JUDITH FEBRUARY: Busisiwe Mkhwebane, what is this madness?
“There are seasons in every country when noise and impudence pass current for worth; and in popular commotions especially, the clamours of interested and factious men are often mistaken for patriotism.” - Publius letter II, Alexander Hamilton, October 1778
Hamilton seems apt this week for a number of reasons, not only related to South Africa, though it feels particularly apposite when thinking about the reports released by the Public Protector, Advocate Busisiwe Mkhwebane, recently. It started last Friday with an announcement that Mkhwebane would be releasing ‘several reports’ related to various investigations she has conducted. Journalists immediately started scurrying around asking questions about ‘impeachment’ in case one of the reports was related to the Bosasa donation and President Ramaphosa. There are two ways to remove a President (other than a party ‘recall’ of course - we know that one only too well).
In terms of s89 (1), the President can be removed for the following reasons by a resolution supported by 2/3 majority of the National Assembly:
a) a serious violation of the Constitution or the law,
b) serious misconduct,
c) inability to perform the functions of office.
In terms of s102 (2), a President can be removed if there is a motion of no confidence in the President voted upon by a majority of the National Assembly. This means the President and his entire Cabinet of ministers and deputy ministers ‘must resign’.
It turned out, however, that the report Mkhwebane saved until last was the one involving Pravin Gordhan, Ivan Pillay and the establishment of the Sars ‘rogue' unit. Despite 10 investigations into the establishment of the unit since 2009, with no charges or arrests forthcoming, Mkhwebane has single-mindedly taken on this matter like a crusader.
She has ordered Ramaphosa to take institute disciplinary action against Gordhan within 30 days and has instructed an array of institutions to deal with the matter, including the NPA and Parliament. She insists that only a court interdict can suspend her findings. Gordhan has now filed urgent papers to interdict the remedial action. His main application also asks that the entire report be set aside. Gordhan has not held back in his court papers asserting that Mkhwebane has "personally, dishonestly or alternatively recklessly made her findings...".
One cannot blame Gordhan for reaching that conclusion given the animus with which the Public Protector appears to be pursuing these matters against him. In addition, in terms of the Public Protector Act, the Public Protector must justify or provide “special circumstances” to entertain any complaints regarding events or conduct that are more than two years old. Mkhwebane has not done so.
Much has been written about Mkhwebane’s confusing report that seems, in part, to rely on documents, which are not in the public domain, and on undated submissions. In addition, the whole saga simply seems to be out of all proportion and reminiscent of the approach this Public Protector has taken by inserting herself into political battles. She seems intent on wasting her office’s scarce resources on matters which have already been traversed instead of applying her mind to the myriad instances of mismanagement we hear of daily.
In 2017, in a bizarre twist arising out of her recommendations for remedial action in the Absa ‘lifeboat’ matter, Mkhwebane recommended that Parliament, via its Justice committee, ‘must’ initiate a process that would ensure the amendment of s224 of the Constitution. That section deals with the role, function and independence of the South African reserve Bank (Sarb).
Going even further, Mkhwebane provided draft wording for the changing of s224. It currently reads:
The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic.
The Public Protector’s mealy-mouthed wording would read:
The primary object of the Sarb is to promote balanced and sustainable economic growth, while ensuring that the socio-economic well being of the citizens are protected.
Deleted therefore is the mandate of the bank to protect the value of the currency.
The argument about the powers of the Sarb is a not a new one. Cosatu has always argued that the bank’s role ought to be revisited. In fact, in 2016 both Cosatu and the Economic Freedom Fighters (EFF) called for the ‘nationalisation’ of the Reserve Bank.
This remedial action was strange, to say the least, as was Mkhwebane’s belief that it was even within her power to suggest such economic tinkering. It raised uncomfortable but necessary questions about the Public Protector herself and her integrity. The Gauteng High Court subsequently set aside the findings and ordered a personal costs order against Mkhwebane. Since then she has pursued matters selectively while ignoring investigations of import.
Last year she hesitatingly agreed to investigate the #GuptaLeaks emails, but not without the caveat that her office lacked the resources and so would probably not be able to do a complete job. She has also certainly not pursued the Vrede dairy farm matter with any such alacrity as she has pursued Gordhan. To create even more melodrama, last month Mkhwebane took to YouTube to defend her actions against Gordhan and she has spoken about attempts to poison her bodyguard despite the police saying there was no evidence of this.
If one were to be charitable, one could say that she does not have a full grasp of the law or the powers of her office. Alternatively, one might say that Mkhwebane has become a political player herself. ANC secretary-general Ace Magashule has come out in support of Mkhwebane, while on the other hand, Gwede Mantashe, ANC party chair, has slammed her conduct. One cannot help but notice the factional battle lines which have been drawn here, and so one cannot help but draw the inexorable conclusion that the Public Protector’s office is being weaponised against not only Gordhan but the President himself.
While the law should be allowed to take its course in the interdict and review process, there does seem to be enough in the public domain and her reports to suggest that Mkhwebane is unfit for office and should be removed from her position. This will be a tricky move lest Ramaphosa and his allies within the ANC are seen to be fighting proxy political battles themselves through Mkhwebane’s removal. She has probably made that calculation already given her emboldened stance. Some have already spoken of a constitutional crisis if this matter turns into a stalemate, for it is as much political as it is legal and we are now firmly in the ambit of lawfare. We should not get ahead of ourselves. By inserting herself so obviously into the political game - and unfortunately for her, with such poor lawyering - Mkhwebane may well become hoist by her own petard. Her irrationality, perhaps not in the legal sense, but in the ordinary sense, is apparent.
Mkhwebane ends her bizarre report into the Gordhan matter with a quote from Nelson Mandela himself, but if that was not enough, she turned Biblical. "The book of Esther, Chapter 4, reads thus: 'And so I will go to the King, which is against the law; and if I perish, I perish!'"
What is this madness, one might wonder? We need wonder no more - the best-known charlatans have been known to invoke God when the moment is ripe.
Judith February based at the Institute for Security Studies and is also a Visiting Fellow at the Wits School of Governance. She is the author of 'Turning and turning: exploring the complexities of South Africa’s democracy' which is available. Follow her on Twitter: @judith_february