President Cyril Ramaphosa. (Delwyn Verasamy/M&G)
How to prevent, or punish, the abuse of power is a question that is old as democracy itself. The quest for such a mechanism was necessary for a democratic order. After all, democratic societies dearly embrace the principles of equality and the exercise of executive power for the public good.
Any abuse of power, either for oneself or to favour one group over others, is an attack on the collective good. For a president, it is the ultimate betrayal of his or her duties both as the embodiment of the public good and its supreme guarantor.
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An impeachment, therefore, is the strongest form of punishment that democracies could devise to register their unequivocal disapproval. In addition to vacating office, the incumbent even loses the benefits that are normally given to former presidents and is barred from occupying any public office.
Such severe punishment is meant to convey the gravity of the betrayal of the oath of office. Although adamant to prevent and punish the abuse of executive authority, democratic societies were also alert to the vulnerability of the same instrument to abuse.
This alertness sprang out of the very nature of the democratic system, which is an adversarial one, characterised by various groupings with opposing interests and visions of society. Some are more determined, if not fanatical, to have their own worldview and interests prevail over others.
Impeachment can easily lend itself, as the legal historian Theodore Plucknett wrote in 1941, to be the most “decisive weapon in political warfare”. Consider, for instance, the early debates among the founders of the United States of America as they were framing their constitution in the late 1700s.
James Iredell, who was one of the participants in the ratification of the constitution, writes Michael Gerhardt, warned “that the purpose of impeachment was not to punish a president for ‘want of judgment’, but to rather hold him responsible for being a ‘villain’ and ‘wilfully’ abus[ing] his trust”.
Edmund Randolph, another participant on a different occasion, pointed out that, in considering an impeachable office, the legislators should distinguish between an action that “resulted from a wilful mistake of the heart, or an involuntary fault of the head”. Randolph then stressed, as Gerhard notes, “that only the former constituted an impeachable offence”.
In refining what exactly an impeachable offence is, our own legislators also appear to have been careful to distinguish between actions that resulted from pure malice and ill advice or a different interpretation. They did so by explaining the meaning of the phrases, which are contained in the Constitution: “serious violation of the Constitution or the law” and “serious misconduct”.
The report of the panel of experts, chaired by retired former chief justice Sandile Ngcobo to determine whether Cyril Ramaphosa should face an impeachment process, reminds us of the guidelines: a “serious violation of the Constitution or the law” means “behaviour by the president amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith”; and “serious misconduct is defined to mean improper behaviour performed by the president in bad faith”.
Though the rules appear to be providing some guidance, the limited powers of the panel, however, seem to have predisposed it to deliver a highly questionable outcome. Granted, its enquiry was complicated by the nature of the problem it was meant to investigate.
The burglary at the president’s farm, Phala Phala, happened two years ago; involved numerous individuals of varying characters and multiple public institutions even from across the country; and the information about the burglary and its aftermath surfaced in a dubious manner from an equally dodgy individual, former spy boss Arthur Fraser. The subject of the inquiry, therefore, is a complex web.
However, the panel was ill-equipped for the complexity of the matter. It had no powers to subpoena anybody; had no resources to authenticate what was presented before it; was ignored by individuals and institutions with pertinent knowledge of what took place at Phala Phala and in the immediate aftermath, and had to rely largely on hearsay information presented before it and could not orally question those who submitted the information.
Equally noteworthy is the manner in which the panel interpreted the hearsay information. It gives the hearsay information the benefit of doubt — that it is probably true — while casting doubts on Ramaphosa’s version of what happened.
Consider, for instance, the panel’s conclusion about the origins of the stolen money. The report simply pooh-poohs that there’s a Mr Hazzim who came to buy animals in cash, which was the money that the president says was stolen. The panellists don’t believe that the buyer simply showed up on Christmas Day 2020 unannounced; and doubts that the receipt of the transaction was even authentic. The insinuation is that the receipt is fake.
