‘Any abuse of power, either for oneself or to favour one group over others, is an attack on the collective good. For a President, it is the ultimate betrayal of his or her duties both as the embodiment of the public good and its supreme guarantor. An impeachment, therefore, is the strongest form of punishment that democracies could devise to register their unequivocal disapproval.’

In his opinion piece on the Mail & Guardian Online site, the University of Johannesburg’s Professor Mcebisi Ndletyana says in refining what exactly an impeachable offence is, our Constitution says this must be reserved for a ‘serious violation of the Constitution or the law’ and ‘serious misconduct’.

He adds the report of the section 89 independent panel to determine whether President Cyril Ramaphosa should face an impeachment process reminds us of the guidelines: a ‘serious violation of the Constitution or the law’ means ‘behaviour by the President amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith’; and ‘serious misconduct is defined to mean improper behaviour performed by the President in bad faith’.

However, Ndletyana says the limited powers of the panel ‘seem to have predisposed it to deliver a highly questionable outcome’, and that its inquiry was ‘complicated by the nature of the problem it was meant to investigate’.

He adds: ‘The panel was ill-equipped for the complexity of the matter. It had no powers to subpoena anybody; had no resources to authenticate what was presented before it; was ignored by individuals and institutions with pertinent knowledge of what took place at Phala Phala and in the immediate aftermath, and had to rely largely on hearsay information presented before it and could not orally question those who submitted the information.’

Equally noteworthy, he says, is the manner in which the panel interpreted the hearsay information.

‘It gives the hearsay information the benefit of doubt – that it is probably true – while casting doubts on Ramaphosa’s version of what happened.’

Ndletyana believes the weaknesses of the report may be a reflection of the panel’s limitations.

‘If the panel had powers to subpoena evidence or witnesses, and received collaboration from the Hawks, it could have reached a less questionable outcome. While he accepts it was an a preliminary investigation, he says it had to come up with sufficient evidence that there may be a ‘smoking gun’. ‘Was it not open to the panel to say that the evidence before it was inconclusive?, he asks.

Ndletyana says Ramaphosa seems to have become a suspect on the basis of the old, medieval legal principle of ‘conviction by notoriety’.

‘The panel,’ he says, ‘appears to believe that he was already tainted, therefore, didn’t attach any credence to his testimony, and simply believed the hearsay of his accusers.’

He adds: ‘The report is simply riddled with loopholes, which a court may possibly clarify. The recourse to the court is yet another indication of the weaknesses inherent in an impeachment process. It pretends to be a legal process, when it is fundamentally a political process, a ‘weapon in political warfare’.

Ndletyana concludes: ‘The panellists had the unenviable task of trying to evaluate whether or not the President breached any laws while seemingly restrained from applying full legal standards in their evaluation. Yet, they’re expected to deliver a legally sound outcome. A court may well set the report aside. In doing so, it will hopefully unearth all the relevant facts. There are many questions that remain unanswered here. If the court is unable to provide all the answers, one hopes it will recommend a remedy, or a route, towards the truth.’

Full opinion piece on the Mail & Guardian Online site