JUDITH FEBRUARY: Why removing Mkhwebane as PP is in the public interest
The process to remove the Public Protector, Busisiwe Mkhwebane, is chugging along. Perhaps not untypically for the office of the Public Protector, the process is now the subject of litigation.
Mkhwebane does seem to spend much of her time on litigation, defending herself and her office in one way or another. The process for her removal was started in 2017 and then subject to the predictable politics of Parliament. Yet, in December 2019, rules were drafted regarding the removal of heads of Chapter 9 bodies such as the Public Protector. These rules give life to section 194 of the Constitution in terms of which a Public Protector can be removed from office on the grounds of misconduct, incapacity or incompetence.
Mkhwebane has, however, objected to the first part of the parliamentary process to remove her from office and she has brought an application to interdict against the those proceedings. Her legal counsel, Dali Mpofu, has levelled criticism against the Speaker of Parliament, Thandi Modise, as well as the Democratic Alliance (DA) for starting the removal proceedings.
Let's pause for a while to understand that Mkhwebane is using public money to fight this battle to remain in office. It is part of an unhealthy pattern, which has seen Mkhwebane at the receiving end of numerous losses in court.
Early on, we had an inkling that Mkhwebane didn’t have a full grasp of her job but we probably didn’t realise it was that bad until last year’s Constitutional Court judgment in the South African Reserve Bank (Sarb) matter was handed down.
It was scathing. The ConCourt found that Mkhwebane had made numerous misstatements, like misrepresenting under oath, (failure) to disclose material meetings, that she "obfuscated" and was not "frank" with the court.
It all painted a picture of someone who is not only incompetent, but who is also dishonest and who should not be heading up a constitutional body. There is enough in the ConCourt judgment alone to make out a case for misconduct as well as incompetence.
The Absa "lifeboat" matter further demonstrated Mkhwebane’s limited grasp of the law.
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 section 224 of the Constitution. That section deals with the role, function and independence of the Sarb.
Going even further, Mkhwebane provided draft wording for the changing of section 224. 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, was 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. The Congress of South African Trade Unions (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 Mkhwebane and her integrity. The High Court subsequently set aside the findings and ordered a personal costs order against the Public Protector. Since then, she has pursued matters selectively, while ignoring other investigations of importance.
Earlier this year, the Pretoria High Court judgment in the so-called #CR17 campaign matter was an excoriating one from a full bench. The High Court set aside the full report in which the Public Protector found that President Ramaphosa had deliberately misled Parliament when answering the DA’s Musi Maimane in relation to a R500,000 campaign donation. The Public Protector also found “merit” in a suspicion of money laundering and that “such a scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these moneys to the campaign”.
All her findings were set aside, however, and to add insult to injury, the court also ordered punitive costs against her. The judgment is strewn with findings that show Mkwebane is unable to exercise the powers of her office. She has, the court said, “an inability to process the facts before her… in a logical and fair-minded manner”. She lacked jurisdiction to even investigate #CR17 donations and made a “material error of law”. She clearly seemed overly zealous to investigate the flow of funds within the #CR17 campaign, even if it was outside of her jurisdiction to do so.
From the start, Mkhwebane 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 not entirely clear where the ANC stands on the matter. Many within the party support Mkhwebane - any surprise that Tony Yengeni led the charge in her defence on Twitter in the wake of the ConCourt judgment?
Perhaps unsurprisingly too, ANC secretary-general Ace Magashule has also come out in Mkhwebane’s defence to protect her from cries of her incompetence. The EFF has also come out in support of Mkhwebane, further complicating matters and creating unwelcome noise where calm heads should prevail.
And so the battle lines may well 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 Minister of Public Enterprises Pravin Gordhan and President Ramaphosa, while treading water on the more obvious corruption allegations against Magashule and Mosebenzi Zwane in the Estina Dairy matter.
Mkhwebane’s removal will be an unwelcome and arduous task. She has shown again and again that she is a political player adept at muddying the waters. Her counsel has tried to argue that there is a vendetta against Mkhwebane, by both the Speaker and the DA.
Given Mkhwebane’s record and the court findings against her, it is clear that Mkhwebane is unfit for office.
A parliamentary process to commence her removal is therefore in the public interest and in the interests of safeguarding the very Constitution Mkhwebane is meant to protect and defend.
Judith February is a lawyer, governance specialist and Visiting Fellow at the Wits School of Governance. She is the author of 'Turning and turning: exploring the complexities of South Africa’s democracy'. Follow her on Twitter: @judith_february