EUSEBIUS MCKAISER | ATM sets cat among ANC pigeons with answer to Ramaphosa’s judicial review case

There has been a lot of discussion about President Cyril Ramaphosa’s decision to take the section 89 independent panel’s preliminary report on Phala Phala on judicial review.

This has allowed the president and his backers within the ANC to buy some political time before the party’s elective conference this week. They can claim that any matter before the court that is not legally finalised ought not to be a basis for eliminating him as a serious contender to remain in his position as leader of the ANC. 

Many legal commentators have, perhaps understandably, failed to fully locate the ongoing lawfare within the context of the internecine factional battles within the ANC. It really is all about politics and not about constitutionalism. The law is being weaponised for purposes of power play within the party. Only an adoption of the section 89 report by parliament could make the president’s bid for a second term as ANC president potentially awkward. Which is why his supporters within the NEC have won a major victory with an agreement that ANC MPs must vote against the adoption of the report on Tuesday.

The decision of the national speaker to not reconsider her initial decision that the vote will not be by secret ballot, further helps Ramaphosa because ANC MPs will not want to be disciplined by the party if they were to ignore a strict instruction to vote against the report.

The African Transformation Movement's Vuyolwethu Zungula has, however, set the cat among the ANC pigeons. He has filed an answering affidavit which is boring in tone and style, compared to the papers filed by Ramaphosa already, but which is interesting on the substance of the counterarguments advanced.

If only ANC MPs cared more about the constitution of the country than they did about Luthuli House, reading the 36-page affidavit of Zungula ought to leave any rational person with some difficulty to decide whether it is sensible to vote against the section 89 independent panel’s report. I want to summarise the legal arguments but will do so with a political aim in mind.

We need not settle the merits of the legal case as non-lawyers before we are able to assess whether the strength of these arguments justifies voting against the panel’s report. In my view, the ATM’s answering affidavit might be a legal response to Ramaphosa in the Constitutional Court, but it is, simultaneously, an unintended case for why MPs should vote in favour of adopting the panel’s report. Here is why:

Zungula’s affidavit contains both procedural and substantive arguments. On process matters, he offers two rebuttals to Ramaphosa. First, he denies the Constitutional Court has exclusive jurisdiction because, on a proper characterisation of the case before it, he says, this is a review of the work of a panel that is independent of both parliament and the president. He accuses the president of being vague by referring to the panel as an “organ of parliament” and concludes that, if the material before the court does not pertain to actions on the part of either parliament or the president, then the threshold criteria for exclusive jurisdiction has not been met.

No doubt the president’s legal team will feel the sting of the second procedural argument, which accuses them of effectively making an undergraduate error by conflating “exclusive jurisdiction” and “direct access”. Zungula disentangles these concepts, and focuses directly (pardon the pun) on direct access after dispensing with the non-applicability of exclusive jurisdiction.

But here, argues Zungula, the difficulty for the president is that he has not shown why it is in the interest of justice for the rarity of direct access to be granted in this particular case. It is almost as if the president wants to attach the direct access request in part to the case for exclusive jurisdiction and in part to a brute appeal to the democratic significance of the case overall. But this is legally inadequate.

The political consequences of this case cannot be sufficient reason to grant direct access, argues Zungula. For me, however, the more interesting further argument carries more weight: that is, by sitting as both a court of first and last instance in a matter of this importance, the court deprives itself of an opportunity to work with and through the legal findings and reasoning of other judges within the court system.

At any rate, if the president was serious about direct access, it is curious there is no urgent application nor a parallel application lodged with the high court, contingent on the Constitutional Court not granting direct access. The ATM leader hopes, before any substantive issues are considered, that the case is lost already because it is not adequately shown by Ramaphosa why the court has exclusive jurisdiction over the work of an independent panel (as opposed to action by the president which is not at play) or why direct access should be granted. 

The public debate has not focused on these procedural matters because we are all interested in the substantive allegations as citizens. That makes sense. Lawyers will tell us, however, that complex legal strategies must involve simultaneously paying attention to legal technicalities, including whether due process requirements are met, and not only by diving straight into the juicy substantive issues. 

That said, I also found Zungula’s non-procedural arguments interesting. He claims Ramaphosa has woefully mischaracterised the nature of the work of the panel. Not all of these substantive arguments that then follow are clear or convincing, but I want to comment on how they should relate to the work of parliament, even while the lawyers fight about their ultimate legal strength.

One argument is the panel’s work is non-binding and “merely recommendatory in nature” which means it is not reviewable. More precisely, the work of the panel does not generate “final decisions capable of creating direct consequences”. Parliament can consider the report and simply reject it, bringing the impeachment process to a crashing end, within the bounds of constitutionalism.

There is nothing to review here and all that a “review” would achieve is to prematurely deprive parliament of an opportunity to hold the president accountable, effectively trampling on the doctrine of separation of powers. The panel made no factual findings against the president but merely determined there is a case to be answered which can be better handled, with factual determinations it cannot make, during the next phase of the impeachment process.

The weaker part of Zungula’s argumentation is a series of claims that there are also factual disputes that arise between what the president claims the panel did, and what he thinks the panel in fact did. He then analyses a number of these. This is odd. On the one hand, Zungula denies the panel is engaging in any real factual excavation. On the other hand, he has proceeded, at some length, to argue the panel made rational factual determinations on the basis of probabilistic reasoning.

You cannot have it both ways. Either the panel did or did not make factual determinations. But this is irrelevant to the main political point I want to end with. If I was an MP, I would look at Ramaphosa’s and Zungula’s legal battle, read their submissions, and go to parliament determined to fight for parliament’s constitutional right, and indeed obligation, to be at the heart of this impeachment inquiry.

Even if you have intuitions as an MP that the section 89 panel did not do a good job as requested by the speaker, your first obligation is to make sure parliament’s role in the overall constitutional democratic schema is upheld, respected, and entrenched. Parliament cannot be a bystander, like the rest of us, watching the ConCourt process unfold. Parliament should not defer to the courts.

Adopting the section 89 panel’s report does not mean you are agreeing with its content. Adopting the report does not mean you think the president is guilty of any serious offence or misconduct. Adopting the section 89 panel’s report means that you, as parliamentarians, take seriously your accountability role which should not be left to judges to take control of.

Adopting the report recognises that you will have more power to determine the objective truth about the president’s vague responses to the section 89 panel because an impeachment committee will not be restricted in the way the panel was.

Voting against the report is frankly a refusal to take accountability seriously.