JUDITH FEBRUARY: It's clear Mkhwebane is unfit for office
We had an inkling that Public Protector Busisiwe Mkhwebane didn’t have a full grasp of her job but we probably didn’t realise it was that bad until this week’s Constitutional Court judgment in the South African reserve Bank matter was handed down.
It was scathing. The ConCourt found that Mkhwebane had made numerous misstatements, like misrepresenting under oath, (failed) to disclose material meetings, ‘obfuscated’ and was not ‘frank’ with the court.
It all painted a picture of a woman who is not only incompetent but who is also dishonest and someone who should not be heading up a constitutional body. Immediately after the judgment was handed down, Mkhwebane said she found ‘hope’ in Chief Justice Mogoeng Moegoeng’s minority dissenting judgment. Unfortunately for her, however, the majority judgment is what is binding and final.
It is now abundantly clear that we have a Public Protector who is unfit for office. In terms of Section 194 of the Constitution, a Public Protector can be removed from office on the grounds of misconduct, incapacity or incompetence. There appears to be enough in the ConCourt judgment alone to make out a case for misconduct as well as incompetence. But as usual, the law is not a straight line and her removal may prove tricky. The Public Protector is accountable to the National Assembly and it is also the National Assembly which deals with the grave matter of removal of a Public Protector.
In the two Economic Freedom Fighters' (EFF) cases heard before the ConCourt regarding the removal of a president in terms of Section 89 of the Constitution, the Court found that certain rules had to be in place in terms of which Parliament was able to then embark on the Section 89 process. These rules were needed for a factual enquiry into such a removal.
Since the requirements for removal of a president and that of a Public Protector are similar, one might argue that Parliamentary rules need to be in place before the process of removal can commence.
However, this has not happened - there are no Parliamentary Rules in place for the removal of a Public Protector, only reference to it in Appendix B of the Rules. The Democratic Alliance’s John Steenhuisen lodged a complaint against Mkhwebane as far back at 2017. Since then, Parliament has been rather lukewarm about it. However, the current Speaker Thandi Modise has referred the matter to the justice portfolio committee. The Public Protector Act as amended in 2003 says the matter can be referred to ‘a committee’ of the National Assembly.
There is a view that this matter ought to be dealt with by an ad hoc committee of Parliament since the Public Protector is appointed via a process initiated by an ad hoc committee. Modise has, however, persisted in her view that the Justice committee deal with the matter.
Already Mkhwebane has threatened to take court action against any ‘unlawful’ proceedings against her. That aside, removing the head of a constitutional body is difficult and that is appropriate. If it were easy, former President Jacob Zuma would have removed the previous Public Protector Thuli Madonsela immediately when she became inconvenient and pesky about Nkandla.
All that aside, even if a Parliamentary committee finds that the Public Protector is incompetent, she can only be removed by a 2/3 majority of the National Assembly, viz, 267 votes. Of course, the African National Congress (ANC) holds 230 seats in Parliament and the Democratic Alliance 84; so those two parties would comfortably make the 267 mark and then some. It is though abundantly clear that the ANC is divided on the matter. Many within the ANC support Mkhwebane - any surprise that Tony Yengeni led the charge in her defence on Twitter this past week?
ANC secretary-general Ace Magashule has also come out in Mkhwebane’s defence to protect her from cries of her incompetence. In addition, the EFF has come out in support of Mkhwebane; they too have an interest in the state capture project continuing. One is known by one’s friends, the saying goes.
And so the battle lines will yet again fall between the factions of the ANC - those linked to the state capture project seem to have a vested interested in Mkhwebane remaining in office while those who seek to reform the state understand that one cannot have a constitutional body headed up by a compromised individual who seems to be on a crusade against Gordhan and Ramaphosa while ignoring the obvious corruption allegations against Magashule and Mosebenzi Zwane in the Estina dairy matter.
The question is therefore whether the ANC is able to unite around a common position on the Public Protector or whether it will simply stall the process, seem to move it along yet, in reality, the matter is actually going nowhere slowly. This would not be the first time this happens in Parliament. In addition, while Ramaphosa would no doubt wish to see the back of Mkhwebane, tactically he cannot be seen as trying to remove her because she is proving to be a noose around the neck of his Presidency. As an institutionalist, Ramaphosa will be well aware of the optics of such a move.
The DA supports the motion though in the recent Bosasa report involving the President, DA leader Musi Maimane seems bent on viewing Cyril Ramaphosa as Public Enemy No 1 in relation to corruption. Maimane was on the verge on racing to lay a charge of money laundering against the President but has decided to wait pending the President’s review of the report.
What a curious bind the DA is in. With religious zeal Mmusi Maimane is pursuing this matter yet doesn’t seem to see the hypocrisy in his own position when he did not declare his own political donations in his leadership battle with Wilmot James. The position the DA holds is that the Public Protector is unfit for office and incompetent but it will treat each report on its individual merits. That seems to be disingenuous. Either someone is wholly incompetent or they are not.
We are now firmly in the territory of lawfare and so proxy political battles are being fought in the courts and our institutions are becoming weaponised by those who would seek to continue the capture of the state. The Ahmed Kathrada Foundation has led the charge of civil society organisations fighting back against the ‘other fight back’ by the corrupt and captured. Citizens have to continue the resistance against corruption and once again make our voices heard in a broad cross-sectoral alliance to save the state from even more plunder.
Judith February is 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