If Public Protector Busisiwe Mkhwebane ought to go, who will make it happen?
Despite a damning Constitutional Court judgment specifying flaws in her conduct, that could warrant being struck off the roll of advocates, Public Protector Busisiwe Mkhwebane appears to be continuing as before, targeting the same people, engaged in fighting corruption. The question is, who will take the legal steps needed to remove her.
This article first appeared on Creamer Media’s website: polity.org.za
Much public commentary since Monday 22 July has concerned the Constitutional Court judgment on the Public Protector (PP), Busisiwe Mkhwebane – nothing short of calling her a liar, incompetent, acting in bad faith and with bias. But she has continued – more or less – as before, in fighting efforts by Minister of Public Enterprises, Pravin Gordhan, former South African Revenue Services (SARS), Deputy Commissioner, Ivan Pillay and more recently, President Cyril Ramaphosa, to contest their interdicts.
These are aimed at preventing or delaying remedial action against findings Mkhwebane made, until completion of review processes they had instituted. Undeterred by the fallout from the Concourt, she yesterday announced an investigation into the appointment of the new head of SARS, Edward Kieswetter and other issues related to SARS and Gordhan.
Given that there have been these damning findings on her honesty, that she lied under oath, acted without adequate appreciation of the scope of her job and with questionable motives, Adv Paul Hoffman SC in his capacity as director of Accountability Now, has called for her to be struck off the roll of advocates by the Legal Practice Council, a statutory body recently established to regulate the legal profession as a whole.
For an advocate or an attorney, there is nothing more disgraceful that can happen. Once it does, there is hardly any way of salvaging one’s career.
Even though one does not need to be an advocate to be appointed PP, if struck off the roll of advocates, one does require qualifications that are akin to that or experience in some ways similar. (Public Protector Act, 23 of 1994, as amended). It is hard to see how the PP could claim to have qualifications like that or additional to that which bear on being PP.
One of the most striking parts of the findings relates to her secret consultations with former president Jacob Zuma and former Intelligence Minister David Mahlobo. In notes of her meeting with Mahlobo concerning the South African Reserve Bank (SARB) she had handwritten the question “how is it vulnerable?”
It is hard to put an innocent meaning to this, given the context of destruction of the capacity of a range of state institutions including the South African Revenue Service, (SARS), and continuing efforts at “state capture”. It appears that the PP may have been seeking guidance on how to weaken the SARB or what these weaknesses were, in order to impact on them. It was outside her brief or irregular unless, perhaps, she wanted to make some or other finding that would remedy weaknesses.
In this context, if the PP remains in office, as Pierre de Vos said, in the meantime, her reports will carry no value in the light of her being found once more to be discharging her duties in a manner that makes her unfit for office. That being the case Parliament, as is required by the Constitution, ought to move swiftly to remove her.
Whether or not that happens, we know, is not a question of good faith but will be determined by a range of factors that relate to political alliances and “factions”. What this means is that some who constitute part of the required majority may want to replace Cyril Ramaphosa with someone more pliable for the looters. For that reason, the PP may survive. The EFF brought the case, together with the DA and others, leading to a Concourt finding that Jacob Zuma had acted contrary to his oath of office. Now the EFF will do its best to stifle any attempt to remove a PP that has failed to discharge the trust that is incumbent in her office.
Who takes responsibility for our future?
The Concourt has stepped in and made a finding that more or less addresses the question of the PP’s fitness for office. It has set out grounds that would generally apply in order to strike a lawyer off the roll, and in this case, almost certainly rendering her unfit to hold the office she occupies.
The court is very aware of how far-reaching its findings are and explains why they were inescapable. Clarifying their personal costs order against her, the majority judgment stated the court’s duty: “Personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector acts in good faith and in accordance with the law and the Constitution. The imposition of a personal costs order on a public official, like the Public Protector, whose bad faith or grossly negligent conduct falls short of what is required, vindicates the Constitution.”
