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    Stamped Notice of Motion and Founding Affidavit-1

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    9K views59 pages

    Stamped Notice of Motion and Founding Affidavit-1

    Uploaded by

    Krash King
    Stamped Notice of Motion and Founding Affidavit-1

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 59
    CCT 353/27 ‘THE CONSTITUTIONAL COURT OF SOUTH AFRICA case Inthe mater between MATAMELA CYRIL RAMAPHOSA 1 Applicant and r ‘SANDILE NGCOBO NO — : First Respondent THOKOZILE MASIPANO | os Second Respondent MAHLAPE SELLO NO \ ‘Third Respondent SPEAKER OF THE NATIONAL ASSEMBLY Fouth Respondent VUYOLWETHU ZUNGULA Frith Respondent, APPLICATION FOR REVIEW PLEASE TAKE NOTICE 1. The applicant applies to this cour forthe following orders: 1.1. itis declared that, in terms of section 167(4Xe) of the Constiuton, only this court may decide tis application 1.2. The applicant is granted leave in terms of section 167(6X.a) of the Constitution to bring this application directly to this court, 1.3 The report ofthe Independent Panel, dated 30 November 2022, rendered in terms of rule 1296 of the Rules ofthe National Assembly (the Report, and particularly the 14 15 16 we DP - Ct, Vt de ‘Scafetdabs paragraph 264 of te Repo. ae reviened, declared ula {and set aside. It is deciared that any steps taken by the National Assambly pursuant fo the Report ‘are equally uniawful and invalid The respondents opposing this application, if any, are ordered jointly and severally to pay the apphicant's costs. ‘The applicant i forded alternative rate. 2. The applicant will rely on his accompanying founding affidavit including its annexures. 3. This court can deal with this matter without oral evidence. 4. The applicant has appointed the address of his attomeys of record mentioned below at ich he wil accept service of all documents in these proceedings. 5. fyouwish to oppose this application, you mus, within ten days, give notice of your intention ‘© oppo8e tothe applicant and the Registrar ofthis court and inthe notive appoint an address. ‘at which you will accept notice and service of all documents in these proceedings, 6. This matter willbe gisposed of, in accordance with the directions ofthe Chief Justice DATED AT JOHANNESBURG ON THIS Sx DAY OF DECEMBER 2022 TO: THE REGISTRAR... vonannepafina _ AND To: [ ; Justice Sante Ngoobo CChaiperson: Section 89 independent Panel — First Respondent Tel: 082 242 0089 Email: sheleni0@amai.com AND To: Justice Thokozile Masipa ‘Member: Section 89 Independent Panel ‘Second Respondent Tol: 082 852 2640 Email: masipathoko@amall.com AND To: ‘Advocate Mahlape Sello, SC ‘Member: Section 89 Independent Pane! Third Respondent Tel 083 414.4428 HARRIS NUPEN MOLEBATSI INC. Applicant's attomeys Floor, 1 Bompas Rd, Dunkeld West, Johannesburg Tek 011 017 3100 Fax: 011 268 0470 Email: pharis@hnmattomeys.co.zal rethable@hnmattomeys.co za / rmira@hnmattomeys.co.za Ref: P Harts /R Mokgatle PER EMAIL, PER EMAIL PER EMAIL Email: AND TO: ‘The Speaker ofthe National Assembly PER EMAIL Fourth Respondent Office ofthe Speaker ofthe National Assembly Pariament of the Republic of South Africa Pariament Street Cape Town, 8000 Email: xgeome@oarlament.gov.za; zadhikarie@oariament.gov.za: Louw @parlament.gov.za; » St AND To: Hon. Vuyolwethu Zungula, MP PEREMAIL African Transformation Movernent President Fifth Respondent Tel: 083 240 7095 Email: vaungula(@pariament gov.za CCT 352/22 ‘THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case: In the matter between: MATAMELA CYRIL RAMAPHOSA, Applicant ‘and SANDILENGCOBONO First Respondent 2 5 | ‘THOKOZILE MASIPA NO ‘Second Respondent MAHLAPE SELLO NO Third Respondent ‘SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent VUYOLWETHU ZUNGULA Fifth Respondent FOUNDING AFFIDAVIT TABLE OF CONTENTS. ‘THE PARTIES. ‘THE ESSENCE OF THIS APPLICATION. ‘THE BACKGROUND, THE PANEL DIRECT ACCESS TO THIS COURT Exclusive jurisdiction in terms of section 187(4)(e). ‘Application for direct access. ‘THE PANEL'S MANDATE Introduction A substantive notice of motion ‘The appointment ofan Independent Pane! ‘The subsequent processes. Core features of the process ‘THE PANEL MISUNDERSTOOD ITS MANDATE ‘THE PANEL'S EVALUATION OF THE EVIDENCE Legality of he information ‘The Panel imposed a reverse onus on me Failure to apply the hearsay rule CHARGE 1: “OTHER PAID WORK" | did not do “other pat work” | acted in good faith (CHARGE 2: SECTION 34 OF PRECCA The charge | did not contravene section 34 | acted in good faith CHARGES 3 AND 4: MY REQUEST TO GENERAL RHODE The charges ‘The scope of the charges ‘THE SOURCE OF THE FOREIGN CURRENCY. CONCLUSION. 