Photo: GCIS
NEWS ANALYSIS
There is no doubt the allegations around the 2020 theft of a large sum of money from President Cyril Ramaphosa’s Phala Phala game farm are serious and the fact that he has not given a sufficient explanation of what happened is troubling.
It is, therefore, no surprise that, in frustration, opposition parties — led by the African Transformation Movement — have gone for the “nuclear option” and filed a motion calling for Ramaphosa’s impeachment.
To kick off the proceedings, the grounds of impeachment must be established through a legal process led by an independent panel. Although the rules of parliament allow for a judge to be a member of this panel, it does not seem prudent to have one participate at this stage.
After the Public Protector’s 2014 report, which found exorbitant security upgrades to former president Jacob Zuma’s Nkandla home had improperly benefited him — and that he should repay the state for some of these — a monumental battle began.
Opposition parties, primarily led by the Economic Freedom Fighters (EFF), demanded that he pay back the money immediately. But, despite their vociferous protests in the parliamentary chamber, the majority ANC was adamant that Zuma should not pay a cent.
When the EFF called for Zuma’s impeachment for violating the law and his oath of office, speaker Baleka Mbete — also a member of the ANC — took the position that Zuma could not be impeached because there was no mechanism to do so. The EFF then approached the constitutional court to force her hand.
In EFF vs Speaker, the constitutional court found that the speaker had failed to comply with section 89 of the Constitution by not establishing a clear process for impeaching the president. It ordered parliament to develop rules for impeachment that included a preliminary inquiry to establish the grounds of impeachment.
When these grounds were established, the matter would then go to a vote in the national assembly on whether the president should be removed from office.
In complying with the judgment, parliament amended Rule 129 to provide for an independent panel made up of legal experts, which can include a judge. The panel would conduct a preliminary assessment of whether, on the available evidence, grounds for impeachment had been established.
Although the constitutional court has recently emphasised in Democratic Alliance vs Public Protector — a case dealing with the rules for the public protector’s impeachment — that the role of the judge on the independent panel is to give non-binding advice, it is doubtful there is a need for one.
In respect of the Phala Phala allegations, in particular, it would be best if judges were not involved in the process because the probable political fallout might pose a risk to the reputation of the judiciary.
In terms of parliament’s rules, the role of the independent panel is to conduct a preliminary inquiry into the impeachment motion.
Based on the information presented to support the motion, the independent panel must make a preliminary assessment of whether there is prima facie evidence to show that president has (a) committed a serious violation of the Constitution or law, (b) committed a serious misconduct or (c) suffers from an inability to perform the functions of office.
The task of the panel is therefore simply to apply skills of forensic analysis and legal reasoning to conclude if there is evidence to show the grounds impeachment have been established and recommend this to the speaker (within 30 days).
The rules require the panel to be made up of South Africans “who collectively possess the necessary legal competence and experience”.
Although judges have spent decades applying these advanced skills of legal analysis and reasoning, these skills are not exclusively found in the judiciary. One of the few silver linings of the nightmare that was the state capture period is that South Africa now has a wealth of forensic investigative skills.
In the past decade, lawyers have had to sharpen their knowledge of money laundering, tax evasion, fraud, corruption and illicit cross-border money flow. All this means that many other lawyers — be they attorneys, advocates or prosecutors — qualify to be part of the independent panel.
Indeed, the rules themselves understand this possibility by making the addition of a judge to be discretionary — parliament may include a judge as part of the panel, however, it is not mandatory that they do so — otherwise the wording would be “must”.
The most plausible reason a judge would be included on this panel would be to lend the prestige and status of judicial office to what is essentially an extremely fraught and divisive political process.
Whatever the outcome, its legitimacy will be clothed in judicial robes, whose coercive force is usually deployed by the judicial branch of government, which is admired for its independence.
Judicial legitimacy is a scarce currency that needs to be used sparingly. There is no compelling reason for it to be deployed in the task of the independent panel.
In fact, by judges participating in the panel on the Phala Phala allegations, there is far more for the judiciary to lose than to gain.
Senior advocate Jeremy Gauntlet described the 2017 ANC electoral conference season as a “delicate time in a dangerous year”. That description seems apt for 2022 as well.
It would be naive to believe that the Phala Phala impeachment motion is disconnected from this year’s ANC’s electoral conference, much as it might be a legitimate exercise of parliament’s executive oversight powers over the president.
In respect of the Phala Phala allegations against Ramaphosa, the African Transformation Movement’s Vuyo Zungula, who initiated the impeachment motion, has already indicated that anything short of the independent panel finding that there are credible grounds for impeachment would be yet another example of the president being given a free pass.
In the fraught political climate, there have been numerous baseless allegations that the judiciary is somehow sympathetic to Ramaphosa. Zungula himself has revived the debunked myth that there are judges on the president’s payroll through the so-called CR17 bank statements.
There is a distinct difference between judges who are still in active service, hearing court cases daily, and those who have retired. Even the ethical rules of the judiciary are geared towards ensuring that judges can adjudicate active cases.
These ethical rules are more permissive when it comes to retired judges because there is an understanding that they might be called upon to perform extra-judicial functions such as chairing public inquiries, doing private arbitrations or taking on academic work.
But when it comes to a fraught political process, such as impeachment, the concrete distinction between sitting and retired judges fades in the public eye. It’s probable that even retired ones would be seen as the judiciary participating in a politicised process.
Considering all these factors, it seems far more judicious for judges to avoid being entangled in the Phala Phala shenanigans.
So, what is to be done? The speaker and the chief justice must protect the judiciary.
Although opposition parties this week nominated retired judges to be part of the independent panel, there is still opportunity to exclude them from this process.
Rule 129E (2), reinforced by the DA vs Public Protector case, gives the speaker complete discretion to decline the nomination of any person but only after having giving due consideration to it.
If that fails, it then falls on Chief Justice Raymond Zondo to either counsel the speaker against appointing a judge to the panel or to withhold his consent.
Rule 129E (3) requires the speaker to appoint a judge to the panel in consultation with the chief justice. That means such an appointment must be a joint decision by both the speaker and the chief justice.
The speaker’s and the chief justice’s actions in declining to appoint a judge onto the panel would be a means to protect the independence, impartiality, dignity and effectiveness of the judiciary, as required by section 165(4) of the Constitution.
The judiciary is already under strain from dealing with politically charged cases that come before the courts, in what some call the “judicialisation of politics”.
It does not need more strain, especially from issues that should properly only be before parliament. This would probably be the proverbial last straw on the camel’s back.
Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town law faculty.
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