Judges should not sit on the Phala Phala impeachment inquiry

There is no good reason for a judge to be appointed to the independent panel on President Cyril Ramaphosa’s impeachment.

There is no doubt that the allegations concerning the 2020 theft of large amounts of money on President Cyril Ramaphosa’s Phala Phala game farm are serious. The fact that the president has not given a sufficient explanation of what happened, who did it, and the extent of lawbreaking (if any) should trouble us all.

It is therefore no surprise that, in frustration, opposition parties – led by the African Transformation Movement – have now gone for the ‘nuclear option’ and filed a motion calling for Ramaphosa’s impeachment.

To kick off the impeachment process, the grounds of impeachment first need to be established through a legal process led by an Independent Panel. Although the rules of Parliament allow for a judge to be a member of this panel, it does not seem prudent to have a judge participate at this stage.

The aftermath of Nkandla

After the Public Protector’s 2014 report which found that exorbitant security upgrades to former President Jacob Zuma’s Nkandla home improperly benefited him – and that he should repay the state for some of these – a monumental battle began. Opposition parties, primarily led by the Economic Freedom Fighters, demanded that he pay back the money immediately. However, despite their vociferous protest in the parliamentary chamber, the majority African National Congress was adamant that Zuma should not pay a cent.

When the EFF called for Zuma’s impeachment for violating the law and his oath of office, the then Speaker Baleka Mbete – also a member of the ANC – took the position that Zuma could not be impeached because there was no mechanism for doing so. The EFF then approached the Constitutional Court to force the Speaker’s hand.

In EFF v Speaker , the Constitutional Court found that the Speaker had failed to comply with section 89 of the Constitution by not establishing a clear process for impeaching the president. It ordered parliament to develop rules for impeachment which would include a preliminary inquiry to establish the grounds of impeachment. If these grounds were established, the matter would then go to a vote in the National Assembly on whether the president should be removed from office.

In complying with the judgment, Parliament amended Rule 129 of its rules to provide for an Independent Panel made up of legal experts which may include a judge. The panel will conduct a preliminary assessment of whether, on the available evidence, grounds of impeachment have been established.

Although the Constitutional Court has recently emphasised in DA v Public Protector – a case dealing with the rules for the public protector’s impeachment – that the role of the judge on the independent panel is to give non-binding advice,  it is doubtful if there is necessarily a need for a judge.

In respect of the Phala Phala allegations in particular, it would be best if judges are not involved in the process as the likely political fallout may pose a risk to the reputation of the judiciary.

There is no need for a judge to establish impeachment

In terms of parliament’s rules the role of the Independent Panel is to conduct a preliminary inquiry into the impeachment motion. Based on the information presented to support the motion, the Independent Panel must make a preliminary assessment whether there is prima facie evidence to show that president has (a) committed a serious violation of the Constitution or law, (b) committed a serious misconduct, or (c) suffers from an inability to perform the functions of office.

The task of the Panel is therefore simply to apply skills of forensic analysis and legal reasoning to conclude if there is evidence to show that the grounds impeachment have been established and recommend this to the speaker (within 30 days). The Rules themselves require the Panel to be made up of only South Africans “who collectively possess the necessary legal competence and experience”.

While judges have spent decades applying these advanced skills of legal analysis and reasoning, these skills are not exclusively found in judges. One of the extremely few silver linings of the nightmare that was the state capture period is that South Africa now has a wealth of forensic investigative skill. In the last decade, lawyers have had to sharpen their knowledge of money laundering, tax evasion, fraud, corruption, and illicit cross-border money flows. All this means that many other lawyers – be they attorneys, advocates, or prosecutors – qualify to be part of the Independent Panel.

Indeed, the Rules themselves understand this possibility by making the addition of a judge to be discretionary – Parliament may include a judge as part of the Panel, it is not mandatory that they do so (otherwise the wording would be must).

The most plausible reason why a judge would be included on this panel would be to lend the prestige and status of judicial office to what is essentially an extremely fraught and divisive political process. Whatever the outcome, it’s legitimacy will be clothed in judicial robes, whose coercive force is usually deployed by the judicial branch of government, which is admired for its fierce independence.

Judicial legitimacy is a scarce currency that needs to be used sparingly. There is no compelling reason for it to be deployed in the task of the Independent Panel. In fact, by judges participating in the Independent Panel on the Phala Phala allegations, there is far more for the judiciary to lose than to gain.

A delicate time in a dangerous year

Senior Advocate and Queen’s Counsel Jeremy Gauntlet described the 2017 ANC electoral conference season as a ‘delicate time in a dangerous year’. That description seems apt for 2022 as well.

It would be naïve to believe that the Phala Phala impeachment motion is completely disconnected from this year’s ANC’s electoral conference, much as it might be a legitimate exercise of parliament’s executive oversight powers over the president.

In respect of the Phala Phala allegations, the ATM’s Vuyo Zungula, the initiator of the impeachment motion, has already indicated that anything short of the Independent Panel finding that there are credible grounds of impeachment would be yet another example of Ramaphosa being given a free pass.

In the currently fraught political climate, there have been numerous baseless allegations that the judiciary is somehow sympathetic to Ramaphosa. Zungula himself has revived the debunked myth that there are judges on Ramaphosa’s payroll via the so-called ‘CR17 bank statements’.

There is, of course, a distinct difference between judges who are still in active service, hearing court cases daily, and those who have retired. Even the ethical rules of the judiciary are geared towards ensuring that judges can sit and adjudicate active cases. These ethical rules are more permissive when it comes to retired judges, as there is an understanding that they may be called upon to perform extra-judicial functions like chairing public inquiries, doing private arbitrations, or taking on academic work.

However, when it comes to a fraught political process like impeachment, the concrete distinction between sitting and retired judges fades in the public eye. It’s probable that even retired judges would be seen as the judiciary participating in a politicised process.

Considering all these factors, it seems far more judicious for judges to completely avoid being entangled in the Phala Phala shenanigans.

So, what is to be done? The Speaker and the Chief Justice must protect the judiciary

Although opposition parties this week nominated retired judges to be part of the independent panel, there is still opportunity to exclude them from this process.

Rule 129E (2), reinforced by the DA v Public Protector , gives the Speaker complete discretion to decline the nomination of any person but only after having given due consideration to it.

If that still fails, it then falls on Chief Justice Raymond Zondo to either counsel the Speaker against appointing a judge to the panel or withhold his consent. Rule 129E (3) requires the Speaker to appoint a judge to the Panel in consultation with the Chief Justice. That means such an appointment must be a joint decision by both the Speaker and the CJ.

Both the Speaker’s and the CJ’s actions in declining to appoint a judge to the panel would be a means to protect the independence, impartiality, dignity, and effectiveness of the judiciary, as required by section 165(4) of the Constitution.

The South African judiciary is already under strain in dealing with politically charged cases that come before the courts, in what some call the ‘judicialisation of politics’. It definitely does not need more strain, especially one that is due to issues that should properly only be before parliament.

Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the UCT Law Faculty.

A version of this article was published in the Mail & Guardian (2 September 2022): https://mg.co.za/politics/2022-09-03-prudent-to-keep-judges-off-ramaphosa-impeachment-panel/