As President Cyril Ramaphosa huddled last weekend with his advisers and lawyers, the question that pulsed through his cerebrum must have been: Will no one rid me of this troublesome public protector?
Will the president’s call be answered? It is important to recognise that the “fightback” by former president Jacob Zuma and his acolytes and cronies began long before Ramaphosa’s victory at Nasrec in December 2017. The former public protector, Thuli Madonsela, had been a thorn in Zuma’s side and, when her tenure came to an end in October 2016, she needed to be replaced by someone more compliant.
Despite the spotlight on the parliamentary appointment process, Busisiwe Mkhwebane slipped in as Zuma performed a deft sleight of hand, mesmerising civil society by pretending to back Judge Siraj Desai for the public protector post. Desai, fairly or not, was characterised as being an ANC hack,
Now Mkhwebane is a thorn in Ramaphosa’s side.
First, she tried to meddle with his Cabinet by rehashing the stale story of the so-called “rogue” investigative unit established in the South African Revenue Service when Pravin Gordhan was its commissioner. Rightly, Ramaphosa declined to allow Mkhwebane to interfere with his choice of Cabinet and reappointed Gordhan to the crucial public enterprises portfolio so that he can continue his mammoth clean-up operation of state-owned enterprises such as Eskom.
Gordhan has brought urgent high court proceedings against Mkhwebane. In his coruscating founding application, he unpicks her confused reasoning and then helpfully joins the dots, as he is wont to do, between the flip-flopping Economic Freedom Fighters and their support for Mkhwebane — especially on the “rogue unit” issue because of skeletons in their own tax cupboard.
It becomes clearer how Mkhwebane has become the symbol of the unholy alliance that is forming between the EFF and the Zuma rump, and a symptom of the underlying, unresolved existential contradictions of contemporary South Africa.
Very soon the high court will rule on the Gordhan application. Once again, Mkhwebane will probably be exposed and the “charge sheet” against her will lengthen.
The biggest blot on her copybook has now been provided by the Constitutional Court. On Sunday, the day before the court ruling, Ramaphosa made a statement to the nation. It was the right thing to do because the stakes were so high and he did it well, nimbly but firmly treading the delicate line between attacking the office and its current office-bearer.
Mkhwebane made serious allegations against Ramaphosa concerning the donation made to his campaign by the corruption-tainted company, Bosasa, and then later misleading Parliament about whether and what he knew about the donation.
“It is therefore essential — as it should be in all investigations — that such findings are based on fact, that they have a sound legal basis, that they are rational and that they have been arrived at through a fair, impartial and lawful process,” Ramaphosa said in response.
He framed it well: “I am challenging her in court in order to protect the office of the public protector and the Constitution.”
Monday’s extraordinary judgment by the Constitutional Court found that in the Reserve Bank/Absa case “[t]he public protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.”
The Constitutional Court confirmed the high court’s decision that Mkhwebane must pay 15% of the legal costs of the other litigants. “Personal costs orders are not granted against public officials who conduct themselves appropriately. They are granted when public officials fall egregiously short of what is required of them.”
This is it. Her conduct is egregious. She is unfit for public office, let alone the vital role of public protector.
This is the background, the genealogy of the ugly, distracting war that is being waged by Mkhwebane. It is important to bear in mind when assessing the latest episode because it helps show what the Council for the Advancement of the South African Constitution (Casac) claimed on July 14 is the “pattern of conduct that is overtly partisan and that contrary to her oath of office and her public protestations, she is not in fact exercising her powers without fear or favour, but in service of certain factional and other vested interests”.
Casac pointed to the various cases in which court proceedings have exposed Mkhwebane’s incompetence or bad faith, including the Estina dairy farm initiative in Vrede, Free State. The court said her report “points either to ineptitude or gross negligence in the execution of her duties”. The case concerns the interests of Ramaphosa’s opponent inside the ANC’s leadership, secretary general Ace Magashule, the former Free State premier, and serious allegations of corruption against him.
The high court in the Estina dairy case was also asked to make a costs order against Mkhwebane on a personal basis, but opted to wait for guidance from the Constitutional Court in the Reserve Bank matter.
Whatever or whoever is driving Mkhwebane, it is proving to be a costly matter. She is being made to pay. She is being held to account.
But, she needs to go. That she has not resigned reveals that she is there to do a job for others in service of malign vested interests fighting against Ramaphosa’s reform agenda.
In the corridors of power, the most often stated rumour is that Mkhwebane is being “handled by The Farm” — a faction in the base of the intelligence services. Mkhwebane once worked there, but that does not mean that she is a spook. However, there has to be an explanation for what lies behind her conduct.
So, what will or should happen next? What should happen is that Parliament will move to instigate a process to establish whether there are grounds for removing Mkhwebane on one or other of three grounds permitted by section 194 of the Constitution, namely “misconduct, incapacity or incompetence”.
The judgment of the Constitutional Court this week provides the basis for a finding on at least two of those grounds — misconduct and incompetence. Section 194 requires, in addition, that a committee of Parliament makes such a finding and then that a supporting resolution is passed by the National Assembly with at least a two-thirds (special) majority.
Appropriately, it is not easy to remove a public protector from office. On paper, thanks to her crudeness, Mkhwebane has made it easy for Parliament. Yet, it is unlikely to prove so straightforward. First of all, as was ventilated in the EFF case concerning the impeachment process for removing a president, there may be a lacuna in terms of the rules that should govern such a process.
It would appear to be a mixture of fact and politics. A parliamentary committee must make a finding of misconduct, incapacity or incompetence. The courts have laid a solid basis for such a finding but it is unlikely this will be sufficient politically, and it is unclear if it would be legally sufficient for a parliamentary committee to simply take the findings of the court. It would probably need to conduct its own inquiry.
Second, politically, Ramaphosa is going to have to convince his own caucus to take this line. It will test the political loyalty of his MPs. Which takes us back to that deeply flawed candidates’ list that caused such consternation when it was published in the run-up to the May 8 elections.
The scoundrels on that list will fight hard to stop a move against Mkhwebane. They have common cause with her; there are common interests in halting the reforms that may lead to their own investigation, prosecution and imprisonment.
This is why it matters. This is why it will be so tough. This is why Ramaphosa has to win this battle. The term of office for the public protector is seven years. Mkhwebane has four years to go.
Timing is important, tactically, politically and maybe even legally. Ramaphosa has to decide whether to hold the parliamentary process off until his own challenge to Mkhwebane’s findings against him on the Bosasa donation. It may be smart or even necessary to prove the irrationality of her decision-making against him first.
Ramaphosa can’t afford four more years of her meddling and of the destabilising distraction it causes. On Sunday Ramaphosa made it clear that he will not be distracted. Now he has big victories to win — in court and in Parliament.
Richard Calland is an associate professor in public law at the University of Cape Town and a partner in the political risk consultancy, The Paternoster Group