WHY PRESIDENT RAMAPHOSA’S LYNCH-MOB APPROACH VIOLATES BOTH THE COUNTRY’S AND THE ANC CONSTITUTION

WHY PRESIDENT RAMAPHOSA’S LYNCH-MOB APPROACH VIOLATES BOTH THE COUNTRY’S AND THE ANC CONSTITUTION

                        Paul M. Ngobeni

 

President Ramaphosa’s longiloquent letter to ANC cadres dated 23 August 2020 is emblematic of the intellectual and moral bankruptcy of the ANC under his leadership.   The letter is bristling with heated rhetoric about the ubiquitous corruption within the ranks of ANC cadres and ends with a poignant observation that the 2017 Nasrec  conference, in reflecting on corruption, noted that there is an increase in corruption, factionalism, dishonesty and other negative practices that seriously threaten the goals and support of the ANC. 

 

The President then proposes a series of clearly unconstitutional, ham fisted and bizarre proposals which are antithetical to the very ANC constitution he purports to champion.  He elaborates further by calling for those implicated in corruption to be immediately suspended from office and for the party to distance itself from them. This must happen even where the accusations and reports are woven entirely from untested hearsay, the gossamer strands of speculation and surmise emanating from one’s political enemies.

 

In Ramaphosa’s view, to address corruption in the ANC means implementing without delay the resolutions of the 54th National Conference on dealing with corruption, including that:

·      Every cadre accused of, or reported to be involved in, corrupt practices must account to the Integrity Commission immediately or face disciplinary processes.

·      People who fail to give an acceptable explanation or to voluntarily step down while they face disciplinary, investigative or prosecutorial procedures should be summarily suspended.

·      The ANC should publicly disassociate itself from anyone, whether business donor, supporter or member, accused of corruption or reported to be involved in corruption.

·      Require ANC leaders to make regular declarations of financial interests.

·      Conduct lifestyle audits of all ANC leaders and public representatives.

·      Develop a clear policy on ANC leaders and their family members doing business with the state. We must acknowledge that once one accepts a leadership position, a higher standard of behaviour applies.

 

The ANC constitution stands firmly against the half-baked solutions Ramaphosa has conjured up for his own public relations kudos. Appendix 3 to the ANC Constitution which contains the “Procedure for the Conduct of Disciplinary Proceedings” states unequivocally that the “objective of disciplinary procedure is to ensure that in all disciplinary proceedings, there is a formal procedure which is “just and fair.”  Most important, it states that a “member is presumed innocent until proven guilty…has a chance to defend herself or himself… A member has the right to appeal.”  Ramaphosa’s proposed solution impermissibly set the bar very low and runs counter to the letter and spirit of the ANC constitution. The principle of presumption of innocence until proven guilty is thrown out of the window because every “cadre accused of, or reported to be involved in, corrupt practices must account to the Integrity Commission immediately or face disciplinary processes.” The ANC constitution defines “accountable” to mean “to answer for, or explain, one’s conduct, decisions or acts.” An obvious flaw in the Ramaphosa approach is that the quality of the information, accusation or report implicating a cadre in corrupt practices does not matter.  Even victims of politically inspired fake news or political hatchet jobs will be required to “account” to the “Integrity Commission immediately  or face disciplinary processes.” They must address reports and accusations even where there is no charging document formally presented by the appropriate disciplinary bodies established by the ANC.

 

It is noteworthy than Ramaphosa’s dictatorial stance also runs counter to Rule 3 (the Character of the ANC) and specifically, 3.2 which states ANC  “policies are determined by the membership and its leadership is accountable to the membership in terms of the procedures laid down in this Constitution.”  Another conundrum is posed by Section 5.2.9 which defines it as a “duty” of ANC members to “[c]hallenge, within the branch, any decision taken by the branch in breach of fair and just administrative procedure.” It is inconceivable that an ANC branch will implement or enforce a decision similar to that advocated by Ramaphosa which is clearly in “breach of fair and just administrative procedure.”

 

The Integrity Commission is placed between the rock and the hard place.  Under Rule 24.2 the “Officials and NEC may refer to the Integrity Commission any unethical or immoral conduct by a member which brings or could bring of has the potential to bring or as a consequence thereof brings the ANC into disrepute.” But Ramaphosa turns the principle upside down by claiming that a “cadre accused of, or reported to be involved in, corrupt practices must account to the Integrity Commission immediately or face disciplinary processes.”  It is unclear whether the duty to account is triggered by a mere accusation or report of corrupt practices from any quarter or source no matter how unreliable or whether it must emanate from the “officials and NEC” as stated in the Constitution.

