LAWSON NAIDOO: Should Ramaphosa stay as president while parliamentary process unfolds?

Whatever the Phala Phala impeachment saga may be, it is not a constitutional crisis. Lazy commentary may have given rise to this perception without any attempt to explain why that may be the case. On the contrary, it is the very fact that the constitution behoves the National Assembly to exercise oversight of the president that led to the establishment of an independent panel to determine whether Cyril Ramaphosa had a case to answer in relation to the theft of foreign currency from his farm.

That the National Assembly has not used this power in the past — there were unsuccessful attempts to remove Jacob Zuma as president using the provisions of section 89 of the constitution — simply means we have not traversed this path before. The National Assembly put the necessary rules in place following a judgment of the Constitutional Court after opposition parties challenged the failure of the assembly to establish a process to impeach Zuma.

What happens next is in part relatively straightforward. Former chief justice Sandile Ngcobo’s panel report has been handed to the speaker of the National Assembly, and it is the assembly that must decide the next steps. The report is a recommendation to the assembly; it is not binding. The assembly may opt to accept or reject the report.

The National Assembly elects the president, and the constitution also gives the assembly the authority to remove or impeach the president for “a serious violation of the constitution or the law, serious misconduct or inability to perform the functions of office”. Although the assembly is an inherently political forum, when it comes to impeachment the Constitutional Court has ruled that it must first undertake a factual enquiry of whether one of the grounds for removal exists. The rules of the assembly give effect to this by providing for the establishment of an independent panel to assess whether “sufficient evidence” of a ground for removal exists.

These rules are similar to those that apply to the removal of a head of a Chapter 9 institution, with some notable differences. The preliminary enquiry for a Chapter 9 head must determine whether a “prima facie” case exists. It is arguable that the assembly deliberately chose a higher evidentiary standard when it made rules for the president and required that “sufficient evidence” must exist. The rules correctly deter frivolous motions for the impeachment of the head of the national executive and head of state, especially as it may lead to the political instability we are currently experiencing.

However, the rules may also have set the panel up to accomplish an impossible task. How does the panel determine whether “sufficient evidence” exists when it is deprived of the usual tools to test evidence? It cannot hear oral evidence, cross-examine witnesses, or even call for further documentary information. It operates with its hands firmly tied together.

While it is not the aim of this article to reflect on the correctness of the panel’s report, there is a view (among many who have studied the report) that it is flawed, both legally and factually. The president has now confirmed that an application to the Constitutional Court is imminent. This will affect the next steps in the parliamentary process. The assembly is scheduled to debate the panel’s report on Tuesday, just before it adjourns for the year. It is possible that the speaker could defer to any legal action and postpone the debate, to the undoubted chagrin of opposition parties.

Following the decision of the ANC’s national working committee to rally behind the president (and assuming that the national executive committee [NEC] endorses this approach), one can safely assume that the National Assembly will debate the report and reject it using the governing ANC’s parliamentary majority. This is the strategy the party adopted when Zuma previously faced motions of no confidence and removal proceedings.

However, the cleavages in the factions of the ANC have been widened by this scandal, especially as its national conference is less than a fortnight away, so a unified stance at the level of the NEC or parliamentary caucus may not be so easy to pull together. This is the political mess we are in. The contestation for power in the governing party has been exacerbated, with Ramaphosa’s enemies in full cry, smelling blood — it is a party in open warfare.

Should the ANC succeed in dismissing the panel’s report that would be the end of the matter before parliament, though it is almost certain that some opposition parties will challenge that decision in the courts. This highlights that the rules for the impeachment process may require review and some refinement. Despite several calls for the president to fall on his anti-corruption sword and resign, the constitution and the rules do not necessarily anticipate this.

The president’s position is not untenable merely on the basis of a preliminary report, flawed or not. The rules provide that the National Assembly may proceed to establish an ad hoc committee to fully investigate the complaint against Ramaphosa and comprehensively test the allegations through calling witnesses armed with the power of subpoena. Only then can the assembly remove him from office by passing a resolution with a two-thirds majority.

Should Ramaphosa remain as president while this process unfolds? Were he to resign and then later not be removed from office by the assembly, he is very unlikely to be able to be re-elected as president, and would be irrevocably prejudiced. It may therefore be preferable for the president to take a temporary leave of absence once the assembly decides to establish an investigatory committee, with an acting president installed as envisaged by section 90 of the constitution.

The assembly must also impose strict time frames on its committee to complete its work within a specific period, say 90 days, so as not to leave the president and country in limbo. This would accord with section 237 of the constitution, which requires all constitutional obligations to be performed diligently and without delay. The charade the section 194 committee regarding the public protector has become must be avoided at all costs.

Ultimately, the questions relating to the theft at Phala Phala need to be answered, and the president held accountable. Matters are not made any better by the silence of the various law-enforcement agencies and oversight institutions that are investigating the matter and have as yet shed no light on the saga. Whatever the outcomes of these investigations are, we can only hope they are made public sooner rather than later, as the stability of our political order and ailing economy depend on them.

• Naidoo is executive secretary of the Council for the Advancement of the SA Constitution.