EUSEBIUS MCKAISER | Ramaphosa’s ConCourt case shows an irrational fear of parliament

A lot can be said about the legal arguments constructed by President Cyril Ramaphosa in response to the section 89 panel report. There are fascinating legal and political complexities worth engaging. Ramaphosa’s legal strategy, which also serves the political function of making sure he does not step aside before the ANC’s elective conference, is a good one, but it isn’t unanswerable. 

One pithy question to start with: “What exactly is being reviewed?” The panel did not reach the conclusion that the president violated section 89 of the constitution. Some of the more bizarre responses to its work, including vicious personal attacks on panel members, which are at once fallacious and intemperate, conflate the first two steps of an impeachment process. 

By design, the first step simply weighs up the initial bits and pieces of incomplete evidence, with limited inquisitorial powers at the panel’s disposal, and that is why its members are at pains, without needing the president’s lawyers to remind them, to underscore what they are not allowed to do. They make it clear theirs is not a definitive factual finding of gross misconduct or violation of constitutional duty. They remain, to put it differently, open to the possibility that the president could be innocent of the claims made against him. But their recommendation is to subject the available material to the rigorous and more expansive tools available to an impeachment committee. 

Now if you’re a Ramaphosa fan, do not be triggered by these sentiments. I am not implying there are no threshold requirements to be met before the independent panel can be justified to tell parliament it should set up an impeachment committee. My problem is with the deliberate misdescription of what the panel did. It did not malign the president because it could not, in law, reach factual findings of that sort. And it did not make such findings. So what is the locus of irrationality? It is easier to find and steal dodgy dollar bills in a presidential couch than it is to locate the alleged substantive irrationality of the panel. 

It is easier to find and steal dodgy dollar bills in a presidential couch than it is to locate the alleged substative irrationality of the section 89 panel. 

Much of the hasty moaning about the panel’s work ascribes factual findings to the panel that are not in the report. So what is being reviewed here? It is not that clear.

What, for better or worse, the panel was mandated to do was to make a value judgment about the evidence before it, mindful of the inherent design limitations it was saddled with in terms of time and limited tools of analysis, including not being able to call witnesses. Its members made a judgment call. Because they were required to. They could not be agnostic in their recommendations about stage two on account of the design limitations of the process. They took a view. And that is that. It is what it is. 

But because parliament is only starting the process, it is too premature to saw off all parliamentary legs by behaving as if the panel’s preliminary report is the final say in the matter. It isn’t. 

So why stop parliament from doing what it should in terms of the political oversight role demanded by the constitution that guides us in this debate? Ramaphosa is emasculating parliament for fear of facing a more powerful second step in this process. He is gaming. Which is odd for someone who is presumably not guilty of any of the mischief former spy boss Arthur Fraser alleges.

Running straight to the apex court is Ramaphosa playing a Zuma card. It is a stalling tactic that is also revealed in some of the arguments in his legal papers, such as the plea to the court that otherwise solid common-sense conclusions from the independent panel should be labelled “beyond scope”. They are using legal technicalities to evade a political judgment in step two of the impeachment process, a judgment about his general integrity and believability in this matter. What is legally beyond scope isn’t ethically and politically beyond scope. Which is why we, as voters, should never wholly outsource our judgment calls to legal processes. It is also why parliament has a duty to vigorously oppose this matter with the best legal brains. 

They are using legal technicalities to evade a political judgment in step two of the impeachment process, a judgment about his general integrity and believability in this matter.

Let’s return to the central issue — what exactly is being reviewed here? We know the panel’s members are not reviewing a finding that the president violated section 89 because there is no such finding. What they are taking on review is what I refer to as “take another look”. When we cut through the unnecessary Latin and jargon, all the panel really did was tell parliament to “take another look”.

It’s like going to your GP, them feeling a lump, and saying you should go to the specialist to “take another look”. You have not been diagnosed with cancer nor have you been told the lump is benign. It is for a better-equipped specialist to tell you definitively what is going on in your body. 

Sure, you may hate the prospect of more examination. After all, it may end in a devastating diagnosis, maybe even with a dim prognosis. It might, however, end with a positive conclusion. Ramaphosa does not want to go to the specialist. If there is irrationality here, it is to refuse proper examination and rather let the mystery stick around, open to speculation.

The legal papers also do not examine some important questions about how organs of state relate to each other. Parliament cannot do anything unconstitutional. That much is trite. But the courts in turn cannot demolish separation of powers. It is a delicate balance. In this case there is no need — so early on — in a lengthy parliamentary process, to assume parliament incapable of reading the panel’s report carefully, debating and rejecting it. Why deny an organ of state the constitutional space to do what the constitution wanted it to do? The impeachment questions are legally framed, but theconcept of impeachment is wholly political in the sense that we want our elected officials in parliament to decide whether to axe or keep the president. Judges should be reluctant to get easily and decisively involved in such a matter. 

This hasty rushing to the Constitutional Court robs parliament of a role that is central to its existence. So the apex court should consider saying to the president: “Your arguments about this and that being beyond scope; your arguments about this or that being inadmissible; and all your other arguments, all of them combined, are interesting for sure, but it is not constitutionally permissible for us to short-circuit democracy in action. We are especially mindful of the constitutional point of parliament and, from a legal viewpoint, mindful that the panel's recommendations did not find you guilty of anything reviewable. Rather, it simply suggested parliament take a second look, which your innocent self obviously does not fear. Yes?”