The last review of the rules took place in 2012, where the Fourth Parliament mandated a subcommittee to do a comprehensive review of the NA rules. This review was not completed at the end of the Fourth Parliament. The Fifth Parliament recommenced the project after the 2014 elections. As there were new political parties and new MPs, it was agreed to start the review of the rules afresh. The rules were adopted in 2016 with some issues outstanding including the rules on section 89. It was agreed that there be further research, which was deliberated on and the subcommittee agreed that political parties were to provide inputs and policy guidance on the draft rules. The Deputy Speaker responded that no political party had made inputs to the draft rules thus far.
During the pre-trial hearing on the 5 September, the Justices raised some very interesting questions. One of the questions was whether the Speaker had a duty to establish a multi-party committee to investigate the conduct of the President? If yes, then when would such a duty have arisen? There are no provisions in the Constitution which specifically deal with the role and powers of the Speaker. However, as administrative leader of the NA, the Speaker has an implicit duty to uphold the dignity and authority of the Assembly, thereby enhancing its ability to fulfil its constitutional mandate to pass legislation, in a manner that promotes a participatory and representative democracy, as well as to hold the executive to account. This issue was robustly discussed in Tlouamma v Speaker [A 3236/15]. The Speaker, unlike a Judge, is required by the Constitution to be and to remain a member of his or her political party represented in the NA. The Speaker is also required to act impartially. It would create quite a conundrum if the Speaker would, of her own accord, have to decide whether to commence a multi-party committee to investigate the conduct and removal of the President, who would very likely be the President of the party that the Speaker is a member of.
The other question that I found interesting was what sort of accountability system is envisaged by the Constitution and what is meant by ‘scrutiny’. Counsel for the EFF gave the Concourt’s own interpretation of ‘scrutiny’, as highlighted in the EFF case [CCT 143/15 and CCT 171/15]. There it was held that “to ‘scrutinise’ means subject to ‘scrutiny’. And ‘scrutiny’ implies a careful and thorough examination or a penetrating or searching reflection.” Further, in relation to this, it was emphasised that accountability is a constitutional norm and that there are two forms of accountability. A more stringent form of accountability such as a constitutionally mandated accountability, led by Parliament, as opposed to a softer more discretionary form of accountability, where political parties may want to put a question or not. I would venture to say that the Constitution envisages the latter form of accountability. I base this on separation of powers. On the one hand, the doctrine, recognises the functional independence of branches of government and, on the other, the need for a system of checks and balances, which focuses on the desirability of ensuring that the constitutional order prevents the branches of government from usurping power from one another.
The Concourt has reserved judgement. To conclude: a Justice asked the counsel for the EFF whether, if the motion of no-confidence in the President had succeeded, would that have been Parliament holding the President accountable? To which the counsel responded, “Yes”.
CEO, Zelna Jansen Consultancy
 In terms of founding papers, the following declaratory orders are sought:
1. A finding that the inaction of the NA in response to Concourt finding in the Economic Freedom Fighters v Speaker of the NA, President of RSA and Public Protector [CCT 143/15 and CCT 171/15], that the President acted unconstitutionally when he failed to implement the Public Protector’s remedial action.
2. To compel the Speaker to take the necessary and appropriate steps to determine the seriousness of violation by the President as a prelude to reporting to the NA and for purposes of holding the President accountable. The Speaker must then be compelled to report to the Concourt within a reasonable period.
3. A finding that the NA not only breached its constitutional duties by failing to launch impeachment investigations, but that had also breached its constitutional duties by failing to create effective mechanisms to allow Members of Parliament (MPs) of the NA to initiate impeachment investigations and hearings.
4. To compel the NA to put all appropriate mechanisms and processes in place in order to hold the President accountable for violating the Constitution by virtue of failing to implement the report of the Public Protector.