/ 26 July 2019

ANC fiddles as Mkhwebane burns

In the firing line: The future is uncertain for public protector Busisiwe Mkhwebane after the Constitutional Court found that she did not fully understand her duties.
In the firing line: The future is uncertain for public protector Busisiwe Mkhwebane after the Constitutional Court found that she did not fully understand her duties. (Felix Dlangamandla/Netwerk24)



The ANC in Parliament says the motion to remove public protector Busisiwe Mkhwebane from office will not be discussed in caucus before the matter has been dealt with in Parliament’s justice portfolio committee.

This comes as the Democratic Alliance intensifies its calls that Mkhwebane is unfit for office and should be removed from her position by MPs.

In May, the official opposition called on National Assembly speaker Thandi Modise to hold an inquiry into whether Mkhwebane should continue as public protector.

At the time, the DA’s chief whip, John Steenhuisen, said she was not the right person for the job. “She has demonstrated an appallingly poor understanding of both the law, as well as of her own powers, and has proven that she is not able to act independently,” he seed.

Modise’s quick response in referring the matter to the justice committee left some believing Mkhwebane’s removal was imminent.

But fissures in the facade of unity in the majority party indicate that not all ANC MPs are on board in removing Mkhwebane.

The DA’s leader, Mmusi Maimane, told the Mail & Guardian that some MPs in the ANC want to take the matter forward themselves and remove Mkhwebane on the majority party’s own terms. “I know the ANC wants to put its own motion to remove the public protector. They tried to reach out to us and said: ‘Let us do it.’ Because they don’t want to be seen as taking instructions from the opposition. And to me that’s nonsense: we’re not going to do it.”

His claim has been lambasted by the ANC caucus, which denied anyone had approached the DA. It also denied suggestions that the caucus holds any position, as yet, over the possible removal of Mkhwebane. The caucus’s acting spokesperson, Andile Mdleleni, said: “The matter hasn’t been raised in caucus at all. There’s no decision. There has not even been a discussion.”

At the same time, Mdleleni said: “As far as the public protector’s report is concerned, we fully support the president’s decision to take the matter on review.”

The report found that President Cyril Ramaphosa misled Parliament by failing to declare his ANC presidential campaign’s finances.

In a press briefing on Sunday night, the president announced that he would be taking it on review.

One ANC MP close to deliberations on the matter warned of not jumping the gun when it comes to dealing with Mkhwebane. “There are two extremes here,” said the MP, who did not want to be identified.

“The DA has a verdict before there is an inquiry: that she must already go. There’s another extreme in the EFF [Economic Freedom Fighters], who say don’t touch her. We must avoid that until we have a proper inquiry where she’ll be allowed to tell her side.”

But the MP admitted that things don’t look good for Mkhwebane, particularly after this week’s Constitutional Court ruling, which upheld a previous high court judgment that set aside her report and remedial action into the Bankorp- Absa matter.

The court also found that she did not fully understand her constitutional duties, and slapped her with a personal cost order that has been reported as high as R900 000.

That judgment was so damning that ANC MPs will now almost be forced to act against her, even if not immediately. The MP said: “The pressure is on. From the basis of the court judgment, it is on. It’s almost narrow in what needs to be done.”

Meanwhile, Parliament’s justice portfolio committee chairperson, the ANC’s Gratitude Magwanishe, said there’s no rush to deal with the issue of the public protector.

It will come before committee members after MPs return from their winter break, and only once it has finalised other matters. “It will be [on our agenda] when we come back from recess. We will first go through the Nomgcobo Jiba and Lawrence Mrwebi matter. So we will then turn our attention [to Mkhwebane] around the third of September,” said Magwanishe.

The committee chairperson said that the committee will take its time as the motion to remove a sitting public protector is a serious matter and requires attention. “The [DA’s] letter proposes her removal from office. So it can’t be an easy matter. Because we are dealing with a chapter nine institution.”

Earlier this week Mkhwebane wrote to Modise saying she will fight any attempt to remove her; even approaching the courts.

Magwanishe said the National Assembly’s rules are clear regarding how Parliament hires and fires a public protector. “The issues of appointment and removals are issues covered in the Constitution of the country. So it envisages the appointment, and it envisages that at some point there may be issues and there might be a need for removal. So it is there,” she said.

If the effort to remove Mkhwebane goes ahead, it would be the second attempt in two years to have her removed from office. At the end of the last parliamentary term, ANC MPs rejected a DA request to hold an investigation into her ability to hold office. The ANC’s decision was supported by the EFF.