By Paul Ngobeni
There are ominous signs that President Cyril Ramaphosa is ready to unleash war on his political enemies and rivals, purely for his own political survival. Public institutions and criminal prosecutions will be weaponised to ensure that his political rivals are eliminated or seriously hobbled before the ANC’s December elective conference.
Ramaphosa’s multipronged strategy involves indirect unconstitutional changes to the ANC Constitution, under the guise of strengthening the rules for the nomination and vetting of candidates.
Under the rules, published on July 25, no one may contest ANC elections for leadership if: “4.2.1 They have been found guilty of or have been charged with unethical or immoral conduct, or any serious crime, or corruption.” A serious crime is defined by the executive committee as a crime that could result in a prison sentence of longer than six months. A charge is defined as being charged in a court of law.
This rule applies also to members who have been charged with any criminal offences in cases that are being heard or where a judgment or sentence is being appealed. In clear violation of the doublejeopardy principle, members who were convicted by a disciplinary committee for contravening the ANC Code of Conduct and who “had their membership suspended for any period in the last ten years” are barred from contesting, even where they dutifully complied with the terms of the sanctions imposed over a decade ago.
The draconian rule applies even when a member is awaiting the outcome of a disciplinary hearing or an appeal. The unconstitutional rules signal the imminent arrival of the totalitarian night or the wholesale indictment of ANC candidates, public officials and party leaders who pose a threat to Ramaphosa’s ambitions for re-election.
Under the Constitution, every South Africa citizen who is qualified to vote is eligible to be a member of the National Assembly, with the exception of those who have been convicted of an offence and sentenced to more than a year in prison without the option of a fine.
The ANC changed all that to render ANC members ineligible, even if they qualified to become members of Parliament. The ANC constitution states unequivocally that all disciplinary proceedings must be “just and fair”. A “member is presumed innocent until proven guilty… has a chance to defend herself or himself… A member has the right to appeal”. But these rights, including the right to appeal, are rendered nugatory for the sake of political expediency and electioneering.
The principle of double jeopardy is violated by excluding members almost 10 years after their cases were adjudicated upon and they received a suspension, as opposed to expulsion for the offence. The newly promulgated rules reflect the handiwork of factionalists who are hell-bent on abusing legal processes to sideline potential rival candidates opposed to Ramaphosa.
The second prong of Ramaphosa’s re-election strategy involves the president’s abuse of the Special Investigating Unit (SIU), the Hawks and the National Prosecuting Authority (NPA) to target officials or activists perceived to pose a political threat to his re-election.
A few weeks ago, National Director of Public Prosecutions advocate Shamila Batohi and Hawks boss Godfrey Lebeya met to discuss the final State Capture Inquiry report. They expressed their commitment to ensuring accountability for those implicated and said they were committed to enhancing collaboration and sharing resources and expertise to ensure the most effective prosecution-guided approach.
But it is undeniable that the selection of those targeted for prosecution will be dictated by political bias. On the same day the ANC election rules were announced, July 25, Ramaphosa also announced five proclamations authorising the SIU to investigate corruption and maladministration in at least 14 government entities and departments, including the Health Department and the South African Social Security Agency.
The investigations appear to have a focus on KwaZulu-Natal, where former KZN premier and Health Minister Zweli Mkhize has emerged as a presidential candidate who poses a credible threat to Ramaphosa’s re-election. It is no coincidence that the investigation and witch-hunt has its focus on mostly KZN in general and the health sector in particular.
The appetite or enthusiasm for Mkhize’s presidency will be suppressed through a series of intimidation tactics, including groundless investigations, threats, and arrests and prosecutions on spurious grounds. The SIU is a proverbial guided missile directed by the president. We all know that the SIU can initiate investigations only if it has presidential approval – it cannot exercise its investigative powers in the absence of a Presidential Proclamation.
This makes it likely that the SIU mandate can be a product of presidential fiat or whim, which will increasingly be directed towards his political rivals and away from his allies, such as Gwede Mantashe and Enoch Godongwana. The matter of Masuku versus Special Investigations Unit and Others (April 12, 2021) highlights potential abuses.
The SIU report was used to remove Dr Bandile Masuku from his MEC position and inflict a stigma upon him. It did not matter that Masuku was not guilty of a crime or delictual wrongdoing.
The Court said: “(67)… The SIU saw no crime having been committed by Dr Masuku. The SIU saw no basis for civil action against Dr Masuku. Indeed, it decided there was no action it could or should take.” Ramaphosa’s predilection for the SIU probes is easily explained – they can readily be weaponised, given the selective and instrumental nature of the investigations as determined by Ramaphosa.
Untested and unsubstantiated allegations can be hurled at subjects, motivated by political considerations and propaganda goals of the fake anti-corruption campaign.
Just like the Masuku case, SIU reports will increasingly be used for propaganda attacks on persons subjected to investigations, and selective prosecution/justice will become the order of the day. It is expected that the mass arrest of politicians not favoured by Ramaphosa will be effected soon.
On August 30, the Investigative Directorate spokesperson, Sindiswe Seboka, revealed that their next arrests “might actually shock everyone”. There are rumours that a relative of Pravin Gordhan is likely to be parachuted to a senior position in the NPA and is expected to lead a “hit squad” of NPA prosecutors tasked with, among others, defensive manoeuvres to protect Ramaphosa and his allies, including those implicated in the State Capture Report, from the consequences of their alleged criminal actions.
As another court admonished in Berger versus United States, a prosecutor’s overarching duty is “not that (she) shall win a case, but that justice shall be done”. Our prosecutors are thus much more than lawyers for a party to a dispute. They are the guardians of the constitutional and legal rights of everyone who crosses their paths and of our constitutional system of administering justice.
The law prohibits a prosecutor from pursuing an investigation or prosecution that is – or appears to be – politically motivated or, that violates the accused’s right to fairness in the administration of justice. Prosecutors who find themselves being used as Ramaphosa’s Trojan horses in his obsessive quest for re-election as president must tread carefully.
If prosecutors recklessly charge persons with sundry crimes for the purpose of side-lining them during the ANC elective conference, then such conduct would invite massive lawsuits for violations of constitutional rights, including freedom of association and malicious prosecution.
* Ngobeni is a Juris Doctor graduate of New York University and legal analyst.