83 | the undersigned, MATAMELA CYRIL RAMAPHOSA make the folowing statement under oath ‘THE PARTIES 1 3 | am the applicant. | am the President of South AVtica. | have personal knowiedge ofthe matters to which | depose inthis affidavit except where itis evident from the context that I do not. My submissions of law are made on the advice of my lawyers. The first, second and third respondents are cited in their capacities as ‘members of an Independent Panel appointed in terms of rule 128D of the Rules ofthe National Assembly. They are: 2.1 Justice Sandile Ngcobo, a former Chief Justice of South Attica 2.2 Justice Thokozile Masipa, a former judge of the High Court of South Abi. 2.3 Advocate Mahlape Sello SC, a senior advocate in private practice 24 The frst, second and respondents conducted their business from Room 701, 7 Floor, 100 Plein Street Building, Parliament, Cape Town The fourth respondent is the Speaker ofthe National Assembly, Parliament, Cape Town, 4 The fith respondent is Mr Vuyolwethu Zungula, a member of the National ‘Assembly and the leader of the African Transformation Movement. | do not seek any relief against him. I cite him only because he proposed the motion which triggered the National Assembly's appointment ofthe Panel ‘THE ESSENCE OF THIS APPLICATION 5 Section 89(1) of the Constitution provides for the removal ofthe President as follows: “The National Assembly, by @ 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 serious violation ofthe Constitution or the law; (©) serious misconduct; or (©) inabitty to perform the functions of ofce." © Rules 129A to 1290 of the Rules of the National Assembly prescribe the procedure for the removal ofthe President. A a copy of the Rules are annexed to the Report as “Annexure IP 5" 7 On 48 July 2022, the fith respondent, Mr Zungul, intiated proceedings for ‘my removal from office by the submission of a notice of motion in terms of rule 129A. A copy of the notice of motion is annexed to the Report as "Annexure eo 8 The National Assembly appointed the first, second and third respondents as fan Independent Panel to undertake @ preliminary inquiry in terms of rules 1290 to 120H. 8 The Panel rendered its report on 30 November 2022, Annexure “MCR” is a copy of the report. It comprises three volumes. Volume 1 isthe report ise \Volumes 2 and 3 comprise the information on which the Panel based its report | shall, for convenience, refer to volume 1 as “the report unless | specify otherwise, 10 As appears from paragraph 264 on page 82 ofthe report, the Panel concluded thatthe information placed before it ‘discloses, prima face, thatthe President ‘may have commited” serious violations of the Constitution and the law and ‘serious misconduct within the meaning of section 89(1) ofthe Constitution 11 The purpose of this application is to review and set aside the report and Particularly its recommendation in paragraph 264. The Panel rendered its report and made its recommendation in the exercise of public power. They are thus reviewable under the constitutional principe of legality. | submit thatthe Panel misconceived its mandate, misjudged the information placed before it and misinterpreted the fourcharges advanced against me, tmoreover strayed beyond the four charges and considered matters not properly before it. 12 bring this application directly to this court on the following grounds: ep 24 voume 12.1 The first is that this is an application for a decision of the kind contemplated by section 167(4)(e) of the Constitution in that the court is ‘asked to decide thatthe Panel 1 organ of the National Assembly, failed to fulfil ts obigations in terms of section 89 of the Constitution read with the rules ofthe National Assembly. 12.2 also apply for the leave of this court to allow me to bring this matter directly to this cour inthe interests of justice in terms of section 187;(6)(a) fof the Constitution and rule 18 of the rules ofthis court ‘THE BACKGROUND 13. The facts relevant to this application relating to the Phala Phala farm and its ‘operations are set out in my submission to the Panel which isin the Panes report volume 3 at page 1627. | ask that those facts be read as incorporated herein to the extent necessary THE PANEL 14 On 14 September 2022, the Speaker appointed the Panel. 