President Cyril Ramaphosa can be compelled to testify before parliament’s section 89 impeachment committee if he refuses to appear voluntarily, according to a confidential legal opinion that lays out the rules that will govern one of the most consequential constitutional processes since democracy.
The opinion, prepared by parliament’s constitutional and legal services office for the impeachment committee chaired by Makashule Gana, concludes that the National Assembly has the constitutional authority to summon the president to give evidence and that he cannot rely on a right to remain silent to avoid questioning.
The advice is likely to shape the committee’s approach as it prepares for impeachment proceedings arising from the Constitutional Court’s ruling that parliament must conduct a full inquiry into allegations against the president under section 89 of the constitution.
The 18-page opinion, dated August 4, also settles several contentious questions that have divided political parties, including what standard of proof should apply, whether Ramaphosa should be required to testify before other witnesses and whether the independent panel that initially assessed the impeachment motion should brief MPs.
Parliament’s lawyers conclude that while the constitution does not prescribe a specific standard of proof for impeachment proceedings, the committee should not apply the criminal standard of “beyond reasonable doubt” or simply rely on political opinion.
Instead, they recommend that any finding against the president be based on “cogent, reliable and persuasive evidence” capable of meeting constitutional requirements of legality, rationality and procedural fairness.
On the question of Ramaphosa’s appearance before the committee, the legal advisers reject any suggestion that the president enjoys a constitutional right not to account to parliament.
“The idea that a president who is called to account by the National Assembly ... has a right to remain silent or, more aptly, ‘a right not to account’ is contradictory to the constitutional scheme,” the opinion states.
It says section 56 of the constitution empowers parliamentary committees to summon “any person”, a category that includes the president. While the committee should first invite Ramaphosa to testify voluntarily, it may issue a summons should he refuse to appear.
The opinion further notes that the constitutional right to remain silent applies in criminal proceedings and does not extend to parliamentary oversight processes.
However, parliament’s legal advisers caution against requiring Ramaphosa to testify before evidence has been led.
Doing so, they argue, would improperly reverse the burden of proof by forcing the president to answer allegations before the committee has established a factual case against him.
“The president must be called to answer to allegations supported by evidence gathered by the impeachment committee,” the opinion states, warning that calling him first would undermine procedural fairness.
The legal opinion also rejects proposals for members of the independent panel that first considered the impeachment motion to brief the committee.
It argues that the panel completed its legal function when it submitted its report and is now functus officio, meaning it has no further role in the process.
Allowing the panel to explain or defend its findings would blur the distinction between its preliminary screening function and the committee’s independent fact-finding responsibilities, according to the opinion.
The lawyers further note that because the panel has chosen not to actively defend its report in Ramaphosa’s pending court review, it would be inappropriate for its members to brief parliament on the report’s reasoning.
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