‘Fit and proper’ phrase divides MPs as Rules Committee weighs impeachment-rule changes

Parliament’s Rules Committee spent its meeting debating whether to insert the phrase “fit and proper” into the rules governing who may serve on the Impeachment Committee, after the Subcommittee on Review of Assembly Rules proposed the amendment.

Legal advice: permissible but must be rational and defined

Parliamentary legal advisor Michael Prince told the committee that the National Assembly is constitutionally empowered to regulate committee composition and may introduce a fit and proper requirement. He cautioned, however, that the requirement would limit political rights protected by Section 19 of the Constitution and therefore must be rational, clearly defined and justifiable under Section 36 of the Constitution.

“However, we caution that such a requirement would limit the political rights protected by Section 19 of the Constitution, and it’s for this reason that we said that a fit and proper requirement should it be inserted, must be rational. It should be clearly defined, and must be able to be justifiable under Section 36 of the Constitution,” Prince said.

Prince also advised that any such requirement should be subjected to proper consultation, because it would affect both members of the National Assembly and the public. He suggested that section 47 of the Constitution could be amended to add a fit and proper requirement to the grounds of ineligibility to become a member of the Assembly and noted a Private Member’s Bill dealing with eligibility in section 47.

Opposition and support among MPs

MK Party MP Mzwanele Manyi warned that the proposed amendment introduced undefined and potentially problematic standards that could be open to interpretation and manipulation. He said the phrase “must be removed entirely or be accompanied by reviewable criteria.”

“The phrase must be removed entirely or be accompanied by reviewable criteria. This might complicate the situation,” Manyi said.

EFF chief whip Nontando Nolutshungu agreed with the legal opinion, describing the DA proposal as inconsistent with section 47 of the Constitution and saying the DA must seek a constitutional amendment first.

“The DA, if they want to push for that amendment, must seek a constitutional amendment before anything can be done,” said Nolutshungu.

DA and others argue for higher standards

DA chief parliamentary leader George Michalakis welcomed the legal advice’s view that Parliament could insert the phrase. He said the Impeachment Committee is the most serious accountability mechanism and therefore requires higher ethical and general conduct from members. Michalakis said the phrase has been defined through court precedents and referenced a court order finding MK parliamentary leader John Hlophe unsuitable to serve on the Judicial Service Commission.

Michalakis also noted that EFF MP Julius Malema has been found guilty by Gomgo Court but has appealed the judgment, and reiterated: “We must continue with the insertion of fit and proper,” he said.

Procedural notes and next steps

ANC chief whip Mdumiseni Ntuli moved that the rules be adopted as recommended, saying the committee should deal with the rules as a matter of principle and not associate with an individual. Freedom Front Plus MP Wouter Wessels backed the adoption of the rules as proposed, and ActionSA parliamentary leader Athol Trollip said the rules should ensure fit and proper persons serve on committees and panels of Parliament.

“We should avoid a situation where parties will run to courts to get our misunderstanding interpreted by the court,” Nolutshungu said, urging Parliament to act on the legal advice.

Speaker asks for clarity on meaning and who decides

National Assembly Speaker Thoko Didiza said that while members agreed with the principle, there was no clarity on what the phrase ‘fit and proper’ means and on who would make that determination.

“The other members are raising an important matter of distinction … It is not clear who makes that determination,” she said.

Didiza ruled that the Subcommittee on Review of Assembly Rules together with legal services must meet soon to define the contentious phrase so that when the principle is approved everyone understands its meaning. She also referred to a proposal concerning impeachment for conduct not directly attributable to the president and clarified that the rules provide the president the right to be heard and be assisted by a legal practitioner. She said, “I don’t think it follows that he will not appear,” in response to concerns about whether the president must appear personally before the Impeachment Committee.

Asked what referrals of some rules to the Subcommittee meant for the Impeachment Committee’s work, Didiza said: “The committee chair determines when it meets and how to deal with its programme.”