18 On 19 October 2022, the Speaker formally eferred the Motion to the Panel in terms rule 129097 5 Repatvl pa 18 6 7 18 9 ‘Shorty after the referral ofthe Motion to the Panel sued a tietabe to ‘conduct the preliminary enquiry, setting out the timelines for its work. In ‘dion, the Panel issued a Notice in terms of rule 1296(1)(c)() ining ‘addon information from members ofthe National Assembiy within six days ‘of the publication of the Notice in the Announcements, Tablings and Committee Reports * ‘The Panel received submissions from the African Transformation Movement, Economic Freedom Fighters and the United Democratic Movement on 27 (October 2022. Under cover of two letters dated 20 and 28 October 2022, the Panel provided ‘me with copies ofthe information before it. It comprised documents running to 1627 pages and ten video cps. In its letter of 26 October 2022, annexure "MICR2”, the Panel ivitod me to respond, in wring, to “all relevant allegations’ against me. Its invitation accorded with rule 1296(1)()il). The Panel gave me 10 calendar days to respond. meant that | had to respond by 6 November 2022, that, after only six weekdays, | understood the Panels invitation to mean that | was invited to respond only to the allegations relevant tothe four charges against me, | made that ce ‘my response dated 6 November 2022. There is @ copy of my response in the 2 Panels report volume 3 at pages 1627 to 1765. | confined my response to the ‘allegations which | considered to be relevant tothe four charges against me, | shal later demonstrate thatthe Panel strayed beyond the four charges. nso {ar asi did 80 it strayed beyond its mandate. it was also unfair to me because itraised matters to which | have never been invited to respond. DIRECT ACCESS TO THIS COURT Exclusive jurisdiction in torms of section 187(4\(e) 2 23 24 25 ‘The possible removal of an elected President through impeachment is a ‘matter of pre-eminent constitutional importance, A President is elected by the "National Assembly. Members ofthe National Assembly, in tur, are elected through their politcal parties by voters exercising their rights ia terms of section 19 of the Bill of Rights. Section 89 of the Constitution provides a mechanism for holding the executive accountable. A removal also directly affects the poltical choices ofthe voters. Itis thus extremely important that a removal ef the President from office must be lawful and consistent with the Constitution, | am advised that only this Court can decide whether or not Parliament has failed to ful a constitutional obligation, in terms of section 167(4)(e) of the Constitution. Parliament is under an obligation to act lawfully when fulfiling ts ‘constitutional obligations Parliament must, via one ofits organs, the National Assembly, “provide for ff Aq 7 ‘mechanisms - (8) to ensure that al executive organs of state in the national, 26 ar 28 29 sphere of government are accountable to it" (Section §5(2) of the Consttution). One of the mechanisms for discharging this obligation is to create procedures for the removal of a President under section 89 of the Constitution. Any temoval ofthe President under section 88 ofthe Constitution ‘must be lawful ‘When the Panel conducts an inquiry, itis fling the constitutional obligations Cf Parliament provided for in sections $5(2), and 89 of the Constitution. I it ‘conduct its affairs unlawfully and invalily, it is faling to give effect to the ‘constitutional obligations imposed on Parliament ‘The Panel has decided that | have a case to answer. The Panel is an organ of Parliament itis established by Parliament and reports tothe Speaker. Just ike Partiamentisrequled to actlawllly, the Panel must act lawful when Conducting an inquiry. The inquiry by the Panel isa frst step in the removal proceedings under section 69 ofthe Consttuton. If there is no valid report of the Panel, the second step, which isthe establishment of an impeachment committee may not be taken. The third step, namely the placement of the item forthe removal ofthe President fora vote in Parliament, may not be taken as well Therefore, a valid report isthe jurscictonal requirement for any valid Impeachment proceedings against a President. Itis submitted that the Pane! had a duty to full ts constitutional obligations by Conducting its inquiry lawfully and constitutionally. Its failure in this regard is the failure of constitutional obligations. 10 30 tis also relevant to the enquiry of exclusive jurisdiction that the conduct in issue here is my conduct as President. The Panel has relied on section 83(b) ff the Constitution, which is an obligation, exclusively imposed on the President. Oni this Court can decide whether or not | have failed to ful the ‘obligation imposed by section 83(b) ofthe Constitution 31 Itfollows that this matter fas within the exclusive jurediction ofthis Court, Application for direct acces 32 Im the event this Court were to conclude that it does not have exclusive jurisdiction as submitted above, | submit that direct access ought o be granted to this Court on the grounds set out hereunder. 33. Seation 167(6)a) of the Constitution, and Rule 16 ofthis Court's Rules, allow 2 litigant to approach this Court directy, but only when its inthe interests of justice; there are exceptional circumstances; the matter in question must be of public importance and there would be prejudice tothe public intrest, the lends of justice or good governance. 