 

Rule 25.2 imposes upon all ANC members, office bearers and public representatives the “duty to familiarise themselves with the contents of this Constitution, Standing Orders, Rules, Regulations, Resolutions and policies adopted or made in terms of the Constitution.” Those who fail, refuse and/or neglect to abide by the provisions of the Constitution of the ANC, its Standing Orders, Rules, Regulations, Resolutions and policies adopted or made in terms of the Constitution shall be liable to be disciplined in terms of this Constitution. (See, 25.3). To cinch the guiding principle, Rule 25.5  states: “Notwithstanding a principle of this Constitution that a member is presumed innocent until proven guilty, the charged member, in disciplinary proceedings, shall be presumed to have knowledge of the documents and information referred to in Rule 25.2 above and shall bear the onus of rebutting this presumption.

 

It appears that Ramaphosa and his faction in the ANC have failed to properly understand the ANC constitution or at least formally amend it to be in line with their factionalist agenda. Simply put, Rule 25.17 contains a laundry list of acts which “shall constitute misconduct in respect of which disciplinary proceedings may be invoked and instituted against him or her.” Being “accused of, or reported to be involved in, corrupt practices” is simply not listed as a misconduct.  Nor is a mere accusation or report of involvement in corrupt practices taken as substantive evidence of misconduct.

 

Ramaphosa attempts to sidestep this constitutional hurdle by merely claiming that people “who fail to give an acceptable explanation or to voluntarily step down while they face disciplinary, investigative or prosecutorial procedures should be summarily suspended.”  That alone is grossly at odds with the ANC constitution which makes no provision for summary suspension of anyone before a fair and just disciplinary process takes place. Rule 25.43 is crystal clear - if a member has appealed against or applied to review a decision of a PDC or the NDC, the sanction imposed by such Disciplinary Committee shall only come into operation after the finalisation of the appeal or review, as the case may be.  Rule 25.44 allows suspension only where “a BDC, RDC, PDC or NDC has found a member guilty and imposed a sanction of suspension or expulsion.” In that event, “the Secretary General or Provincial Secretary, acting on the authority of the NEC, NWC, PEC or PWC, as the case may be, may suspend the membership of such member and provide reasons therefor, until the finalisation of any appeal or review application instituted by such member.”  Even in those circumstances, Rule 25.46 provides that “a member affected by such suspension may, within 14 (fourteen) days of being notified of such suspension, apply to the NDCA to set aside such suspension. The NDCA may set aside such suspension on good cause shown.

 

Another worrisome development which is likely to seriously undermine the ANC Integrity Commission is its apparent willingness to serve as a willing, pliable and ever-ready weapon for those steeped in ANC factional battles. ANC Secretary General Magashule is reported to have done a television interview with Newzroom Afrika, in which he said he would never step aside due to corruption allegations. He elaborated: “That is how the enemy is planning to finish the ANC…A member of the ANC is entitled to be treated as a citizen. Fairness, the rule of law (and)  the rule of natural justice is what you and I expect. You just come tomorrow and say Magashule was involved in this, therefore I must step aside. I will never do that”, he told the broadcaster.  For this alleged menial sin, SG Magashule has allegedly been called to account for these absolutely correct statements of law which are fully in line with the ANC constitution and that of the country.

 

Magashule’s claim that an ANC member is entitled to be treated as a citizen is fully anchored in Section 19 of the Constitution which provides:

"Every citizen is free to make political choices, which includes the right -

(a) To form a political party;

(b) To participate in the activities of, or recruit members for, a political party; and (c) To campaign for a political party or cause."  

 

As the Constitutional Court stated in Ramakatsa vs Magashule, the constitution of a political party performs an important function in the exercise by a citizen of his entrenched right in section 19 of the Bill of Rights. It is the instrument through which a member of a political party exercises his right in subsection (1)(b) to "participate in the activities of a political party." This important citizenship right cannot be taken away unilaterally at the whim of a dictatorial President. The Court in Ramakatsa acknowledged this when it said that: "The constitutions of political parties are the instruments which facilitate and regulate participation by members in the activities of a political party, consistent with the Constitution which is our supreme law." It stands to reason that a breach of the rules of a political party may consequently also give rise to a claim founded on the infringement of the underlying constitutional right in section 19 of the Bill of Rights.  The ANC constitution enshrines the principles of presumption of “innocence until proven guilty” and sets forth fairness and justice as the cornerstone of the ANC disciplinary processes.  The President’s opportunistic attempt to hijack the popular anti-corruption sentiment to label his opponents, actual or perceived, as corrupt and deserving of removal from office of party activities is doomed to fail.

 

The scourge of corruption is not a problem unique to the ANC and requires the concerted efforts of all citizens regardless of party affiliations or loyalties to combat it. The President is correct when he states that the “ANC and its members must continue to respect the Constitution of the country and the rule of law.”  But he is dead wrong when he implies that a lynch-mob approach to corruption can be reconciled with the Constitution and the rule of law.