Flawed report gives ANC MPs an alibi to vote against impeachment. But there are other ways to hold Ramaphosa accountable

On Tuesday 13 December 2022 members of the National Assembly will vote on whether to proceed with a full inquiry into the possible impeachment of President Cyril Ramaphosa. Because the ANC occupies 230 of the 400 seats in the NA, the vote is likely to favour Ramaphosa.

ANC MPs have a long and lamentable history of shielding its presidents from accountability by the National Assembly (NA), and in recent weeks several commentators have preemptively lambasted ANC MPs for planning to protect President Cyril Ramaphosa in the same way they, for many years, protected a constitutional delinquent and scoundrel like Jacob Zuma. (ANC MPs voted against several motions of no confidence in Zuma, and also voted against an impeachment motion against him.)

While there are some exceptions (the Standing Committee on Public Accounts does relatively well in holding members of the executive accountable, despite the fact that a majority of its members are from the ANC), ANC MPs also tend to be less robust than members of opposition parties in holding other members of the Cabinet accountable to the NA.

Ironically, the bitter factional battles inside the ANC, and the failure of Ramaphosa to snuff out dissent within the party (he is not nearly as ruthless a politician as Zuma), have probably been good for accountability, as rebel MPs have used their power to embarrass members of the Cabinet aligned to an opposing faction.

But it is not surprising that ANC MPs protect their leader, and are likely to do so again on Tuesday — no matter how bad the leader is. In fact, the entire system makes it very difficult for MPs from a governing party to hold members of the executive (and thus senior party members) to account.

As I have written before, ANC MPs (but also MPs from other parties) are subject to strict party discipline and if they are instructed to toe the party line and do not, they run the risk of losing their seat and hence a well-paying job.

In United Democratic Movement v Speaker of the National Assembly (the secret ballot judgment), the Constitutional Court recognised that MPs — especially MPs from the governing party — who are required to hold the president and Cabinet accountable might be torn between their obligation to follow the party line, on the one hand, and their obligation to hold the executive accountable, but rather optimistically held that “in the event of conflict between upholding constitutional values and party loyalty, [MPs’] irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”

Because MPs are subject to strict party discipline and can lose their jobs if they follow their conscience (if any), ANC MPs were always going to vote to protect the president. This is why ANC MPs who on Tuesday vote to protect President Ramaphosa would almost certainly have done so even if the report of the independent panel was flawless, and even if Ramaphosa had not approached the Constitutional Court to have the report reviewed and set aside.

I would be surprised if even the handful of ANC MPs who have publicly sided with the State Capture faction of the ANC, and really want to get rid of Ramaphosa, will vote in favour of the motion. Why risk your job by standing up for your principles instead of following party orders when you can’t remember what those principles are or if you ever had any?

But I would think that the ANC MPs who vote to protect President Ramaphosa from accountability on Tuesday may have a much stronger case for following the party line than they would have had if the report of the independent panel had not been so badly drafted (Prof Jonathan Jansen might have exaggerated slightly when he wrote that if a group of his honours students had written the Phala Phala report, he would have failed all of them and barred them from future studies, but it is difficult to argue with the claim that the report is not up to the standard one would expect of a panel chaired by a former Chief Justice.)

Such ANC MPs might well argue that by voting to protect President Ramaphosa they are upholding both party loyalty and constitutional values. This is because a president can only be validly impeached if, as a matter of fact, the president made himself guilty of a serious violation of the Constitution or the law.

If the impeachment process goes ahead and the President is impeached, and the facts do not support a conclusion that the President was guilty of a serious violation of the Constitution or the law, the impeachment would be invalid. The Constitutional Court confirmed this in Economic Freedom Fighters and Others v Speaker of the National Assembly (the impeachment judgment), stating that:

A removal of the President where none of those grounds is established would not be a removal contemplated in section 89(1). Equally, a process for removal of the President where none of those grounds exists would amount to a process not authorised by the section.

The problem is that the panel’s report inexplicably failed to consider the quality and admissibility of the evidence, and then made things worse by not considering whether this evidence provides any proof that any breach of the Constitution or the law was of a serious nature.

To be fair, part of the problem is that the impeachment motion was brought prematurely, at a time when other investigations were still ongoing, and not all the evidence had been uncovered. Had the ATM waited for the Hawks and the Reserve Bank to complete its investigations, there may well have been a much stronger case to be made for impeachment.

This does not mean that ANC MPs will, in my view, have a leg to stand on if they protect the President from other forms of accountability or if they continue to block impeachment in the event that sufficient evidence of a serious violation of the Constitution or the law is uncovered.

One must remember that while impeachment is the most radical mechanism at the disposal of the NA to hold the president accountable, it is a mechanism that will seldom be available to the NA because there would seldom be sufficient evidence before it to conclude that the President is guilty of a serious violation of the Constitution or the law.

In such cases, the NA nevertheless has a constitutional duty to hold the President accountable. The most effective way to do so in the Phala Phala case would be for the NA to establish an ad hoc committee to look into the matter and to try and gather as much evidence as it can.

Such a committee would have vastly superior powers than the independent panel had, will be able to seek evidence and call witnesses to establish the facts. Such a committee would also have the power to request president Ramaphosa to testify before it, to submit all relevant documents to it, and to answer questions on the Phala Phala scandal in person. If the president refuses to do so, the committee would then be able to summon the president to force him to appear before it.

When announcing that the ANC NEC decided that ANC MPs should vote against the establishment of an impeachment committee, the NEC also said President Cyril Ramaphosa should still be held accountable for the allegations emanating from the Phala Phala robbery in other investigations. ANC MPs who take their accountability duties seriously should therefore insist that the NA launches its own investigation by establishing an ad hoc committee to look into the matter.

Moreover, if the impeachment motion is killed off in the vote on Tuesday, opposition parties will, for once, be able to do more than merely denounce the ANC MPs for protecting the president from accountability, by also demanding that the NA establish an ad hoc committee to look into the scandal and uncover the truth.

As such a committee will be established exactly to do what the independent panel was unable to do — to establish as many of the facts as possible — and as this will be the most effective way for the NA to hold the President accountable in the absence of sufficient evidence to start an impeachment process, such a call by opposition parties will in effect call the bluff of the ANC NEC, who surely do not actually believe that the president should be held accountable by anyone, least of all by its own MPs in the NA.

Moreover, as the ANC is never going to vote to impeach the leader of their party, no matter how serious his or her breaches of the Constitution and the law may be, an ad hoc committee process may well be more effective in holding the President accountable than the impeachment process, which will fail because of the ANC’s superior numbers in the NA.

I advance this proposal to establish an ad hoc committee to investigate the scandal because I worry that too many people do not realise that the choice before the NA is not as stark as they may think. The choice is not between accountability through impeachment, or no accountability at all.

One can, for the moment, hold the position that impeachment is premature and vote against the motion to proceed, while still insisting that the NA has a constitutional duty to hold the President accountable, and that the most effective way to do so would be by establishing an ad hoc committee with a mandate to investigate the matter and to call Rampahosa to account fully for what happened.

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