In fact, the panellists doubt that Phala Phala is even a legitimate business. This doubt is informed by their inability to determine if the farm is VAT registered. It’s not clear in the report if the panel even tried to verify whether the farm is VAT registered. Having cast all these doubts, the report then goes on to suggest that Mr Hazzim, simply doesn’t exist. He’s a fictitious figure, that Ramaphosa simply made up.
On its own, therefore, the panel could not confirm whether a Mr Hazzim exists or Phala Phala is VAT registered. It’s not clear if this failure stems from a lack of capacity or disinterest. One accepts that it would have required more effort and time to track the existence of the buyer than was possible for the panel. As for the tax registration, surely it could have verified the status. The fact that the panel didn’t, but was comfortable casting doubts, comes across as scornful.
The distrust of the president’s version, in fact, is visible across the report. Two issues are instructive of this. Firstly, it comes up over the issue of how involved Ramaphosa was in the business, and whether his involvement transgressed the prohibition on public officials from being involved in any other work.
Ramaphosa contends that he understands the prohibition to relate to paid work. He appears to have maintained an interest in the farm, but that for him didn’t constitute paid work. This is how he understands the prohibition.
The panel, however, disagrees and states that the restriction not only applies to paid work. Rather, it restricts all forms of involvement, paid or otherwise, and then concludes that Ramaphosa was guilty of “a serious misconduct”.
In reaching this conclusion, the panel appeared closed or unwilling to even entertain the possibility that Ramaphosa could have interpreted the law differently. Is that really not a possibility?
Another issue that illustrates that the panel appears to believe that Ramaphosa’s actions were impelled by malice, or intention to break the law, involves the investigation by the head of the presidential guard, Wally Rhoode. The panel concluded that the failure to report the burglary at a police station shows intent to conceal the crime.
Ramaphosa counters, however, that his understanding is that Rhoode, who holds the rank of major general, is the police. Once he had reported the burglary and theft to the major general, he expected him to report and investigate the crime. And, it turned out that Rhoode did report the crime to the deputy commissioner of the South African Police Service, Lieutenant General Sandile Mfazi.
Is it unreasonable to have expected Ramaphosa to believe reporting the crime to a major general of the police was actually not reporting it? That doesn’t strike one as an unreasonable understanding. If his understanding is wrong, is it really too far-fetched to imagine that it was an error in understanding, not an intentional act to conceal the crime?
In raising all these questions, one is not challenging the competence, or intention, of the panellists. The weaknesses of the report may well be a reflection of the panel’s limitations. If the panel had powers to subpoena evidence or witnesses, and received collaboration from the Hawks, it could have reached a less questionable outcome.
One, of course, understands that theirs was simply a preliminary investigation to determine if there was sufficient evidence to initiate an impeachment process. But, even that low requirement still has to come up with sufficient evidence that there may be a smoking gun. Was it not open to the panel to say that the evidence before it was inconclusive?
As it stands, Ramaphosa seems to have become a suspect on the basis of the old, medieval legal principle of “conviction by notoriety”. The panel appears to believe that he was already tainted, therefore, didn’t attach any credence to his testimony, and simply believed the hearsay of his accusers.
It’s not surprising that Ramaphosa is taking the panel’s report on review. It would be illogical of him to resign nor is he required to. The panel’s recommendation is not an instruction to vacate office, but simply to enable parliament, if it so wishes, to initiate an impeachment process.
The report is simply riddled with loopholes, which a court may possibly clarify. The recourse to the court is yet another indication of the weaknesses inherent in an impeachment process. It pretends to be a legal process, when it is fundamentally a political process, a “weapon in political warfare”.
There’s no attempt by Ramaphosa’s opponents at fair play — they are driven by the intent to oust the president. And, the panellists had the unenviable task of trying to evaluate whether or not the president breached any laws while seemingly restrained from applying full legal standards in their evaluation. Yet, they’re expected to deliver a legally sound outcome.
A court may well set the report aside. In doing so, it will hopefully unearth all the relevant facts. There are many questions that remain unanswered here. If the court is unable to provide all the answers, one hopes it will recommend a remedy, or a route, towards the truth.
Mcebisi Ndletyana is a professor of political science at the University of Johannesburg and co-author of a forthcoming book on the centenary history of Fort Hare University.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
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