34 The question of whether itis in the interest of justice is decided on a case-by- case basis* 35. Fist, the impeachment of siting President is a matter of great constitutional significance, The President is the Head of State and Head of the National Executive. OF the several offices that the Constitution creates, itis to the § Momber of the Executive Coun for Development Planning and Local Government Geutengv Democratic Party and Others [198] ZACC 8, 1098 4) $A 17571996 (7) BCL BSS a para 3 ad ucteyv City of Cape Town and Another [2004] ZAC 4 2006 8) SA 429 (CC) 2004 (6) CLA 80S (Cc); 200d BLLR 629 (C0) ap 7 a7 38 39 " President alone that it places a direct duty to uphold, defend and respect the Constitution The removal of a President from office has significant consequences - not only fon the public's trust in that office, but also on the very functioning of the Executive branch of government Seifevidenty, the legality of any process that reuits inthe removal of the President cannot be deatt with by any court other than this Court tis for that reason that this Court has the fina say as to whether the President has filed to full @ consittional obligation. | respectfully submit that given the office in ‘question, and the constitutional consequences folowing from the Panel's {decision it is only this Court that should pronounce on the legality of the Panels decision. Second, itis a8 a result of this Courts judgment in Economic Freedom Fighters and Others v Speaker ofthe Netonal Assembly and Another [2047] ZACC 47 that the Panel was created, It would be undesirable for another Court, other than this Court, to pronounce on the legality of the Panel's processes. ‘Thi, t cannot be gainsaid that the outcome ofthis application will have far- reaching and important potical consequences forthe Republic of South Afica and allitsctizens. Therefore, the lawfulness ofthe process that results inthe removal ofthe President cannot be understated. Itis only this Cour, as the ‘apex Court ofthe land, that can pronounce, with finality, on the legality ofthe Panel's discharge ofits mandate and recommendations, 2 40 Fourth, its the fit time in our constitutions history that a Panel ofthis kind hhas ever been created. The lawluness of is processes, its rues and its decision making has never been tested. Guidance from tis Court about how the Panel isto conduct its work in the process of removing a siting President is of utmost importance. 41. Fifth, there must be finality and certainly about the legalty of the Panet’s processes. This is because of the consequences that follow from its recommendations. The county cannot afford instability in the ofce of the President. Instabiy risks destabilizing the county, least of all because an impeachment process impairs the continued functioning of government 42_tisalso for these reasons thatthe cicumstances ofthis case are exceptional Itis not every day that a siting President is under treat of impeachment. If the President is to be removed, the decisions leading up to his removal must be beyond reproach. Furthermore, the Panel in question is one of a kind ~its sole purpose is to make recommendations about whether the National ‘Assembly should embark on a fllimpeachment process, and ie for the frst time in our history that such a Panel has been constitute. 43. ‘There is urgency in resolving the issue of the legality ofthe recommendations and findings of the Panel. Any delay is harmful to the public interest and will potentially create uncertainty 44 For all these reasons | submit that itis both in the interests of justice and the public interest fr this Court to grant direct access, 13 ‘THE PANEL'S MANDATE Introduction 45 Section 89(1) of the Constitution sets a high bar for the removal of the President. He may only be removed for "a serious violation ofthe Constitution ‘or the law’ or “serious misconduct’ and then only by a two-thirds majority of the National Assembly. 146 The rules ofthe National Assembly moreover define the grounds upon which the President may be removed as follows “a serious misconduct” means “unlawful, shonest or improper ‘behaviour performed by the President in bad fath’" (my emphasis) “a sorious violation of the Constitution or the lew” means "behaviour by the President amounting to an intentional or malicious violation ofthe Constitution or the law performed in bad faith” (my emphasis) 47 As these definitions make clear, the President may only be removed for Intentional or malicious conduct in bad faith. Only deliberate misconduct can found the removal ofthe President. ‘A substantive notice of motion 148 Rule 129A provides that the process forthe removal ofthe President may