JUDITH FEBRUARY: Political factions will make Mkhwebane's removal tougher
No one thought the removal of the Public Protector, Advocate Busisiwe Mkhwebane, was going to be easy despite all the objective evidence that she is unfit for her position.
There is a string of judgments that shows precisely that.
Yet - and probably unsurprisingly - reports suggest that ANC secretary-general Ace Magashule, himself an accused in a criminal matter, has urged ANC Members of Parliament not to vote in favour of Mkhwebane’s removal.
Birds of a feather and all that. The Public Protector’s office is a constitutionally mandated institution designed to ensure proper public administration. Yet, we have seen Mkhwebane very assiduously insert herself into the ANC’s internal factionalism, weaponising her office in service of the "radical economic transformation" (RET) wing of the party. The same RET forces are agitating for former President Jacob Zuma not to appear before the Zondo Commission. It’s easy to connect the dots, especially as Magashule, ANC deputy secretary-general Jessie Duarte and others within the ANC launch attacks on the judiciary in defence of Zuma.
The relevant sub-plot of course is the attempt to prevent President Ramaphosa from gaining a second term at the ANC’s elective conference in December 2022. All sorts of unsavoury characters and power-peddlers can be expected to come out of the woodwork between now and then. It is also clear that we can expect a serious "fight back" from the "radical economic transformers" (looters?) as the Zondo Commission wends its way to a close.
And so the removal of Mkhwebane has become an intensely political process. It is unclear how the Parliamentary process will unfold. It is worth reminding ourselves how we reached this point, however.
- 8 legal challenges that overturned Mkhwebane’s reports and findings
- Mkhwebane loses appeal on costs order in Absa-Bankorp matter
- Sarb-Absa report: 5 findings the ConCourt made against Mkhwebane
- Another legal blow for Mkhwebane as court sides with Bheki Cele
- Cyril Ramaphosa not obliged to disclose CR17 funding, court rules
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, however, objected to the first part of the parliamentary process to remove her from office and brought an application to interdict against the those proceedings. Her legal counsel, Dali Mpofu, levelled criticism against the Speaker of Parliament, Thandi Modise, as well as the Democratic Alliance (DA) for starting the removal proceedings.
To go back to the beginning (sort of) of Mkhwebane’s woes, there is a raft of findings that detail her 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 South African Reserve Bank.
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 [SARB] 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.
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 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.
The High Court judgment in the so-called #CR17 campaign matter was excoriating. 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 then leader, 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 Mkhwebane 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 to remove 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.
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 - 267 votes backing her removal.
Along with the "RET" faction, the EFF has also come out in support of Mkhwebane, further complicating matters and creating unwelcome noise where calm heads should prevail. Our constitutional order depends on the rule of law prevailing and so it is imperative that integrity is restored to the Public Protector’s office.
Whether Parliament itself is able to rise above party political factionalism remains to be seen. On 5 March, ANC MP Mervyn Dirks tweeted the following: "As an ANC MP I will never support a DA motion to remove the Public Protector. In fact as a matter of principle I will fight any attempt to remove the Public Protector by whoever."
Dirks is the chief whip on the Standing Committee on Public Accounts, yet he clearly does not grasp that the rule of law should not be subject to partisan, factional whims. Or, perhaps he does not care much for constitutional democracy?
As an ANC MP I will never support a DA motion to remove the Public Protector. In fact as a matter of principle I will fight any attempt to remove the Public Protector by whoever.Mervyn Dirks (@DirksMervyn) March 5, 2021
Aside from the inappropriateness of the Tweet, it also highlights the intellectual paucity within the ruling party, that someone of such low calibre is the chief whip within SCOPA. But then the ANC in Parliament simply reflects the party’s overall decline- intellectually and ethically.
And as if we needed it, that tweet is sufficient evidence to suggest that the factional battlelines on Mkhwebane’s removal are now firmly drawn. Add to this Transport Minister Fikile Mbalula’s comment that Mkhwebane is a "hired gun" and we understand just how fraught the removal process has already become.
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