Public protector to investigate president

Public Protector Busisiwe Mkhwebane could soon rule on possible ethical violations by President Cyril Ramaphosa after ANC MP Mervyn Dirks asked her to investigate a recording of the president admitting knowledge that state funds were being used to fund leadership battles in the ruling party.

Dirk’s letter was submitted to Mkhwebane’s office on Wednesday, a day after parliament’s standing committee on public accounts (Scopa) agreed to hold its own investigation into acts of corruption, how money had been diverted from state departments and by whom.

Dirks had earlier written to Scopa asking them to also investigate the leaked recording of Ramaphosa making the admission in his address to a meeting of the ANC’s national executive committee (NEC).

Scopa agreed to do so, but will restrict itself to what information Ramaphosa had regarding the acts of corruption. The committee will not rule on whether he had committed ethical violations, or any crime, by failing to report unlawful activities he had become aware of.

But Mkhwebane can rule on ethical violations by the president, and can subpoena other participants in the meeting, including NEC member Tony Yengeni, one of the leaders of the ANC’s “radical economic transformation” (RET) faction who Ramaphosa addressed by name, to establish the content and the context of the discussion.

Mkhwebane’s spokesperson, Oupa Segalwe, confirmed that an MP had lodged a complaint about the president and that the public protector would investigate it within 30 days.

In the recording, Ramaphosa addresses NEC members about the funding of the CR17 campaign and tells them he had given the party’s integrity commission a breakdown of where the money came from and what was spent.

Ramaphosa then says he would rather have only his campaign investigated than have “other campaigns” ahead of the 2017 elective national conference probed, to avoid further embarrassment to the ANC.

“We also know as ANC cadres that in some cases state money has been used in some campaigns. We know that we will not talk about it, to the extent comrade Tony, where some comrades even said that, well, let’s investigate all campaigns and not just one,’’ Ramaphosa said.

“I even said to one of the officials that I think it’s enough to focus on one only, CR17, and I even said because I don’t want the ANC to be dragged, once again, in the mud, when those assessments, investigations, will reveal that a lot of public money was used.”

Ramaphosa said he was “prepared to fall on the sword” to protect the image of the ANC.

“The image of the ANC is what I’m most concerned about, each one of us knows that quite a bit of money that is used in campaigning, in bussing people around, in doing all manner of things, is taken from state resources and public resources. We cannot kid ourselves when we come to this,” he said.

In his submission to Scopa, Dirks, a long-standing supporter of former president Jacob Zuma, said it was “no small matter” for him as an ANC member to make a request for the president to appear before Scopa.

Dirks had asked that Scopa summon Ramaphosa, whose failure to report the corruption he was aware of to the Zondo commission of inquiry into state capture was a “wilful act of criminal omission’’ that amounted to “perjury”.

But Scopa decided it should rather invite Ramaphosa to make a written submission, after which it would schedule a series of hearings with him.

According to the legal opinion provided to Scopa, the audio recording, which is incomplete and did not have any context, “seemingly implies that public funds were used for party purposes leading up to Nasrec” with “mention made” that money had been sourced from the then State Security Agency.

Scopa’s oversight would pertain to whether public funds had been used for unlawful purposes in terms of section 1 of the Public Finance Management Act and whether any accounting officer was aware of the corruption and had failed to report. If they were, this would amount to financial misconduct, a criminal offence.

Scopa would also want to know whether the corruption was detected and, if not, whether there was misrepresentation by officials to allow it to go undetected.

Once Scopa had all this information, it would then be able to determine who had issued an instruction for the funds to be released and who should be called to account for this.

If the committee did call the president to provide information, it would be limited to “maintaining oversight in respect of expenditure”.

It was not the role of Scope to deal with any potential ethical breach on the part of the president because “Scopa’s mandate does not enter into those issues”. Scopa’s focus “must be limited to what information the president has. It is not the mandate of Scopa to consider [the president’s] conduct or failure to share information with anybody”.

When Scopa gets an explanation from the president about the recording, it can, if it believes it necessary, invite Ramaphosa to appear before it. If Ramaphosa refuses, Scopa will have to issue a summons, but it would have to put the step to the vote. With six ANC MPs on the committee, this is unlikely to pass.

In a statement issued after the meeting, Scopa chairperson Mkhuleko Hlengwa said it would seek the president’s written response in the form of an affidavit or a statement to “solicit facts from him on this issue” within 10 days. Scopa also reserved its right to “invite” Ramaphosa to appear before it.

A written submission would allow Scopa to determine how a process of hearings would be conducted.

Hlengwa said Scopa would require written responses from others implicated in the matter, including the State Security Agency. Scopa would also advise the joint standing committee on intelligence and would require written responses from the auditor general.

Scopa would interact with Mkhwebane to “maintain a healthy cooperation with all the state institutions”.

Dirks has been suspended by the ANC in parliament, recalled as a Scopa representative and stripped of his parliamentary duties over the letter, which he had been ordered to withdraw.

He had earlier unsuccessfully approached the high court seeking an interdict lifting his suspension and stopping the ANC from removing him from Scopa.

Asked for comment, Ramaphosa’s office said: “The presidency has noted the decision announced by Scopa, and is awaiting correspondence from Scopa on the matter. 

“The president understands the responsibility of members of the executive with respect to Scopa and will assist Scopa in the fulfilment of its mandate.”

The issue could haunt Ramaphosa throughout the year, right up to the ANC’s elective conference in December. When Scopa files a report, it must be adopted by the national assembly. This will make for a debate in the chamber where rivals in the ANC, or their allies in small opposition parties, can try to tarnish the president.The African Transformation Movement, which has links to the RET faction, fought all the way to the supreme court of appeal and won its bid to force the speaker of the national assembly to reconsider a refusal to allow a secret ballot on a motion of no confidence in Ramaphosa.

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