MPs clash as lawyers fight to declare Hlophe fit to serve impeachment committee

Parliament is embroiled in its first political fight over the make-up and function of the groundbreaking impeachment committee set up to probe allegations against President Cyril Ramaphosa in terms of section 89 of the constitution.

This became clear during the meeting of the National Assembly rules committee on Wednesday, which was chaired by House speaker Thoko Didiza.

In one corner of the impeachment battle are GNU partners the DA, the ANC and FF+, in another are opposition parties the MK Party (MKP), the EFF, ActionSA and the African Transformation Movement (ATM).

At the heart of the battle is whether the rules to guide the work and composition of the impeachment committee should state that only “fit and proper MPs” should serve on it.

The discussion was so intense the ANC and DA MPs, led by their respective leaders Mdumiseni Ntuli and George Michalakis, butted heads with a parliamentary legal adviser on the proposal.

The proposal was first made last Thursday by Michalakis and backed by the DA during the meeting of the subcommittee on rules, which then resolved to seek legal advice following opposition objections.

Presenting the obtained advice, parliament’s legal adviser Michael Prince cautioned the rules committee against adopting the “fit and proper” proposal without first subjecting it to a public participation process, warning that it would not pass constitutional muster if they went ahead with it before public consultation.

Prince told the more than two-hour-long tense meeting that his advice follows consultations with two separate senior counsels.

In his 14-page legal advice seen by the Sunday Times, Prince further stated that the “fit and proper” proposal would limit elected MPs’ political right to participate in parliament.

Prince presented the committee with two options, with the first being “maintaining the status quo”.

“This means no additional requirements for membership to the impeachment committee are inserted in the National Assembly rules. This would preserve political rights and representivity. The National Assembly can rely on existing mechanisms to restrict membership, such as the ethics code and rules on recusal.”

In terms of option two, enforcing the “fit and proper rule” was riskier.

Which rules require as us parliament, for internal work, to go for a public consultation, and how is determination made that you can’t make that rule before you go for public participation, for internal workings?

—  Mdumiseni Ntuli, ANC chief whip

“We are of the view that this would require a clear definition of what constitutes ‘fit and proper’ in the context, coupled with a set of objective criteria and procedural safeguards. This approach may, for the reasons expressed earlier, also carry constitutional and institutional risks.”

The document further stated that the MKP’s parliamentary leader Dr John Hlophe is eligible to serve on the impeachment committee as the “fit and proper” requirement is not in the current rules of parliament.

The high court last year ruled that Hlophe, an impeached judge, was not fit and proper to serve on the Judicial Service Commission because the commission exercises public power.

But parliament’s lawyers determined that this does not apply to committees of parliament where MPs were deployed by parties.

This did not sit well with the ANC and the DA, who did not take kindly to Prince’s public participation proposal.

“Which rules require us as parliament, for internal work, to go for a public consultation, and how is determination made that you can’t make that rule before you go for public participation, for internal workings?” asked Ntuli.

Michalakis, himself an admitted attorney, also weighed in, arguing the legal advice is simply irrational.

“We have accepted submission but, certainly in the time that I have been here, have not taken any rules to public participation.

“To send it back to the subcommittee or to remove subject participation at this point would be irrational and would delay the matter unnecessarily. I would strongly argue that we proceed with this and we use the already established legal definition of what fit and proper is.”

But secretary to the National Assembly Masibulele Xaso was quick to remind him that House rules were subjected to public participation in 2016.

However, Michalakis’ chief whip, Glynnis Breytenbach, took matters further, arguing that “fit and proper” is one of the reasons certain MPs cannot not serve on other key parliamentary bodies such as intelligence and ethics committees.

Prince told MPs they need to distinguish ”between process issues and substantive issues”.

Ntuli immediately said: “With due respect I don’t agree with him. That is his opinion and I have a different opinion.”

The EFF’s Mzwanele Manyi said “fit and proper was not ordered by the Constitutional Court” in relation to the impeachment committee rules.

He also said what matters more is that the proposed rule comes with no clearly defined criteria to follow and who should lead the processes to determine whether an MP is fit and proper.

Manyi was echoed by the EFF’s Natasha Ntlangwini.

“To be in the intelligence committee, that is a vetting process. So are we saying that members of the impeachment must go for a vetting and security clearance? And by whom?” she asked.

“You can’t just say they must be fit and proper ― determined by who and how?”

Suanne Isaac, senior parliamentary legal adviser, confirmed that the national legislature, as matters stand, does not have a clear mechanism to define “fit and proper” in the context of MPs.

In the end, Didiza ordered that the thorny proposal be sent back to the subcommittee and legal advisers for fine-tuning.