- Cyril Ramaphosa provided his submissions to the independent panel, who are assessing whether there is a prima facie case for his removal over the Phala Phala scandal.
- Ramaphosa insists he did nothing wrong.
- The panel must provide a recommendation to the National Assembly.
Whatever Parliament's independent panel on Phala Phala decides, President Cyril Ramaphosa's fate ultimately lies in the hands of the ANC caucus, which in the past shielded its presidents from accountability.
Ramaphosa on Sunday delivered his submissions to the independent panel, which will determine whether he has a case to answer with regard to Phala Phala.
"President Ramaphosa has always made certain that, throughout his tenure as president, he abides by his oath of office and sets an example in his respect for the Constitution, its institutions, due process and the rule of law. President Ramaphosa categorically denies that he violated this oath in any way, and denies that he is guilty of any of the allegations made against him," reads a statement from the Presidency.
Ramaphosa's submission has not been available for public consumption as of yet.
"We want to respect the process and the panel. Once they deliver their report to Parliament, we will consider making the submission public," said presidential spokesperson Vincent Magwenya.
The panel, chaired by former Chief Justice Sandile Ngcobo, and which also includes advocate Mahlape Sello SC and former judge Thokozile Masipa, has until 19 November to consider the evidence before it.
The complaint against the president was lodged by the ATM, in terms of Section 89 of the Constitution, and the panel will determine whether there is a prima facie case for his removal.
READ | Phala Phala saga: Ramaphosa tells Ngcobo panel he did nothing wrong and did not violate Constitution
In its submission for a motion, the ATM said: "It is common cause that [former spy boss] Mr Arthur Fraser has submitted evidence at the Rosebank police station where the president is implicated in serious crimes, including bribery, money laundering, kidnapping, breaching of customs and excise laws, breaching of SARS regulations, breaching the Prevention of Organised Crime Act, defeating the ends of justice, to mention but a few."
The ATM contended that Ramaphosa violated Section 83(b) of the Constitution, which enjoins him, as head of state, to uphold, defend and respect the Constitution as the supreme law of the Republic. The party also argued that Ramaphosa violated Section 96(2)(a) of the Constitution, which states that Cabinet members and deputy ministers may not "undertake any other paid work".
In terms of Section 89 of the Constitution and the National Assembly rules, grounds for the removal of the president are:
- Inability: "a permanent or temporary physical or mental condition of the president";
- Serious misconduct: "unlawful, dishonest or improper behaviour performed by the president in bad faith"; and
- Serious violation of the Constitution or the law: "behaviour by the president amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith".
The independent panel is not allowed to conduct any oral hearings, and must limit its inquiry to the information placed before it by MPs.
In its report, it must include any findings, with its reasons, upon which its recommendations are based. It must also include a minority view - if there is one.
Then it is over to the National Assembly.
It is most likely that the vote on whether to conduct an inquiry into Ramaphosa's fitness for office would be before Parliament rises for the year - and, therefore, before the ANC's national elective conference in December, as the rules require National Assembly Speaker Nosiviwe Mapisa-Nqakula to schedule the panel's report for consideration by the House with "due urgency".
Ramaphosa must also be informed of it.
If the panel recommends that an impeachment committee must be established to investigate Ramaphosa, it does not necessarily mean that this will happen. The National Assembly must first adopt such a motion. There is no obligation that it must adopt the panel's recommendation.
A simple majority - 50% plus one - is required for the motion to proceed.
With its majority, the ANC is in the pound seats.
The only way the motion will proceed is if the ANC supports it, or if a sizeable chunk of the ANC's 230 MPs break ranks and support the motion if the party doesn't support it.
READ | ANC defends decision to block Phala Phala ad hoc committee
At the moment, it seems unlikely that there are enough dissidents in the ANC caucus that will vote against the party line.
Since the Phala Phala scandal broke in June, the ANC has shown little appetite to hold Ramaphosa accountable. The party line has been the notion - discredited by the Zondo Commission - that law enforcement agencies must first investigate alleged malfeasance before Parliament can act.
In September, the ANC blocked a DA motion to establish an ad hoc committee to probe the whole Phala Phala affair - not just Ramaphosa's fitness for office - after which ANC chief whip Pemmy Majodina said the ANC caucus' standpoint was that "due process must be followed in order to establish the facts, so that evidence informs how Parliament should respond".
All the ANC MPs present for the vote toed the party line.
The ANC doesn't have a track record of holding its president accountable in Parliament.
This didn't go unnoticed by the Zondo Commission, which found in its final report, released in June, that Parliament "failed to use the oversight and accountability measures at its disposal".
Furthermore, the commission found that ANC MPs should have removed former president Jacob Zuma from office in 2013 already and that they "contributed to state capture" by not giving Zuma the boot in any of the eight motions of no confidence he faced, subsequently costing South Africans billions.
"All ANC MPs were instructed by the party to vote against these motions and, by-and-large, they did so," read the report.
This comes against the backdrop of two former presidents - Thabo Mbeki and Kgalema Motlanthe - saying the ANC must be prepared for the possibility that Ramaphosa may be subjected to an impeachment process.
READ | Mbeki lambasts criminals leading ANC, questions Ramaphosa's fate amid Phala Phala probe
Mbeki last month cautioned that the ANC had to decide what should happen if the independent panel found Ramaphosa had a case to answer, and that the party could not shy away from the inevitable conversation around Ramaphosa's fate.
"Do we say to the president he must step aside, or do we say let it continue through the parliamentary process? What is the impact of that in the public mind?" Mbeki asked.
This past weekend, ANC chairperson Gwede Mantashe said the party was trying to be procedurally correct in how it approached the matter and not merely getting carried away by the public outcry with regard to the growing voices of former leaders and party heavyweights expressing discontentment.
"That [parliamentary] process will take a decision whether to impeach; it's not the ANC's national executive committee [NEC] or any ANC heavyweight that decides on this … from where I am seated. We must wait for that decision to take its course, go to Parliament and, if it goes through, it goes through."
READ | 'We are not ill-prepared for Phala Phala findings': Mantashe hits back at Mbeki, Motlanthe
If the motion passes, an impeachment committee will be established.
"The committee must ensure that the enquiry is conducted in a reasonable and procedurally fair manner, within a reasonable timeframe," read the rules.
"The committee must afford the president the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice.
"For the purposes of performing its functions, the committee has all the powers applicable to parliamentary committees as provided for in the Constitution, applicable law and the rules of the Assembly."
The National Assembly rises for the year on 5 December, so it is unlike that this committee would get much, if anything at all, done before the ANC's conference.
This process would be comparable to what is currently happening in the Section 194 Committee, which is determining whether suspended Public Protector Busisiwe Mkhwebane is incompetent or guilty of misconduct.
After the inquiry, the committee must make a recommendation to the National Assembly. The committee's report must include all views expressed in the committee.
Once this report is done, the House must schedule the report for debate and decision with due urgency.
If the report recommends that the president be removed from office, the question must be put to a vote. Two-thirds of members must support the recommendation to remove the president.
If the president is removed, the Constitution requires that the now ex-president may not receive any of the benefits coming to former presidents or be allowed to take public office ever again.
