To remove a sitting President is a drastic step for any democracy.

He or she has been chosen to serve in high office through an election process, and so for him or her to end their term prematurely must be on the sturdiest of footings so as to ensure maximum legitimacy in the constitutional process and so as to not risk undermining public confidence in the democracy.

Accordingly, the integrity of the impeachment process is of paramount importance.

There can be no weak or broken links. Every single one of the steps must be impeccably executed if the public is to be able to trust the process and, thereby, bestow it with the necessary and appropriate legitimacy.

Unfortunately, the Independent Panel has failed to deliver a report of the necessary impeccable quality and credibility. 

Hence, Ramaphosa should certainly not resign because of the report of the Independent Panel, which is legally flawed. Here’s why:

First, because of the overriding constitutional scheme. Since removing a democratically elected president is a very big deal. An impeachment process should only get off the ground if there is good reason for it to do so.

Hence, the carefully worded rules that Parliament has put in place. These establish a three-phase process. To avoid egregious or vexatious impeachment processes, Parliament wisely decided that there should be a preliminary investigation by an independent panel of three fit and proper people to decide if there is sufficient evidence of a serious violation of the law by the President and/or serious misconduct.

While there may be other grounds that render it vulnerable to judicial review, such as whether the panel exceeded its authority by considering evidence and matters that went beyond the “tramlines” of the original impeachment motion tabled in Parliament, there is one defect of fundamental importance.

What was the core legal test that the panel needed to apply? The rules say “sufficient evidence of a serious violation of the law or serious misconduct” (in contrast, as the panel notes, to the process in the case of the impeachment of the Public Protector where the rules expressly use the phrase “prima facie”). In my view, “sufficient evidence” is a higher test than “prima facie evidence”. 

Despite the difference in the words used in the rules for the impeachment of the President, the panel chose to interpret their core task as being to establish if there is prima facie evidence.

Regardless, the panel misdirected itself because having opted to interpret the legal test as “prima facie” rather than “sufficient evidence” it then oversteps the line. At paragraph 71 of the report the panel essentially says that it has no power to test the veracity of the evidence or, therefore, to make any firm findings against the President, since that is the responsibility of the full impeachment process in Parliament.

Yet, that is precisely what the panel then proceeded to do – to make very serious findings against the President, on the basis of limited, untested and largely hearsay, evidence.

Read in Daily Maverick: “In the eye of the storm: Inside the report that might sink Cyril Ramaphosa”

Read in Daily Maverick: “Ramaphosa should jump at the chance to clear his name before an impeachment inquiry — if he has nothing to hide”

Read in Daily Maverick: “Despite Arthur Fraser’s evidence labelled as ‘hearsay’, the spymaster checkmated Ramaphosa”

It is to the National Assembly, and the National Assembly alone, that the power is given to make a finding on the merits. As the report points out (at paragraphs 70 and 75), only the parliamentary ad hoc committee (stage two) can determine whether the President is “guilty” of a serious violation or serious misconduct.

To elevate the preliminary assessment of the panel to a substantive finding on the merits would be to make a mockery of the entire process for impeachment cases as defined in the newly constructed rules adopted by the National Assembly for this purpose.

To do so would create a completely untenable and destabilising situation where a President would be called upon to resign under the guise of impeachment in every case where the evidence presented by the complainant meets the low threshold to advance past the first stage (a preliminary assessment) of a three-part process where the fact-finding stage of the process is yet to come.

It would create a precedent that is completely unworkable, and would bring instability to the governance of the country, undermining the constitutional scheme created to hold the President to account.

For the President to leave office on the basis of this flawed report would be plainly unjust and, moreover, would set an entirely inappropriate precedent.

To resign, or to be recalled from office by the ANC, on the basis of this flawed report would create a very unfortunate precedent and would undermine the principle of constitutional accountability rather than serve it.

Brutal meeting

But, aside from all this, Ramaphosa has to want it enough. He has to have the stomach for the fight.

Today’s NEC meeting will be brutal, since each side will recognise that there can be no misses and that this may be the last opportunity for a while to either bring down a president or, conversely, for him to reassert his power and authority. 

Ramaphosa’s supporters, and those who are deeply concerned that the progress in rebuilding state institutions and integrity in public life that has been made since he came into the presidency will be halted or reversed, are calling on him to make one last act of public service.

Understandably, they fear internal ANC warfare will lead to a great unravelling, since whatever comes after Ramaphosa will yield greater instability, uncertainty and damage to the country’s economic prospects and the welfare of its poorest citizens and communities. 

There is more than a whiff of a Shakespearean tragedy in the political drama that is unfolding. And, indeed, like the call of the young King Henry V before the assembled English army the night before the totemic battle of Agincourt, Ramaphosa is being asked to

Stiffen the sinews, summon up the blood [and]
Disguise fair nature with hard-favoured rage.

He may still go. But to resign, or be recalled, simply on the basis of the independent panel’s report would be unjustified and a grave mistake. DM