But the PP has become part of a broader political power play which affects the future of the Ramaphosa presidency and the clean-up that he initiated that could well influence the fortunes of sections of the ANC, (including some not thus far identified as looters, but who may be in the Deputy Chief Justice Raymond Zondo commission on state capture) and also the EFF. Those who are supporting the PP do not address the flawed nature of her record, even at a purely investigative level. Nor are they concerned with her evident lack of necessary understanding of the law applicable to her work.
The PP seems indifferent or unaware that many see her targeting some and leaving others relatively unscathed. Those targeted are not merely allies of Ramaphosa, but individuals who have gone after corruption and tax evasion. Those who are not within the net of her investigations were close to the Guptas or keeping similar company, and themselves potentially fall within the net of any genuine clean up. These are now grouped around Zuma and ANC Secretary-General, Ace Magashule.
That is why Gordhan and others have accused her of being on the side of state capture. It is possible that some of what she has done has not been with that in mind, but then why secret meetings with Zuma and Mahlobo? (On her alignment with State Capture see this link and the video interview.)
If PP ought to be removed, how should it happen?
If there is a strong case to be made for removing Mkhwebane, how can it be done? Will it be considered on its merits and in good faith by the National Assembly? There is little doubt that the obstacles to her removal even if there is a sound legal basis, will not rest on legal argument or constitutional niceties. This question, like much else in public life, is ultimately dependent on the balance of forces within the ANC whose support for such action is the predominant element in ensuring it succeeds. That means it is the ANC that primarily determines whether there is the required majority and correct procedures are prepared if new ones are needed. In the previous Parliament, all attempts to address the flaws in the PP’s performance were shot down at National Assembly Portfolio Committee level.
As is well known the ambiguous basis on which Ramaphosa became ANC president has continued to inhibit his agency to this day. If anything, his level of vulnerability has worsened. His power has weakened insofar as his immediate opponents, (mainly a convergence between Zumaites and the EFF) have waged an onslaught on many fronts. They have not always targeted Ramaphosa directly but placed a lot of focus on Gordhan, the main actor in the clean-up thus far, given that SARS, the National Prosecuting Authority and the Hawks have not yet recovered adequately from the Zuma version of state capture.
There is nothing political about these differences, even if reference is made to “white monopoly capital”, “radical economic transformation” and alleged Indian racism towards Africans, embodied by Gordhan. The reasons for antagonism towards Gordhan and his being Indian rely on a narrative similar to the alleged “cabal” of the 1980s. Then, the notion of a mainly Indian cabal was generally resurrected whenever someone was accused of corruption or one or other abuse.
The anti-Indian racism is evident in Julius Malema’s reference to Pravin Gordhan by his second name “Jamnadas”. This is not an original form of racism, to exotify and Other the person who is being targeted. A similar practice was applied to Barack Obama, whose father was Kenyan and has a Muslim second name, Hussein: The reference to Gordhan by his second name is intended, by use of an unfamiliar name to signify that he is a person who does not belong here.
Every day the EFF is dispelling any of the mythology that surrounded their proclaiming that they represent the new, and unlike the ANC have broken with the apartheid past. They have found their own ways of perpetuating racism, as in this case.
Our voice and our power must help do the job.
If it is correct to doubt whether the National Assembly will do what is required, and remove the PP, what is to be done? It is easy to make reference to popular power, as has been done before. But the resources for popular action to force the hands of legislators, are currently limited and weak. It is important to interpret these signs as evidence of the need for careful consideration of how to address what is a broader democratic crisis. There is a need, without abandoning the vote, or representative democracy, to patiently build power beyond state institutions, drawing on the strength of people located in several locations, and organisations who may potentially be drawn into new organised formations.
There will be no clean up if our democracy remains a pawn in intra-ANC/EFF contestation. We need to build power that is not depoliticised, as much of our politics is. There needs to be manifestations of power that are profoundly political and committed to reviving democratic life in a range of areas of our lives. DM
Raymond Suttner is a visiting professor in the Faculty of Humanities, University of Johannesburg, a senior research associate at the Centre for Change and emeritus professor at Unisa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history, and social questions, especially issues relating to identities, gender and sexualities. He blogs at raymondsuttner.com and his Twitter handle is @raymondsuttner
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