Public Protector Busisiwe Mkhwebane. (Madelene Cronje)
When the National Assembly votes on Tuesday on whether to proceed towards the eventual removal of the public protector, it will serve as a bellwether for other proxy battles playing out in the ANC.
A simple majority of 50 plus one is needed for the report tabled by a panel comprising former Constitutional Court judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal to be passed and parliament to start a Section 194 inquiry that could see Busisiwe Mkhwebane impeached.
If all 231 ANC members in the house heed party instructions, it will pass, despite the opposition of the Economic Freedom Front, which has not wavered in backing Mkhwebane.
The question is if any, and how many, ANC MPs will break ranks and vote to protect the partisan Mkhwebane whose repeated mistakes, disparaged by the courts and the three-person panel, served to shield those in the so-called RET faction and further their agenda against President Cyril Ramaphosa.
A letter from ANC MP Mervyn Dirks to the chief whip of the ruling party, Pemmy Majodina plainly says the caucus is split on the matter.
In his letter, Dirks said two views were expressed in the caucus, adding that he found it “unfair that you released a statement based on one view that was expressed in the caucus”.
“Secondly, there were no extensive discussions in the caucus due to time constraints and many comrades who raised their hands did not get an opportunity, therefore, it is not true that the matter was extensively discussed, in fact towards the end chaos erupted over the matter and the caucus chair brought the matter abruptly to an end,” Dirks wrote.
He added that Majodina in a public statement failed to mention that the caucus resolved that she must seek a mandate from the ANC’s top six, through the office of ANC secretary general Ace Magashule.
In her statement, Majodina said the caucus resolved to support the process and acknowledged that it was not at a point to deal with the merits or demerits of the case. She added that the caucus affirmed the rules of the National Assembly and how they regulate what the speaker can and cannot do in cases of heads of Chapter 9 institutions such as the office of the public protector.
A leaked recording of the meeting confirms that Majodina said she would be meeting with the ANC top six on Monday to deal with the mandate of the parliamentary caucus on the matter.
It was Magashule who sounded the call to a caucus revolt a few days after parliament published the findings of the panel a fortnight ago.
His argument was as facile as this: the preliminary investigation stemmed from a complaint first filed by Democratic Alliance (DA) chief whip Natasha Mazzone and the argument put forward by was that the ruling party cannot support “a DA motion”.
Magashule’s stance takes the ANC back to the recent past when a few MPs defied a three-line whip to support an opposition motion of no confidence in then president Jacob Zuma in 2017.
The consequences then were dire, as former MP Makhosi Khoza recently recalled to the Zondo commission how she was fired as portfolio committee chair on instructions from Luthuli House. The testimony of former colleague Zukiswa Rantho revealed how deeply, around the same time, the ANC caucus was split on the committee she headed probing state capture at Eskom.
The rules for Tuesday’s vote
The present-day tension around the Mkhwebane matter was evident at a meeting of parliament’s programming committee earlier this month, where the rules for Tuesday’s vote were decided, and thereby whether any votes in breach of party lines would be secret or a matter of public record.
The party whips sought confirmation that the standard voting rules for hybrid sittings, in which members vote through the whips, would apply. It caused an apparent misunderstanding with speaker Thandi Modise, who charged that they were trying to usurp her powers by dictating a decision that rests with the presiding officers.
Outburst aside, these are the rules that will apply. Chief whips will declare the vote for their parties, stating how many members are present in the benches and how many online and give the final number of votes. If anybody from a party wishes to vote differently, they will unmute their microphone and declare this.
At the end of the process, there will then be a full list of MPs and how they voted on the panel’s unequivocal report. National Assembly votes are not secret, but an MP pointed out that breaching the party line has arguably been made harder in the time of Covid, because MPs now have to declare their vote to the chief whip upfront, rather than vote as they want from their seats and deal with the fallout for disobedience later.
If the National Assembly adopts the findings, a multiparty committee will be established and will conduct its own inquiry into the terrain traversed by the panel. Mkhwebane will be called and heard by the members.
The panel’s findings are damning and point to prima facie evidence of misconduct and incompetence, evidenced by a litany of unforced errors in reports that were taken on review and set aside by the courts.
“The public protector contends that appeal (she probably means review) is the remedy if she makes a mistake,” it noted.
“But this misses the point. In the proceedings before us, the question is not whether the public protector is wrong but whether she committed misconduct or is incompetent.”
The remedy for incompetence and misconduct is removal, the panel said.
A long road
But a Section 194 inquiry is a long road with opportunity along the way for delay and obstruction. The presiding officers will decide the composition of the committee but the majority of the MPs on the committee will be drawn from the ANC. Meeting times will have to be found that do not clash with the members’ work in portfolio committees and the process is likely to stretch over many months, interrupted by the legislature’s recesses.
Once the committee has concluded its work, it will table a report to the National Assembly, where a two-thirds majority would be needed to remove Mkhwebane.
It’s a far steeper hurdle than Tuesday’s simple majority and will depend even more greatly on the politics of the day.
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