President Cyril Ramaphosa.
After discussing it “extensively, fully and frankly”, the national executive committee (NEC) “resolved that the ANC will vote against the adoption of the Report of the Section 89 Panel, given the fact that it is being taken on review”.
Issued on 5 December 2022, the statement suggested a level of determination, on the part of the ruling party, to stand behind its president Cyril Ramaphosa. Some social media statements from Ramaphosa’s fervent supporters even carried a sense of outrage. They likened the Phala Phala revelation to an attempt at a coup by criminals intent on aborting a pending prosecution.
For people who feel attacked, and justified in fighting back, their defence strategy seems pretty flimsy. While Ramaphosa launches legal action, parliament has scheduled a session on Tuesday to vote on whether to initiate an impeachment process. This parliamentary vote will be taken on the basis of a report Ramaphosa has declared flawed and, as a result, is subject to a court review. If the soundness of the report is still being evaluated by courts, why then is parliament using it to decide the fate of the president?
Parliament’s chief legal adviser has had to contend with the above question as the house plans for the debate. Advocate Mushahida Adhikari says the law allows parliament to get on with its business, even though the report is under legal review. So, as long as the report hasn’t been set aside, it remains valid.
Though supported by the law, however, the National Assembly’s own rules, especially rule 89, impose some limitations on the treatment of parliamentary matters that are before courts: “… where a matter under discussion relates to a pending court case, a member is only restricted from commenting on the merits of the matter”.
This throws up a practical conundrum, as the chief legal adviser notes: “… for the question to be decided by the National Assembly, it is difficult to avoid reflecting on the merits of a case”.
It’s noteworthy that the National Assembly did not adopt rule 89 lightly. It was born out of respect for the separation of powers. Courts must hear and decide cases independently without being influenced by parliamentary hearings or outcomes.
But, it is quite likely that, in this case, MPs will comment on the merit of the report and thus violate their own rule. While admitting this possible prejudice, or influence, the parliamentary legal advice also points to a possible recourse — a court interdict against parliament discussing and adopting the report pending the constitutional court ruling.
One can’t imagine Ramaphosa’s lawyers are unaware that they can interdict the parliamentary hearing. So why aren’t they? Is it because they are confident that the ANC parliamentary contingent, all 230 of them, will vote against the report as instructed by the NEC?
This expectation is not misplaced. Party discipline, as we’ve repeatedly seen, rules in proportional representation systems. This is because MPs are not directly elected to parliament but are picked from a party list. They’re more party representatives than they are voters’ representatives.
In turn, their independence to vote differently, especially where they feel the party is wrong, is not only limited but is also risky. They might not be considered for re-appointment in the next election or might be put through a disciplinary hearing immediately.
Limitations notwithstanding, ANC MPs have defied their party instructions on voting in the past. The first and most memorable instance was in 2017 on the vote of no confidence against Zuma. The former president faced multiple motions. He was probably the first president, since 1994, to face a motion of no confidence.
The 2017 motion was his eighth. Voting on all the previous motions had been done through open ballot. That explains why there were hardly any defiant MPs or abstentions in the ranks of the governing party. This changed when Baleka Mbete, the speaker at the time, decided to switch the voting procedure from open to secret ballot.
Mbete’s switch followed a court ruling affirming that the decision on what voting procedure to adopt was entirely hers. She had previously resisted calls for a secret ballot but things had changed in 2017. Her switch had something to do with her presidential ambitions. Zuma appears to have made an undertaking that he would support her bid. But, he later flipped and supported his ex-wife, Nkosazana Dlamini-Zuma, instead.
Mbete did not take kindly to the betrayal and the secret ballot was her revenge. It meant how each MP voted would not be known. Those who wished to defy their party could do so, without attracting retribution. And, they did. Though the party had the majority of 249 MPs, Zuma survived the motion by a slim margin of 21 votes, 198 to 177 votes — way below their entire contingent.
The dissent was indicative of the schism within the ranks. Zuma’s impropriety had divided the party. Some ANC MPs were impatient to have him gone, while others, though also unhappy, baulked at removing their own president on the initiative of the opposition parties.
That the divisions deepened after Ramaphosa’s victory in 2017 meant that some MPs were always likely to defy voting instructions from their own caucus. The subsequent vote over whether to impeach the public protector, Busi Mkhwebane, affirmed how determined rival MPs were to defy their party leadership in order to undermine their opposition. Of the 230 ANC MPs, only 168 voted in favour of the motion to impeach Mkhwebane. The rest of the votes that made up the 275 votes approving the impeachment came from the opposition benches.
There are no grounds for Ramaphosa, therefore, to feel confident that he’ll survive the vote on Tuesday. In the presence of differences, MPs have previously broken ranks with the party line. And, today there are not only differences but also intense rivalry with the ANC’s elective conference a few days away.
The decision to initiate impeachment against Ramaphosa would boost his key rival, Zweli Mkhize. Mkhize has already expressed his disapproval of the decision-making process and the decision itself. He says it was taken “mafia style” and those who had a different view were overlooked or simply shut down.
Mkhize intends to vote against the NEC decision and wants Ramaphosa to be subjected to an impeachment process. He stated strongly: “There was a decision to establish an independent panel — and then, if there is that, the next step would be an impeachment. Why do we need to circumvent this process? I believe that the next step, if people think there is a case to answer, the president must then be allowed in that process [impeachment committee] to produce the evidence and close the issue.”
An impeachment process would boost Mkhize’s presidential ambitions. He’d spin it to mean that Ramaphosa was potentially guilty of the charges levelled against him and ought not to stand for the presidency of the party. That argument would be technically incorrect, of course, for the party’s own rules only bar those who’ve been convicted or face legal charges.
But, it will be an argument, nonetheless, with which Mkhize can attempt to persuade delegates. It gives him a fighting chance at the conference. Although falling far behind Ramaphosa, who received 2 037 nominations, Mkhize had a decent showing with 916 nominations. Whether that number indicates sufficient strength for him to sway his supporters to vote alongside him remains to be seen.
What is clear is that Ramaphosa’s success on Tuesday is not guaranteed. The ANC has a slim majority of 30 votes. Only a few opposition parties, with a total of roughly five votes, have pledged to vote against initiating impeachment. This means that Ramaphosa shouldn’t expect rescue from the opposition, should he be abandoned by members of his own party.
Why Ramaphosa has chosen to expose his presidency to more risk, instead of interdicting the Tuesday meeting, is beyond me. Perhaps he reckons that the constitutional court will ultimately exonerate him, as and when it rules.
That may well be the case. But the impeachment process will damagethe standing of the president. Pressure will pile up for him to resign, making his job somewhat difficult.
It doesn’t seem to have dawned on Ramaphosa that he’s in the midst of political warfare. He has formidable enemies, intent on cutting his presidency and agenda short. His defence should be frontal and full-blown, not delivered in half measures.
An interdict against the parliamentary hearing is the surest way of protecting himself, and his presidency, against untested allegations. It will deny his opponents a possible avenue to taint him and mobilise for his possible ousting.
Only after the constitutional court has ruled will it become clearer if the findings of the panel of experts satisfy the threshold of impeachable offences. Until it rules, Ramaphosa will have to make do with praying that his party protects him. If they fail, the probable damage from the theatre of the impeachment process might be difficult for him to undo.
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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