1. Section 89 deals with the removal of the President.
2. Section 102 deals with a motion of no confidence
The constitution does not make any reference to "impeachment."
While the two processes could lead to a similar outcome namely, removal of the President from Office, they are different in an important way as described below.
1. Scheduling of Motions
Parliament treats motions regarding the above as priority. This is because of their constitutional significance. The notice of motion was received on March 31 and scheduled for debate on April 05.
2. The removal of the President
Section 89 of the Constitution deals with the removal of the President and provides as follows:
(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 or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(2) Anyone who has been removed from the office of President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.
2.1. Procedure for dealing with the removal of the President
The National Assembly does not as yet have an
established procedure for section 89 motions. There is a proposal (in the Rules
Subcommittee) which envisages a three staged process, namely:
i.
A
motion is tabled, and debated;
ii. The
matter is then referred to a committee to process; and
iii. The
committee then reports to the House with a recommendation.
The current debate in the Subcommittee is what type
of committee this should be. A committee of independent people has been
proposed - research is being conducted on this. In Parliament a standard
approach is for a committee of Parliamentarians.
NB: While this proposal is in line with
international practice, it has not served before the Rules Committee yet. The
meetings of the subcommittee on this and other matters are scheduled for this
week.
2.2. Interim Process
In 2015, a similar motion was put directly to the
House. The previous motion also proposed establishment of a committee. The
current motion does not propose establishment of a committee. The motion will
be put directly to the House after a debate.
2.3. Voting
The Constitution stipulates specific instances
where vote by secret ballot in the National Assembly is envisaged. These are:
i.
Election
of President,
ii.
Speaker
and,
iii.
Deputy
Speaker.
There is no requirement for voting by secret ballot
on this type of motion.
In Mr A P Tlouamma and others v The Speaker of the
National Assembly and others, the court dismissed an application which sought
in part to compel the NA to vote on a no confidence motion by secret ballot.
The court ruled that there was no implied or express constitutional requirement
for voting by secret ballot in respect of a motion of no confidence in the
President.
3. Motion
of no confidence
Section 102 of the Constitution deals with a motion of no confidence and provides
as follows:
(1) If the National Assembly, by a vote
supported by a majority of its members, passes a motion of no confidence in the
Cabinet excluding the President, the President must reconstitute the Cabinet.
(2) If the National Assembly, by a vote
supported by a majority of its members, passes a motion of no confidence in the
President, the President and the other members of the Cabinet and any Deputy
Ministers must resign.
3.1. Procedure for dealing with a motion of no confidence
Rule
102A of the National Assembly deals with motions
of no confidence in terms of section 102 of the Constitution and provides
as follows:
i.
A
member may propose that a motion of no confidence in the Cabinet or the
President in terms of section 102 be placed on the Order Paper.
ii. The
Speaker must accord such motion of no confidence due priority and before
scheduling it must consult with the Leader of Government Business and the Chief
Whip of the Majority Party.
iii. The
motion must comply, to the satisfaction of the Speaker, with the prescripts of
any relevant law or any relevant rules and orders of the House and directives
and guidelines recommended by the Rules Committee and approved by the House,
before being placed on the Order Paper, and must include the grounds on which
the proposed vote of no confidence is based.
iv. The
Speaker may request an amendment of or in any other manner deal with a notice
of a no confidence motion which contravenes the law, rules and orders of the
House or directives and guidelines approved by the House.
v.
After
proper consultation and once the Speaker is satisfied that the motion of no
confidence complies with the aforementioned prescribed law, rules, orders,
directives or guidelines of the House, the Speaker must ensure that the motion
of no confidence is scheduled, debated and voted on within a reasonable period
of time given the programme of the Assembly.
vi. The
debate on a motion of no confidence may not exceed the time allocated for it by
the Speaker, after aforesaid consultation process.
vii. If
a motion of no confidence cannot reasonably be scheduled by the last sitting
day of an annual session, it must be scheduled for consideration as soon as
possible in the next annual session.
viii. Rules
95, 97 and 101 do not apply to motions of no confidence in terms of this Rule.
4. Key
differences between Section 89 and Section 102
Both provisions deal with removal from office. The
voting thresholds are prescribed in each of the two provisions.
Section 89 deals ONLY with the removal of the President whereas section 102 (1)
deals with the removal of the Cabinet excluding the President and 102 (2) deals
with the removal of the President.
If the vote of no confidence is only against the
cabinet, in terms of 102 (1) the President is directed to reconstitute the
Cabinet.
If the vote of no confidence is in terms of 102 (2)
the President, Deputy Presidents and other members of the Cabinet are all
directed by the Constitution to resign.
If the President is removed in terms of section 89
(1) (a) and (b) the President will not receive any benefits of that office and
may not serve in any public office.
Therefore, in terms of 89 (2) any President who has
been removed from office can never work for government again.
In other words, the consequence of section 102 is
the same as a resignation/resignations.
Section 89 is tantamount to dismissal as per labour
terms and is commonly referred to as "impeachment."
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