The destruction of Parliament might not be a bad thing after all, amounting to a ritual cleansing by fire. Perhaps it was infected with the uncaring and brutal spirits of the past, and the diseased majority party was the result. Perhaps a new building will be pervaded by the spirit of constitutional democracy and integrity.
If I had not already resigned from the African National Congress, two recent events in Parliament would have been the final straw.
My first grievance relates to the manner in which the impeachment proceedings against President Cyril Ramaphosa were dealt with. There is certain conduct which is prohibited for a president, and the penalty may be impeachment. The Rules of Parliament have established a procedure under section 89 of the Constitution to deal with the matter. In a preliminary enquiry, the accusation must be considered initially by an independent panel established under Rule 129D to determine whether there is a prima facie case to be met by the president.
The panel must report on its findings to Parliament for the National Assembly to consider as Rule 129G(1)(b) of the Rules of Parliament require. Rule 129I(3) states that: “In the event the Assembly resolves that a Section 89(1) enquiry be proceeded with, the matter must be referred to the Impeachment Committee established by this rule for that purpose.”
The functions and powers of the Impeachment Committee are set out in Rule 129M(1): “The committee must when the Assembly has approved the recommendation from the Panel to proceed with a Section 89 Enquiry, proceed to establish the veracity and, where required, the seriousness of the charges and report to the Assembly thereon.”
The independent panel reported that President Ramaphosa said: “I would like to say that I’m a farmer. I am in the cattle business and the game business. And through that business, which has been declared in Parliament and all over, I buy, and I sell animals. Sometimes people buy these animals — and some of the people who bought some of the animals some of them are here — I do it yes, though, the sales are sometimes through cash or sometimes through transfers.”
The panel concluded that there was prima facie evidence that the president was in breach of the constitutional prohibitions. It stated that it was “satisfied that the evidence discloses, prima facie, a violation of section 96(2)(a) read with section 83(b) of the Constitution. In all the circumstances, we are satisfied that the President has a case to answer.”
Section 96 (2)(a) prohibits the president from undertaking any other paid work, and section 83(b) orders the president to uphold and defend the Constitution.
The Minister of Justice, Ronald Lamola, explained why the ANC rejected the independent panel’s report and thus opposed the appointment of an Impeachment Committee: “The question before this house is whether we are convinced that the panel has established that there is sufficient evidence to establish that the President has a case to answer in terms of the rule 129G(1)(b) to commence a section 89 impeachment inquiry.”
He claimed that “the Section 89 Panel Report conflates sufficient evidence with prima facie evidence.” He said that “sufficient evidence is a higher threshold test than prima facie” and that “in a nutshell, the panel has lowered the bar too low for proceedings to impeach a sitting President to commence and that will set a very dangerous precedent for our constitutional democracy.”
This is simply claptrap.
Semantics and wordplay
The expressions “a prima facie case”, and “sufficient evidence to establish a case to answer” mean the same thing and their meaning is well understood. They are familiar expressions used in civil, criminal, and other proceedings.
Though not a court of law, the independent panel is one example. In fact, it has a whiff of criminal procedure about it, for the function of the panel is roughly analogous to the role of a court hearing a preparatory examination in a criminal matter: Section 135 of the Criminal Procedure Act prescribes that, having heard the whole of the evidence, if the court is of the opinion that no “sufficient case has been made out to put the accused on trial” then the accused must be discharged. In fact, the independent panel found that the president did have a case to answer.
The panel appears to have recognised that its procedure is in the nature of a preparatory examination in criminal proceedings when explaining its own powers — in paragraph 71 it acknowledged that “it was never intended that the Panel should make a finding on whether the President is in fact guilty of any of the acts listed in section 89(1)”.
This is not the context for a lesson on the law of evidence but, to put the matter wordily and somewhat clumsily, the expressions mean this: when the party bringing the matter to be adjudicated (e.g. the prosecution, the plaintiff, the complainant) has concluded presenting its case, the authority hearing the matter and which must adjudicate on it must consider whether what has been put before it is sufficient to create an expectation that the other side (e.g. the accused, the defendant, the respondent, the president) must be given an opportunity — in fairness and justice — to respond fully, and by evidence and argument to show why the party bringing the matter should not succeed. It is a form of the application of the Latin maxim audi alterem partem.