only be ttiggered by @ substantive notice of motion. it must comply with the following requirements: 4 48.1 The notice of motion must be limited to “e clearly formulated and ‘substantiated charge" on the grounds specified in section 89 of the Constitution 48.2 The clearly formulated and substantiated charge must ‘ria facie show that the President committed a serious violation of the constitution or law; [or] commited a serious misconduct” as defined 48.3 The charge must be confined to the President's conduct “in person’ 48.4 The notice of motion must be accompanied by all he evidence on which 49 51 itis based, | highlight the fact that the notice of motion must be limited to “a clearly formulated and substantiated charge which... must prima faco show” that the President is guity of conduct ofthe kind contemplated in section 88 ofthe Constitution. prima facie casei, other words, a treshold requirement for uch a notice of motion, It does not get out ofthe stating blocks unless it makes a prima facie case. In terms of rule 1298, the Speaker must ensure that the notice of mation ‘complies with rule 129A, The appointment of an Independent Panel If the notice of motion meets the threshold requirements of rule 129A, the National Assembly must appoint an Independent Panel to undertake a preliminary inquiry in terms of rules 1290 to 129G. This requireme Vy 2 53 8 recognizes that, in a democratic society, the removal of a democratically elected president is a grave matter of high national importance. i is not something upon which Parliament should lighty embark. That is. why Pearlament may not embark on an impeachment process unless an independent panel has considered the evidence and concluded that there is {good cause to do so, The Pane'’s procedure is subject to the following rules: 52.1 The Panel may, in terms of rule 129G(1)(¢\) afford members of the National Assembly an opportunity to place relevant infrration before it 52.2 The Panel must provide the President all the information in termes of rule 1296(1)(6). 52.3 The Panel must provide the President with a reasonable opportunity to respond, in writing, to “all elevant allegations against him or her’ Rule 1296(1)(b) defines the Panel's mandato. It mut determine and make @ recommendation to the Speaker “whether sufcient evidence exists fo show that the President” commited a serious violation ofthe Constitution or the law or committed a serious misconduct. 1 emphasise that the Panel must determine whether “suffcient evidence exists" to show those matters. The PPane! must, in other words, exercise a value judgment. It must do so because the process forthe impeachment ofa presidents grave matter ofhigh pubic importance. The Panel must judge whether there is suficient evidence to embark on such a process. 18 ‘54 The National Assembly considers the Pane!’ report in terms of rule 1291. Hit decides to proceed with the matter, it refers the matter to the Impeachment Commitee. 55. The Impeachment Committee must ‘proceed f0 establish the veracity and, where required, the seriousness of the charges and report to the Assembly thereon in torms of rl 129M 56 The Committee reports to the National Assembly in terms of rule 1290. If its report recommends thatthe President be removed from office, the question is. putto the National Assembly fora vote. Such a resolution may only be adopted by a two-thirds majority Core features of the process 57 | emphasise the following core features ofthe process for the removal ofthe President. 58 The President may only be removed for serious misconduct committed in bad faith 59 The misconduct of which the President is accused, ie limited to “a clearly fomuleted and substentiated charge inthe orginal notice of mation. The entre process is confined tothe charge so formulated, The Panelis confined to a consideration of the charge and so is the Impeachment Committee in terms of rule 129M(1), 7 60 It isa threshold requirement that the charge “must prima facio show” thatthe President has been guily of serious misconduct. A prima facie casei, in other words, a threshold requirement for a charge. Ifit does not make a prima facie case, it does not get out ofthe starting blocks. 61. The Panels remit is to determine whether there is “sufficient evidence” to show thatthe Presidents guity of serious misconduct. requires more than «2 prima facie case. It recognises that an impeachment process is a serious ‘matter of high public importance, The Panel must assess whether there is “sufficient evidence" to justly such a process. 