The Zondo Commission’s inquiry into parliamentary oversight continued on Thursday (April 29), with President Cyril Ramaphosa providing testimony in his capacity as president of the ANC.
Advocate Alec Freund SC took over as evidence leader for the morning session. Freund reminded Ramaphosa of the overall objective – to understand what happened, why it happened, and what can be done to prevent it from happening again.
The morning session covered the role of the ANC in parliament, effective parliamentary oversight, the constitutional powers of parliament, the role of the ANC political committee, and the tension between the oath of office taken by an ANC member of parliament (MP), and that MP’s loyalty to the party.
The role of the ANC in parliament
Freund summed up the duties of parliament to include exercising due oversight over the executive, overseeing and scrutinising executive action and holding the executive accountable. This is a constitutional obligation.
Freund referred Ramaphosa to the Constitutional Court judgment on the expenditure related to former president Jacob Zuma’s Nkandla homestead handed down on March 31, 2016.
The court found that:
- The national assembly had failed in its constitutional obligation of oversight.
- The Public Protector’s Report should have triggered an investigation.
Where a president is implicated in conduct that is unconstitutional, illegal, improper, the national assembly is obliged by the constitution to establish whether there is merit, and take appropriate action.
Members of parliament takes an oath of office that they will uphold the provisions of the constitution.
The constitutional powers of parliament
The national assembly may summons any person to parliament to give evidence and produce documents under oath. The national assembly also has the right to conduct public hearings.
Freund cited two examples of effective parliamentary oversight:
- In May 2017, the national assembly conducted a public inquiry into Eskom. The report was finalised in November 2018, and concluded that it was “patently clear that there was undue influence by private individuals and companies over the appointment of Eskom board members and procurement decisions”. Freund said this allegation had been made many years earlier.
- Another example was the ad hoc inquiry into the SABC board in November 2016 and it was reported in February 2017.
Allegations of Gupta influence, state capture and corruption
Freund referred to Ramaphosa’s affidavit in which Ramaphosa sketched the background of the various allegations: the alleged undue influence of the Guptas, alleged state capture, and alleged corruption.
Ramaphosa had stated in the affidavit that the ANC did not have direct evidence of all the allegations, and did not have the investigative capacity to probe the allegations.
Freund put it to Ramaphosa: “The ANC may not have investigative capacity to probe the allegations, but parliament does have it.”
Ramaphosa did not deal with the second part of Freund’s statement that parliament did have the capacity and the power to conduct an investigation, and did not exercise it.
Freund also referred to the evidence given by the parliamentary house chair Cedric Frolick, who requested that parliament investigate the allegations concerning the Gupta leaks.
Ramaphosa said that once the “Gupta emails came out it became clear to us that there must be a response of one sort or another”.
Ramaphosa referred to the 53rd ANC national conference in 2012 where a decision was taken to get parliament to be “more activist” when it came to oversight and accountability whether at national provincial or lower level – “but it took time for this to take root”.
Freund asked about Ramaphosa’s personal involvement as deputy president and president in parliamentary oversight. As deputy president he was appointed as leader of government business. “What role does this play in parliamentary oversight?” asked Freund.
This resulted in a long explanation that didn’t answer the question.
Further Gupta-related incidents
Ramaphosa was asked to comment on the allegation made by Mcebisi Jonas that the Guptas had offered him the job of finance minister.
Ramaphosa explained that “we set [a] process through [the] ANC secretary-general to engage with Mcebisi Jonas and get to the bottom” of his allegation.
Ramaphosa agreed with Freund that if the Gupta allegations were true, it is a subversion of the constitution. He further commented: “If true, this to me would be unbecoming.”
At some point, while Ramaphosa was going on about the processes that had begun, commission chair Deputy Chief Justice Raymond Zondo interjected, and reminded him that the Gupta leaks occurred five years ago. Ramaphosa conceded that there was “a dropping of the ball”.
Ramaphosa said: “I am not here to make excuses, and I am not here to defend the indefensible. But I am also here to explain some of the lapses that have happened.”
But he didn’t.
Freund asked Ramaphosa if the balance of power within the ANC structure was the reason for the delay in the investigation. Ramaphosa replied: “Yes there was a contestation … there has been a system failure and we need to correct the wrongs of the past.”
Delay in the investigation
Freund referred to the adoption of an ‘oversight and accountability model’ by parliament in 2009, which to this day has still not been implemented.
Ramaphosa replied that “there was recognition that parliamentary structures should be more active … and that it should be more activist people centred”.
Ramaphosa attempted to clarify by explaining that in “political speech” parliament was a centre of “activism and the struggle”.
The Gupta leaks indicated that parliament had not been doing its work.
Ramaphosa was also questioned on the ANC political committee, which gives strategic direction to the caucus. He said “the committee gives guidance to ANC MPs” and that “the ANC sees parliament as an important structure that requires such a committee”.
Freund put it to Ramaphosa that there is a view that the political committee was established to exert direct control over ANC MPs.
Ramaphosa replied “that is fanciful”.
Toeing the party line versus MPs’ constitutional duty
Freund then questioned Ramaphosa on the question of party discipline, such as the vote of no confidence in the former president.
Freund remarked that MPs take an oath of office, and that whatever the views of the party, it is the duty of the member to act within their own understanding of constitutional issues.
Ramaphosa replied that representatives represent the party, they don’t represent themselves.
“The party functions as a collective,” said Ramaphosa, adding that “this happens all over the world”.
It is clear that in Ramaphosa’s mind, the party line trumps the constitution.
Uncomfortable questions remain:
- Why parliament did not hold the national executive to account.
- Whether a member of parliament breaches the constitution if they vote according to party dictate, and not according to their conscience.