Picture: Armand Hough/African News Agency (ANA)
By Bheki Mngomezulu
As the investigation against South Africa’s Public Protector advocate Busisiwe Mkhwebane continues in accordance with Section 194 of the Constitution, more issues have come to light and have raised a number of questions. Divergent opinions have suddenly surfaced as people reflect on what has transpired since the investigation ensued.
The first question which begs for attention is the following: why was it necessary to invoke Section 194 of the Constitution and carry out a parliamentary investigation against a Public Protector whose term of office ends in 2023 anyway?
This question is given more impetus when considering the fact that even if the committee recommends that the Public Protector should be removed from office, a two-thirds majority will still be needed in parliament for that recommendation to be carried out as per the constitutional imperative.
As things stand, getting to that threshold is not possible to achieve. This is due to a number of reasons.
Firstly, the ANC, which is the governing party, no longer has a two-thirds majority in parliament as was the case before. Secondly, all opposition political parties combined do not meet this threshold to enable them to remove the Public Protector. Thirdly, other political parties (and individuals within various parties) are averse to the idea that Mkhwebane should be removed from office before her constitutional term comes to an end. Therefore, while the decision to conduct the ongoing investigation against Mkhwebane is legally sound, it is politically irrational, impractical and unwarranted. In fact, it amounts to a waste of state financial resources.
At the time when the country is not economically viable, anything and everything should be done to save whatever little money that the country has. The funds could have been used to address some of the many challenges that the country is currently wrestling with – such as inequality, poverty and unemployment – instead of using the money to investigate a Public Protector who is already heading towards the exit door.
The second question is whether the president acted in a rational and legal manner when he suspended Mkhwebane. In addressing this question, it is of cardinal importance to state that Section 84 of the Constitution gives the sitting president several powers. Specifically, regarding the issue under investigation, Section 194 of the Constitution empowers the sitting president inter alia to suspend the Public Protector and the Auditor-General following certain prescripts.
According to Section 194 (3) (a) of the Constitution, the president “may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person.”
Two issues are worth noting in this regard. The first issue is that the Constitution deliberately uses the word “may” and not “must” in accordance with the president’s privilege to execute his powers. This means that the president has to use his discretion in making a determination. He may or may not suspend the incumbent without breaking the law. In this case, President Ramaphosa decided to suspend Mkhwebane.
Interestingly, the suspension letter was issued soon after Mkhwebane had received a complaint about the Phala Phala matter regarding the theft of a large sum of money in foreign currency and had confirmed that she was going to investigate it. The question becomes: was this a coincidence or a calculated move by the president? If the latter is the case, did the president not use his constitutional right and powers to advance his personal agendas?
As advocate Dali Mpofu ventilates these issues at the ongoing investigation, one is forced to look into this matter closely with the view to establish underlying reasons for any action taken by the president and other actors and to check these against the Constitution.
The second issue is whether the suspension letter was issued “after the start of the proceedings” as the Constitution prescribes or was issued before that process began. No reference is made to the suspension being actioned once the Speaker of the National Assembly has informed the president that a committee will be constituted to investigate the Public Protector. Therefore, advocate Dali Mpofu’s assertion on this point is valid.
The third question is whether Mkhwebane is being judged objectively or not. My view is that she is not being treated fairly. Those who are vying for her blood tend to focus solely on her reports and recommendations which were taken under review by the aggrieved parties and were subsequently set aside.
Intriguingly, those who do this fail to reflect on what happens in our justice system. Someone who loses a case at a lower court has the right to appeal the judgement. There are many instances where defendants win the case on appeal. Does this mean that the judges who reached a different conclusion on the matter should resign once their decision has been set aside?
The answer is an emphatic no! Therefore, it is not fair to expect Mkhwebane resigned on the grounds that some of her reports and recommendations have been taken under review and her decisions were subsequently reversed.
The fourth question is whether Mkhwebane became Public Protector by mistake. The reality is that she did not appoint herself. She was recommended by an interviewing panel and was subsequently appointed by then President Zuma.
The decision to appoint Mkhwebane was based on a number of issues. These included but were not limited to: her legal knowledge, her leadership skills after having served as South Africa’s Ambassador to China, and her posting at the State Security Agency (SSA). These positions negate the view that she did not qualify to be appointed as Public Protector.
The interviews during the on-going investigation have portrayed Mkhwebane as a round character. Some witnesses painted a dark picture about her. For example, one witness stated that Mkhwebane would instruct them to remove certain information from the reports so that they did not implicate politicians.
If that is the case, one would have to establish the facts before making any determination or arriving at any conclusion. The working relationship between Mkhwebane and the employees who made such claims would have to be investigated. This would assist in establishing whether the claims are genuine or are triggered by vendetta and sour relations.
Similarly, some witnesses have argued that things were done in accordance with the law and that Mkhwebane treated other employees well. Here, too, before accepting such evidence at face value, one would have to subject such suppositions to serious scrutiny.
The senior manager for executive support, Futama Tebele told Members of Parliament that although he would not confirm that Mkhwebane would change reports, there was certainty that she had the final word. Tebele was clear that the accusations levelled against Mkhwebane that she mistreated her staff was unfounded.
Tebele was indeed correct. Mkhwebane’s situation is different from what happens in any organisation. Even in the private sector, the CEO oversees everything that happens in an institution. This is so because in the event that something goes wrong, the CEO is the first one to account.
The not-so-good relations between the Public Protector and other employees raises serious concerns about the integrity and effectiveness of the office of the Public Protector. For example, there is a possibility that some investigators may have done a shady job with the aim of tarnishing Mkhwebane’s image. Similarly, she may have set them up for failure due to sour relations. Whatever happened, the image of the Public Protector’s Office was adversely affected.
SSA featured in the investigation. Mahlangu was said not to have obtained full clearance when he was appointed into the PP’s Office. This was despite the fact that disciplinary proceedings related to his position of Deputy Director General at the Department of Rural Development and Land Reform had not been concluded.
The issue of Mkhwebane’s legal submissions is very intriguing. Like any citizen of this country, Mkhwebane has the right to exhaust all legal processes in order to clear her name.
Accusing her of “delaying tactics” sounds harsh. The same accusation has been levelled against former President Zuma whenever he used legal avenues to defend himself.
The complexity of the situation in Mkhwebane’s legal submissions has been compounded by advocate Kholeka Gcaleka, the Deputy Public Protector. Her decision that the Public Protector’s Office will not foot the bill for Mkhwebane’s legal costs has brought in another dynamic into the debate.
The question arises: What is the “normal” process that is followed in the case of Ministers who are litigated while in office? Are they personally liable for their legal costs or are these costs carried by the offices they hold? Flowing from this trajectory, did Mkhwebane make her submissions in her personal capacity or in her capacity as the sitting Public Protector?
An answer to these questions would assist in arriving at informed conclusions.
Mngomezulu is professor of political science and deputy dean of research at the University of the Western Cape.