The Anatomy of an Impeachment Debate

Tomorrow, I will become the first Premier in the history of our democracy to face a motion of impeachment.  It will be tabled by the official opposition in the Western Cape Legislature, the ANC, and debated in the House.

According to a statement announcing their intention, the ANC will bring this motion in terms of Section 130 (3) of the National Constitution.  This section says the following:

130 (3).  The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of -

(a) a serious violation of the Constitution or the law;

(b) serious misconduct; or

(c) inability to perform the functions of office.

To put it in ordinary language, the ANC must convince 28 members of the Provincial Legislature that I am guilty of serious misconduct, or a serious violation of the Constitution or the law, or that I am unable to perform the functions of the office of Premier.

I am fascinated to hear how they will try to motivate (let alone prove) any of the above.  The state has not even charged me, let alone found me guilty of a serious violation of the constitution or the law, or any form of misconduct (let alone serious misconduct).   And it will be interesting to see what evidence the ANC will produce to prove that I am unable to fulfil my functions.

So I go into a debate tomorrow, not knowing what law or which section of the Constitution I am alleged to have violated.  I have no idea what the basis is of any “serious misconduct” I am alleged to have committed.  And I have no idea where I have failed to fulfil my functions.  It violates the principles of natural justice to make me answer unspecified (yet extremely serious) allegations.  But these principles have long since ceased to matter to our opposition party.

As with so many other things, this will all turn out to be ANC grandstanding, as they bring a frivolous and vexatious motion that actually undermines the serious purpose for which this constitutional clause was intended.

I can only assume this motion was meant to be the culmination of the “scandal” the ANC is trying to manufacture against me, based on claims that I employed a police intelligence officer to spy on our political opponents and/or DA colleagues.   The fact that the ANC makes wild allegations does not make them true.   

In fact, any sensible analyst should reach the opposite conclusion.  Past experience would tell them that previous attempts to manufacture spy scandals against me have been exposed in court as politically-motivated ANC plots.  This one is no different.

For those who have just tuned in to this soap opera, here is a summary of the story so far:

In 2009, the DA won the Western Cape from the ANC.  Around the same time, I received several warnings that cabinet members were under surveillance by the National Intelligence Agency (NIA).  Representatives of the NIA attended a cabinet meeting, and we asked them to confirm, in writing, that this was not so.  This confirmation was not forthcoming, despite follow-up requests.

The Cabinet discussed this issue, and decided as a result of the NIA’s failure to provide us written assurances, to procure the services of a private service provider to de-bug cellphones, and install encryption software to make the interception of data more difficult.  This decision, which is recorded in the Cabinet minutes, is entirely legal, and violates no law, let alone the constitution.  On the contrary, the constitution guarantees the right to privacy. 

We could therefore argue that the NIA’s refusal to give a written undertaking that this right was not being violated, was in itself a violation of the constitution. None of us, to our knowledge, were suspected of committing any crime. The only reason we could have been under surveillance was for a “fishing expedition,” to see if there was anything in our personal lives that could be used against us politically.

The cabinet request for the use of these encryption services went through the procurement process. I had absolutely nothing to do with it.

The next thing I knew, a man who turned out to be Mr Paul Scheepers, arrived in my office, and took my phone. I interacted with him very briefly before leaving for a meeting.  He worked on my phone and returned it to my secretary.  As far as I am aware, I have not met him before or since.  I did not know him, nor did I know he was a policeman.

The ANC is desperate to prove the contrary, but they can’t because I am telling the truth.  Their invented story is that I knew Paul Scheepers; that I knew that he was a crime intelligence officer; and that I hired him to spy on my opponents inside and outside the DA, under the pre-text of “debugging” cell phones.  This is complete fiction.

Perhaps they invented this story because they think if they throw enough mud at me, some of it will stick.  Or if they tell a lie often enough, some people may believe it.  They are wrong.  Their shenanigans were exposed before, when the Erasmus Commission was revealed for what it was  --  a political hit squad against a DA-led government.  We will expose them again.

