If ANC MPs reject the Section 89 report, as instructed by the NEC, it will deny Parliament the ability to have a detailed debate about its contents and recommendations. Ebrahim Harvey argues that this will be a severe blow to our constitutional democracy.
The decision by embattled President Cyril Ramaphosa to directly lodge an appeal with the Constitutional Court, following the damning report of the independent parliamentary panel, which found that he indeed has a prima facie case to answer around the Phala Phala scandal, I suspect is going to count against him.
There are several reasons why he will probably regret going that route. The first one is that he did so even before Parliament had debated the said report, which will take place on 12 December. Was this a tactical blunder, especially given the fact that the report stated several times that it is by its nature provisional and tentative and not necessarily indicative of his guilt?
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The report, however, explicitly stated that based on the information at its disposal, there is a case to answer, in other words, that there exists sufficient evidence to warrant further investigation and that it appeared from the knowledge and evidence before it, which included the views of most opposition parties in Parliament, there is a case to answer to.
Serious indictment
There was nothing necessarily wrong with the provisional conclusion of that report, especially since Ramaphosa himself agreed with much of what was said by former spy boss Arthur Fraser about what had happened on his Phala Phala farm in February 2020, in relation to what he earlier told Parliament and in his replies to questions by the panel.
The immediate question that arises is why did Ramaphosa not first see what happens at the parliamentary debate on the panel's report, which was scheduled for last week Tuesday, but was postponed by a week? The importance of this question was reinforced by the fact that many of his supporters in the ANC and, by far, most of the national executive committee (NEC) vowed to continue support for his re-election at the ANC's electoral conference which gets underway next week.
But much more importantly is that the NEC decided that the ANC in Parliament will vote that the report be dismissed, irrespective of whatever arguments it has, which suggests that there is indeed sufficient or prima facie evidence that Ramaphosa does have a case to answer. This represents the most serious indictment of the highest decision-making body of the ANC and, with it, a severe blow to our constitutional democracy.
However, what is worse is that by rejecting the report, it will also deny Parliament the ability to have a detailed debate about its contents and recommendations. Why did the ANC take such a drastic decision if it is confident that Ramaphosa is innocent of all the charges Fraser laid against him and what the report identified as justifying an impeachment inquiry?
This is the most important and glaring failure by the NEC and, with it most of the ANC MPs because it simply means that once again, they have failed to hold the executive to account for some very serious allegations against its head, Ramaphosa. But this is the same shameless, and in fact, unconstitutional role ANC MP's have often played in previous attempts to impeach ANC presidents, especially as we saw when former president, Jacob Zuma, was in office.
In this regard, one is painfully reminded of the absolutely scandalous Nkandla affair, in which we had the most blatant and indeed unconstitutional and criminal abuse of public resources by Zuma, which was graphically exposed in the report by then-Public Protector Thuli Madonsela. In many other constitutional democracies, Zuma would have been immediately dismissed, but not under ANC rule, where its majority in Parliament has been repeatedly used to bludgeon its way through the opposition, no matter what the issues are.
But there are even more important questions that the current raging public debate on Ramaphosa's political predicament is clearly not paying adequate attention to, which is that there is a powerful and widespread narrative that those who are calling for his resignation as president of the country is basically arguing that no matter what violations of law and especially of the Constitution he might be guilty of, of what happened on his farm, he remains the best hope for the ANC and South Africa.
The central problem is that this perspective is vulnerable to attack on several fronts, mainly because it is anchored around a potentially perilous belief that the other and opposing faction, which includes former president, Jacob Zuma, former suspended secretary-general of the ANC, Ace Magashule, former health minister, Zweli Mkhize, ministers Lindiwe Sisulu and Nkosazana Dlamini-Zuma, Tony Yengeni and others, are worse than the failures of Ramaphosa on his farm.
Corruption runs deep in ANC
This sentiment was crudely captured when immediately after the panel's report and calls for his resignation by some leading ANC figures, which includes some of those mentioned above, there were a few in Ramaphosa's faction who said it was ludicrous that criminals were calling for his resignation. But herein lies the essence of the problem: how can they say so when Ramaphosa himself is facing very serious criminal charges about what happened on his farm?
But even average political intelligence with tell us that in the final analysis, those ANC NEC members and MPs who would still vote for Ramaphosa, despite the panel's report, are motivated not by our constitutional principles, especially that of courageously and stringently holding the executive to account, are basically "singing for their supper", and much more concerned with the pecuniary benefits of being MPs and political careers than by any moral and constitutional consciousness and conscience.
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Furthermore, which shows us just how deep, wide and chronic corruption and criminality runs in the ANC, just a few days ago, it was reported that the Organisation Undoing Tax Abuse (Outa) laid criminal charges against deputy president, David Mabuza, about very serious allegations that he and others perpetrated regarding a ‘land claims' matter, while he was MEC for Mpumalanga, in the mid to late 2000s.
However, such are the immense complexities of the current political conjuncture in the ANC and SA and the severely restricted political choices we have, especially the absence of a parliamentary socialist party, that in spite of all the many failures and weaknesses of Ramaphosa, including what he might be guilty of in the Phala Phala scandal, most in the ANC, and probably most voters, will still prefer him to win a second term as president of the ANC and ipso facto of the country next week at Nasrec.
This is the crux of the painful predicament the better half of both the ANC and South Africa face today in this unprecedented political and constitutional crisis. I can therefore already foresee that the ANC's numerical superiority in Parliament will most probably prevail once again in the debate on Tuesday and thereby prevent the adoption of the panel's report and the related establishment of an impeachment committee.
Complex challenges
But unsavoury as such a prospect certainly is for most South Africans, if that does not happen, we will undoubtedly, I believe, be facing an even bigger crisis, especially as regards the implementation of the recommendations of the Commission of Inquiry into State Capture, chaired by Chief Justice Raymond Zondo, and the progression of the various corruption-busting initiatives which no doubt has the signature of Ramaphosa, including the sterling work done by the Special Investigating Unit over the past year or two.
The other very important matter related to the Phala Phala scandal is that the ANC NEC was discussing the ANC's Integrity Commission report on Friday on the matter. Should it support in any way the findings of the independent panel it will serve to increase the chances that the decision of the Constitutional Court will not be in Ramaphosa's favour. That is why I have said at the outset this is a very complex set of challenges he simultaneously faces.
However, in conclusion, here is a crucial question for readers to ponder over, which has massive constitutional and political implications for us all: what if the ANC's majority in Parliament and some of the opposition MPs join forces and vote against the adoption of the panel's report and the establishment of an impeachment committee, especially since the two propositions are related, but the Constitutional Court thereafter rejects Ramaphosa's appeal and finds in favour of the report? Go figure!
- Dr Ebrahim Harvey is an independent political writer, analyst and author of 'The Great Pretenders: Race and Class under ANC Rule', published by Jacana in May 2021.
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