The section 89 panel report has exposed some of the major shortcomings in the manner we seek to hold the executive accountable. More importantly, it shows the dangers of deploying emotions in serious matters, which may torpedo our Constitutional project.
In 2016, Umkhonto WeSizwe veteran Joel Netshitenzhe said: “Lest we forget: the beneficiaries of corruption and state capture will not give up without a fight. South Africa cannot afford to be complacent!”
South Africa is not going down. We are not in a boat in the deep blue sea. Two weeks ahead of the 55th ANC Conference and 18 months towards national elections, investors calculate and mitigate the political risk. The rand plummeted by 5% slight margin. Most South Africans still look up to President Cyril Ramaphosa as their head of state and the one who has led the country out of the deep sea of corruption, fought against Covid-19 and strengthen the security cluster and law enforcement agencies. On Wednesday, I felt President Ramaphosa did not deserve this and must resign, but on second thought, the president must not throw a towel or be frog-marched out of office based on untested findings.
At this point, no one has or can say beyond reasonable doubt that our president, Cyril Ramaphosa, is guilty of anything related to Phala Phala. The key problem is that there remain serious questions that are not answered and the president cannot take us into confidence and explain, maybe because he himself was not at Phala Phala and he is neither Mr Rhoode nor Mr Hazim nor Mr Chauke nor Mr Von Wielligh nor Mr Frazer. Unfortunately, the more time it takes to answer these questions, the more damage to the ANC, the president and the judicial processes.
This does not sound correct in law. Why should they have declared the inadequacy of the evidence as the reason for their inability to conclude instead of coming up with twisted statements like: “…one can't assume the actual evidence of Fraser will not be presented at the right time....one can't ignore it....”
The section 89 panel report has exposed some of the major shortcomings in the manner we seek to hold the executive accountable. More importantly, it shows the dangers of deploying emotions in serious matters, which may torpedo our Constitutional project. It is clear that Phala Phala is not the real issue in this ongoing saga or that the president or any member of the executive must be held accountable.
The real issue is rather a power struggle involving many forces. The fact that some caused so many investigations to be conducted but hardly had the patience to wait for the investigations to be concluded raises serious questions about how we are to handle matters which impact our national stability. Our situation is compounded by the fact that detractors of the president and aspirants for his office have found new courage to opportunistically ride the wave of what appears public dissent when in fact it is about their self-serving interests.
There cannot be any doubt that the president, as with any leader of society, must be held to account and to the highest standard of ethical behaviour. Society does not owe any leader sympathy if that leader fails to uphold his or her responsibility to the nation. However, it is equally important that the same must happen within the framework of our law and Constitution.
Unfortunately, the report has exposed an unintended objective. The complainants sought to prove that the president violated the Constitution and committed serious misconduct to warrant his removal from office. As the report of the panel has now confirmed, everything appears to be based on hearsay, speculation and conjecture. When the chairperson of the panel, former Chief Justice Ngcobo, handed over the report, he sought to create an impression that the panel worked spiritedly to sift through words of information which required in-depth analysis and interrogation. He pointedly suggested a statement made on TV that if the panel did not call the Hawks and other investigative bodies, then the outcome may be questionable. He came out strong to state that it was not the mandate of the panel to do so.
Until one reads the panel’s report, his statement makes perfect sense. Surprisingly and in clear contradiction to what the chairperson suggested, the report records that the panel decries the fact that it did not have an opportunity to access information from the Hawks and the Public Protector or the SA Reserve Bank. The report pointedly states that there are many unanswered questions and that it did not have all the information. But the chairperson of the panel publicly stated that they were confined to what the members of Parliament gave them. If that be the case, what would be the relevance of the information held by the Hawks, the Public Protector and others? Does this mean that the panel would have considered that information and if so, what would be the purpose?
It is understandable if the panel felt constrained and limited by the fact that it did not have all the information. However, it is also concerning that even with the clear identification of this serious limitation, the panel nevertheless made serious conclusions. This begs the question of whether this report is complete or whether it can be said to be credible at the least.
The fact that the panel concludes with the words" "The president may have" is very suggestive of the fact that the panel either wanted to play it safe or wanted to make a finding at all costs. The words "may have" can be turned around to say the president "may not have" committed the alleged misconduct or violation of the constitution.
Interestingly, even the wording of the findings is inconsistent. In some instances, all the panel says is that the president has a case to answer. What the panel does not say is what case the president has to answer. The more worrying part of the panel’s findings is that nowhere does it say whether the president acted in bad faith, which is what the rule defines as serious misconduct. Was the panel oblivious to the terms of the definition of serious misconduct or elected to ignore what rules define as serious misconduct?
The complainants appear to have forgotten that the very Parliament passed a law called the Members Ethics Act. Part of the charges against the president relates to what they allege is his paid work. Section 3 (1) of the Members Ethics Act designates the Public Protector as the functionary responsible for investigating any alleged contraventions of such matters.
Why was it, therefore, necessary to cause this matter to be investigated as part of the work of the panel? Interestingly, the panel of experts appears to have not considered that the law has already prescribed a process to deal with a matter of this nature. Was this deliberate or a genuine error on the part of the panel or is there a justifiable reason for this?
Lumko Mtimde is a former special adviser to the minister in the presidency. He is also an ANC and SACP member.