Africa-Press – South-Africa. The Section 89 Panel report has exposed some of the major shortcomings in the manner we seek to hold the executive accountable, argues former special advisor in the Minister in the Presidency, Lumko Mtimde.
In 2016, Umkhonto WeSizwe veteran Comrade 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 before the 55th ANC Conference and 18 months towards national elections.
The rand plummeted with a 5% slight margin. Most South Africans still look up to President Cyril Ramaphosa as our head of state and the one who led the country out of corruption, fought against Covid-19 and strengthened the security cluster and law enforcement agencies.
On Wednesday when the Section 89 panel report was released, I believed President Ramaphosa did not deserve this but should resign. On second thought, however, Ramaphosa must not throw a towel or be bullied out of office based on untested findings.
At this point, no one can say beyond reasonable doubt that Ramaphosa is guilty of anything related to the Phala Phala scandal.
Serious unanswered questions
The key problem is that there are serious unanswered questions and the president is unable to take us into confidence and explain, maybe because he himself was not at Phala Phala. Neither was the head of Ramaphosa’s protection unit Mr Wally Rhoode, Sudanese businessman Mr Mustafa Mohamed Ibrahim Hazim, Ramaphosa’s adviser Mr Benjani Chauke, farm manager Mr Hendrik Von Wielligh or former spy boss Mr Arthur Frazer. Unfortunately, the more time it takes to answer these questions, the more damage to the ANC, the president and to the judicial processes.
The doubt regarding these key questions and assumptions or inferences drawn by the independent panel appointed by the National Assembly, presents a major gap for Ramaphosa’s opponents to launch attacks on him.
The panel conclusions are based on assumptions that Fraser’s allegations will be substantiated with plausible evidence. This does not sound correct in law. Why shouldn’t they have declared the inadequacy of the evidence as the reason for their inability to draw conclusions instead of coming 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…etc.” Worse is that the concluding recommendations of the report state that there is a “prima facie case that the President may have committed” violations.
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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 there are several investigations on the go but no patience to wait for these investigations to be concluded raises serious questions about how we handle matters which impact on our national stability.
Our situation is compounded by detractors of the president and competitors for his office who have found new courage to opportunistically ride the wave of what appears to be public dissent when, in fact, it is about their serving their 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 their responsibility to the nation. However, it is equally vital that this must happen within the framework of our law and Constitution.
Unintended objective exposed
Accountability must not be used and exploited for narrow self-interest. It is good that the National Assembly established a Section 89 Panel and even granted it an extension when requested. It is also good that the report was handed over in full view of the public who was later given access to it. South Africans have the opportunity to read it for themselves and make up their own minds.
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. But everything in the report appears to be based on hearsay, speculation and conjecture.
When the panel’s chairperson, 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.
However the panel decries the fact in the report that it did not have an opportunity to access information from the Hawks and the Public Protector or the South African Reserve Bank. The report pointedly states that there are many unanswered questions to which more information was needed. But Ngcobo publicly indicated that they were confined to what the Members of Parliament gave them. If that be the case, what would the relevance of the information held by the Hawks, the Public Protector and others be?
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.
Why would persons appointed on the basis of their expertise to guide not only the National Assembly but the entire nation, adopt such a casual approach to such a serious and complex matter? Does this explain why the panel is so non-committal about whether the allegations against the President are sound or not?
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 any costs. The words “may have” mean that the President may not actually have committed the alleged misconduct or violation of the Constitution.
Interestingly even the wording of the findings is inconsistent.
The report states that the president has a case to answer. What it does not say is what this case is.
The more worrying part of the panel’s findings is that nowhere does it say, whether the President acted in bad faith, which would be regarded as serious misconduct. Was the panel oblivious to the terms of the definition of serious misconduct?
The complainants appear to have forgotten that Parliament has passed a law called the Members Ethics Act. Part of the charges against the President relate 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 have this matter investigated as part of the work of the panel?
Interestingly, the panel of experts also appear not to have 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 panel’s part? Or is there a justifiable reason for this?
– Lumko Mtimde is writing in his personal capacity. He is a former Special Advisor to the Minister in the Presidency He is also an ANC and SACP member.
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