Parties make submissions on terms of reference for Ramaphosa impeachment inquiry

Parliament has received formal submissions from various political parties regarding the terms of reference for the Section 89 impeachment committee investigating President Cyril Ramaphosa over the Phala Phala game farm theft.

The committee was established after an independent panel found a prima facie case against Ramaphosa for serious misconduct and a gross violation of the constitution.

The committee is opposing Ramaphosa’s urgent court bid in the Western Cape High Court to halt its proceedings.

In its submission to parliament, the African Transformation Movement (ATM) said the proposed definition of the impeachment motion needed to be amended.

The ATM argued that the current definition was historically incomplete and failed to acknowledge that the committee’s mandate stemmed specifically from the ATM’s motion introduced by its leader Vuyo Zungula, rather than “hypothetical future motions”.

“This committee exists because a particular impeachment motion progressed through every constitutional stage required by the National Assembly rules before ultimately being referred to this committee.“

In its lengthy submission, the party said the National Assembly debated the report and then resolved that an impeachment inquiry should proceed.

“The establishment of this committee is therefore inseparable from that specific motion. The committee’s jurisdiction does not arise from hypothetical future impeachment motions. Nor does it extend to every possible allegation that may be made against the president.”

The ATM argued that the terms of reference should accurately record that constitutional history.

The party warned that should the legal source of the committee’s authority be inaccurately described, it may lead to unnecessary procedural disputes.

“It might affect the scope of the inquiry, the admissibility of evidence, whether additional allegations may be introduced, whether witnesses may testify regarding matters outside the referral and ultimately whether the committee exceeded the mandate conferred upon it by the National Assembly.

“Each of these disputes has the potential to delay the inquiry and undermine public confidence in parliament. The committee should therefore eliminate uncertainty at the outset.”

The ATM also proposed that the terms of reference provide for the removal of an evidence leader.

It further proposed that the chief evidence leader be a senior legal practitioner with at least 15 years’ experience and a proven track record.

“They must have expertise in constitutional law, administrative law, parliamentary law and procedure, and the law of evidence and have experience in conducting trials, hearings, leading evidence in inquiries or any similar related experience.”

The ANC submitted that the president should have the prerogative in how he conducts his affairs with his team, suggesting that the terms of reference must not interfere with this.

“The detail as to how the president interacts with his representative should be left to the president. Matters of correspondence are dealt with operationally as and when they arise and dealt with the ordinarily course of how parliament handles correspondence. Prescribing these in the terms of reference is unnecessary,” the ANC said.

The EFF called for the appointment of experts by the impeachment committee in order to supplement its work.

The EFF said as soon as practicable after its first meeting, the impeachment committee must instruct the secretary of parliament to facilitate the appointment of a suitably qualified and experienced data or forensic expert and a suitably qualified and experienced customs or control exchange expert.

“Any expert appointed in terms of these Section 89 terms of reference must have 10 to 15 years of experience and a proven track record, have expertise in forensic investigations, customs or control exchange, have experience in providing expert evidence in inquiries or any similar related experience.”

However, the National Coloured Congress (NCC) holds a different view, arguing that empowering the section 89 committee to appoint forensic experts is not the way to go.

This is because parliament is not a criminal investigative body and should only exercise its constitutional function to oversee and hold the executive accountable.

“South Africa already has well-established institutions mandated to investigate allegations of wrongdoing, including the South African Police Service, the Directorate for Priority Crime Investigation, the Public Protector, the Special Investigating Unit, the Auditor-General, the Financial Intelligence Centre and various Chapter 9 institutions.”

The NCC argued that creating an additional investigative function within parliament would duplicate existing state resources, increase unnecessary public expenditure and blur the constitutional separation of powers.

The IFP has called for the terms of reference proposals to be directed towards strengthening the objective to improve drafting consistence and legal certainty.

The Patriotic Alliance said the constitutional issue should be argued and ventilated on its merits.

“The inquiry should not become a platform for political performance. Equally, the procedural rules should not be drafted so loosely that political performance can be dressed up as evidence.”

The PA said it believes that the practical safeguard is to anchor every step taken in the constitution and the rules.

“We must identify the charge, present the evidence, give the president the case to answer, regulate questioning, exclude unsupported versions, protect objections and require reasoned findings.”