162 In making its assessment, whether there is “sufcint evidence” that the President is guy of serious misconduct, the Pane! must bear in mind that serious misconduct is confined to the President's deliberate personal conduct in bad faith. The Panel must, in other words, determine whether there is sufficient evidence, not merely thatthe President committed misconduct, but thathe did so deliberately and in bad faith. There cannot be sufiient evidence that the President is guity of misconduct 2s defined unless there is also ‘sufficient evidence that he acted deliberately and in bad fait. ‘THE PANEL MISUNDERSTOOD ITS MANDATE 63. The Panel considered its mandate from page 25 in paragraphs 67 to 77 ofits report. It seems clear that it misunderstood its mandate in at least two respects. 18 64 Fict, it interproted its remit, to determine “whether sufficient evidence oxists* to mean “whether there is a prima facie case against President It put it as follows in paragraph 75: “In the context ofthe scheme forthe removal ofthe President from office, we therefore construe the phrase “whether sufficient evidence exists” fo ‘mean whether, based on the information received, the President has @ case fo answer: Put differently, we construe the phrase fo require the Panel to determine whether there is @ prima facie case against the President” 65. The Panel repeated in paragraph 76 that it functions as a fiter to ensure that ‘only a motion "which establishes, prima facie, that the President has a case to answer, is considered by the Impeachment Committos™ 66 The Panel implemented this standard as appears from its final recommendation on page 82 in paragraph 264. It concluded that the Information before it“aiscloses, prima face" thatthe President may have been uity of serious misconduct. 67 The Panel was thus mistaken. It is a threshold requirement for any charge ‘against the President that it discloses a prima facie case in terms of rule 120A, ‘The Panel does not simply repeat the same requirement. It must determine Whether “sufficient evidence exists” to warrant an impeachment process, 68 The Panel's second misunderstanding of is mandate was that it overlooked the fact that “serious misconduct’ and “a serious violation ofthe Constitution or the law’, as defined inthe rules ofthe National Assembly, are confined 19 deliberate misconduct by the President acting in bad faith. The Panel did not inquire into the President's bad faith at al. t could not rationally conclude that there Is sufficient evidence of the President's misconduct without any assessment ofthe question whether he had acted in bad faith ‘THE PANEL'S EVALUATION OF THE EVIDENCE ‘The Pano! approach 69 In terms of Rule 129G(1)(b) the Panel was required ‘[to) consider the ‘preliminary enquiry relating to the motion ... and make a recommendation to the Speaker... whether sufficient evidence exists to show that the President |. committed a serious violation of the Constitution or the law; fi. or commited a serious misconduct; o. 70 | am advised that this required the Panel to do three things, namely: 70.1 determine whether the charges, if proven, would establish a basis for Impeachment under section 89(1)(a) or (b) of the Constitution 70.2 establish, as a matter of fact, whether there is evidence te support the charges, | am advised that over and above establishing as a matter of fact whether evidence exists, the Panel is also required to consider the ‘admissibility of such evidence and its probative value; and 20 70.3 determine whether the evidence is sufficient — Le., whether if the ‘evidence was established, it would be sufficient to establish the charges at the relevant standard of proof in a section 89 impeachment enquiry. 71, What then was the Panel meant to make of my submissions and the evidence | provided? 714 am advised that my submissions and evidence | provided could not and should net have diverted the Panel rom the enquiry outined above. The Panel ought to have considered my explanation and the evidence | provided only ital three questions referred to above were answered in the affimatve, tought to have determined whether (a) the explanations andlor evidence provided undermine some of the evidence placed before it to support the charges and (b) whether whatever evidence is loft undisturbed would stil nevertheless be sufficient to prove the charges, 71.2. The enquiry does not start with a presumption that the charges are established and then move on to considering the explanation andlor evidence provided by the President fo determine whether it would be sufficient to defeat the charges. 72 Respectfully, the Panel misconstrued the enquiry it was supposed to conduct: 72.1 The Panel determined that it was not required to conduct the enquiry coutined above: 2 “itis inconceivable thatthe National Assembly would have given both the Pane! and the Impeachment Commitee the same ‘powers, namely, fo recommend whether the President is in fact

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