Whether the minister of justice’s resort to balderdash to explain the ANC’s vote is due to ignorance or a deliberate attempt to befuddle is irrelevant. In either case, he led the ANC to protect President Ramaphosa with the consequences set out by former president Thabo Mbeki in his recently published letter.
Interpretations of demcracy
My second grievance relates to the ANC’s idea of democracy.
It is impossible for constitutions and laws to cover every imaginable fact or situation that can arise. For this reason, constitutional conventions are necessary. They have been compared to the cement or mortar between the bricks of a wall. Without the cement, the wall is unstable and useless — even dangerous.
The conventions emerge because the constitution in a democracy may be useless without them. They are to be found in the textbooks, manuals, treatises, law reports and commentaries dealing with the Constitution and they make it possible for the Constitution to work. South Africa is no exception.
If one reads the history of how the Convention for a Democratic South Africa (Codesa) painfully but determinedly became a practical reality that prepared a new Constitution, one realises that without the consensus involving all parties, no progress would have been made.
At the core of what happened, lies consensus. Consensus became the mortar that bound the bricks constituting the proceedings that led to the final Constitution, and it is consensus that remains a pervasive convention that ensures that the Constitution of South Africa can function.
Section 85 of the Constitution vests the executive authority of the Republic in the president. The president is a member of the Cabinet (section 91), and as such is explicitly made accountable to Parliament (section 92).
But a convention is needed, and one exists. The need for it was made clear by the reply of the deputy president to a question asked of him by the Democratic Alliance’s Chief Whip Siviwe Gwarube, who asked why the ANC protects the President by its majority in the National Assembly to defeat ad hoc inquiries.
The same point was made by the leader of the opposition, John Steenhuisen, who drew attention to Jacob Zuma and Nkandla, pointing out that “it is the exact same [ANC] modus operandi: as long as you have the numbers in Parliament, you can make any scandal go away”.
Deputy President Paul Mashatile had the ANC’s answer: “Remember that winning positions and decisions is something you win out there during the elections. So, when you campaign and you win, you already win here [in Parliament]. If you lose there [in elections], you have already lost here.”
It cannot be right that the President can be held to account only if the majority party agrees, and indeed there is a solution to be found in the history of our Constitution. When Codesa reached its consensus on majority rule and agreed that the President would be accountable to Parliament, it was never contemplated that this meant that the president might act with impunity in matters which are devoid of any political significance.
The Phala Phala matter is of no party-political significance. In his recently published letter addressed to Paul Mashatile in his capacity as Deputy President of the ANC, former president Mbeki drew attention to the effect of dealing with it as if it were. He wrote that by voting to block the process of establishing the required multi-party committee in Parliament the ANC “communicated the unequivocal statement to the masses of the people that we do not want Parliament to seek and gain a deeper and comprehensive understanding of the Phala Phala matter. In other words, we acted as we did because there is something to hide!”
The effect of a majoritarian view is that the governing party can ensure that no president from its ranks will ever be impeached.
Sections 84, 89 and 92 of the Constitution create the framework within which the president acts. Conduct outside this framework may be in serious violation of the Constitution or the law — perhaps a specific crime; or it may simply be conduct which causes serious and deep embarrassment; or it may be thought to be utterly irrelevant to South Africa’s affairs.
If the matter is raised, then it can be resolved only by consensus, and the authority for this is the manner in which the Constitution was written. This has established a convention that non-political matters must be resolved by consensus, and the multi-party committee crystallises the convention and is the appropriate machinery to do this, as Mbeki has pointed out.
Just how urgently a new spirit is needed in Parliament is revealed by the statement by the ANC’s Chief Whip that the Constitution is “actually a transitional one to accommodate everyone”. In his open letter addressed to the Deputy President, Mbeki responds by stating that he “cannot guess what caused the Chief Whip to make the entirely false claims”.
One might add that they are also bizarre.
Is she blaming the state of Eskom, the railways, the public health services, the roads, the public schools, the all-but vanished post office, education, the corruption… all the country’s problems on the Constitution?
Perhaps the new Parliament building may lead to reflection on how things must happen in it. Certainly, South Africa cannot continue as things are. Democracy is being damaged. The manner in which the President’s impeachment proceedings have been managed demonstrates that. DM