The real reason the ANC has become so desperate to manufacture this scandal, is in order to deflect attention from their own nascent crises.  The irony is that their Western Cape leader, Marius Fransman is the person alleged to have committed gross violations of the law -- allegations that Scheepers allegedly uncovered in the course of his police work (unconnected to the debugging he undertook for the provincial government), and that are contained in affidavits that could emerge in a pending court case.

Instead of denying the allegations, Fransman is now effectively confirming them, by claiming that the only way Scheepers could have found this information was if he were spying on Fransman on my behalf.  To involve me is yet another absurd conspiracy theory, driven by a guilty conscience.

The ANC started its diversionary tactics ten days ago when it laid a complaint against me under the National Strategic Intelligence Act 39 of 1994.  Nowhere does this Act make it an offence to procure a private contractor.  In fact, the National Parliament itself has done so, for the purpose of proactive investigations against its own staff.  In our case, no investigative capacity was procured at all.  We merely asked for our own cell phones to be protected.  In which universe could this possibly be illegal?

Yet the Hawks have been very quick to investigate these allegations, quite unlike the lethargic approach, for example, to very serious charges that the Mayor and I laid against the ANCYL when we had written evidence of their attempts to make the Western Cape ungovernable.

Furthermore what have the Hawks, or any other Crime Intelligence agency done to investigate the very serious crimes alleged to have been committed by senior members of both the ANC and South African Police Service (SAPS), that are contained in the affidavits in Scheepers’ possession?  Why have the Hawks allowed themselves to become  actively involved in trying to deflect attention from the real issues here?

The Hawks’ investigative haste is even more remarkable given the fact that, even if I had done what the ANC alleges I did (which I did not), this would  still not be an offence for which I or anyone else could be charged criminally under this Act. So what are the Hawks investigating? They must surely know that the charge that the ANC has laid against me has no basis in law. Have the Hawks also been captured by the ANC?  Are they now allowing themselves to be used as part of a political vendetta?

The ANC is playing games;  they have nothing against me or the provincial cabinet, and they know it.  They are abusing the police, the Hawks, and the Provincial Legislature and the media for their own political purposes, and to cover up their own alleged crimes. And far too many seem to be falling for it.

Although the impeachment debate will focus on me, it has actually nothing to do with me.  It should be a grave warning to every single South African about the extent to which the ANC is prepared to go to violate the Constitution and the law in order to protect their positions of power, and cover up their own crimes.  I may be in the front-line of fire at present.  But every single South African knows that their time will come unless we can defend our hard-won rights and freedoms.

There is, of course, a sub-plot in this melodrama, which Marius Fransman let slip both in the legislature and in a radio debate with my spokesman Michael Mpofu.  Fransman revealed that the source of the allegations that I was spying on my own colleagues was Lennit Max and Theuns Botha, the former provincial Ministers of Community Safety and Health, respectively.

They both know that I had no need to spy on anyone. Nor would I.  Information was drawn to my attention, without any need for spies, and with enough substantiation to make it essential for me to act.  The fact that both these gentlemen are no longer part of the provincial cabinet says what needs to be said, and I will refrain from airing the issue any further at this stage until due process in terms of the rules has been followed.

Interestingly, it emerged over the weekend that it was Lennit Max who knew Mr Paul Scheepers, and also knew he was a policeman.  In fact, I also learned that Lennit Max had previously made use of Scheepers’ services in a private investigative matter.  And it also emerged that Lennit Max was the only Cabinet Minister who refused to have his cell-phone debugged.

These shenanigans and manipulations go beyond the normal cut-and-thrust of the political process because they seek to undermine the constitution and the law.  That is why we have to take a stand.  That is why we have to see through the intricate web of smoke and mirrors that the ANC is trying to create in order to obscure its real motives.

It is also entirely misleading for the media to represent this as a “spy vs spy” row.  It is blatant power abuse by the ANC and SAPS to cover up alleged criminal activities of its own members.  In doing so they are capturing state institutions that should remain independent, and using unlawful means to discredit its opposition.  If we allow this to succeed, we do so at our peril.

When they eventually come for you, there will be no-one left to speak up.

This article by Helen Zille first appeared in Inside Government, the online newsletter of the Premier of the Western Cape.