ANALYSIS

As storm clouds gather over Busisiwe Mkhwebane, there’s nowhere to run, nowhere to hide

By Stephen Grootes 30 January 2020
Caption
Public Protector Busisiwe Mkhwebane. (Photo: Sunday Times / Gallo Images / Getty Images / Moeletsi Mabe)

It is now increasingly apparent that a slow-motion legal and political train crash is about to be centred around our Public Protector. Various groups and organisations are calling for her to go, while Speaker Thandi Modise has agreed that MPs can start the process that could lead to her removal. Mkhwebane is claiming to be the victim of shadowy forces, but it seems unlikely that claims of victimhood will be enough to save her.

Those calling for Busisiwe Mkhwebane’s head have been gathering momentum for some time. The first alliance organisation to call for her to go was the SACP last year. It said that she was unfit for her position and that she had been abusing her powers to weaken President Cyril Ramaphosa. (This was after she said he had broken parliamentary codes relating to the money he received for his ANC leadership campaign.)

But pressure on Mkhwebane had been building long before that. Her first major finding upon coming into office (after a short stint in the State Security Agency), was about the BankCorp bailout by the apartheid government. Somehow her findings then included an instruction to Parliament to change the mandate of the Reserve Bank. During a court process, it emerged that she had met with agents from the SSA as part of her investigation and that that meeting produced a hand-written note asking how the Reserve Bank could be weakened.

Then last year, it emerged that one of her personal bank accounts had been red-flagged by the international bank HSBC after it received a suspicious payment of $5,000. She has denied it was a payment by the Gupta family.

On Sunday, 26 January 2020, the Sunday Independent (a newspaper whose reporting is broadly supportive of Mkhwebane), published a report that Mkhwebane was being audited by SARS. It is not clear if that was the result of this payment or some other development.

But the real development which has given this momentum is a statement issued by the Hawks on the morning of Wednesday, 29 January. It was published in response to a comment by Mkhwebane the previous day in which she said that the Hawks had been giving too much attention to a charge of perjury laid against her (in connection with the ABSA/Reserve Bank issue), and not enough attention to the findings in her report.

Considering the usually deliberately neutral nature of statements by a police service, the language of the statement was itself startling. The Hawks said that now that they were aware that she was not going to give them a warning statement (a statement given by a suspect to investigators which can determine whether the case proceeds), they were going to deliver the docket straight to the NPA to decide whether or not to press ahead. 

This means that the NPA, and presumably its head, Shamila Batohi, will decide whether to charge Mkhwebane with the criminal offence of perjury. The stakes for Mkhwebane here could be high – a sitting public protector facing criminal charges is a big thing with potentially dangerous consequences for the country.

But the worst outcome for Mkhwebane may be that in that case, she could end up in the witness box, having to give testimony under oath. That way she could face questions about her investigation that led to her findings in the ABSA/Reserve Bank case. And that, in turn, would mean she might have to finally explain, in a satisfactory way, why she met with the SSA as part of her findings. And, of course, face the real possibility of committing further perjury.

For those who believe that she is, in fact, acting on the orders, or to the benefit of former President Jacob Zuma, this could be a welcome moment. For Ramaphosa, this could mean that one of the main thorns in his side will be dramatically weakened/softened.

In the meantime, Mkhwebane is facing an offensive from another front.

The Public Servants Association, which represents workers in her office, has also said that Parliament must remove her. It told SAfm on 28 January 2020 that it had evidence, gathered by its members, that she was not working, or behaving in a neutral manner. 

This means that she is now unable to trust the people she works with. Already, she has fired her chief operating officer. Now, she may find that she has a very small team of people to rely on, if any. At the same time, evidence given by people who worked for her is likely to find resonance with the people who have to make the decision to keep, or remove her. Many people in this country have reason to dislike a boss who treats workers badly. This could end up changing the politics of how this is perceived.

In the end, this entire issue may well turn out to be less about the law than it is about politics.

Normally, a final decision about whether or not Parliament should remove a public protector would come to rest where many other decisions rest, with the ANC’s National Executive Committee (to remove a public protector requires a two-thirds majority in the National Assembly, as the DA has proposed removing her, their support can be taken for granted, while the EFF is likely to support her, making the ANC’s caucus the vital cog). And it would seem, for the moment, that the NEC cannot make a unanimous decision. Up until now, its public statements on the issue have been rather neutral. The NEC is likely to be both divided and also painfully aware of how it will look for the governing party to explicitly push for the removal of a Chapter 9 institution head.

However, for Ramaphosa, the bar may be slightly lower than an NEC decision. In the end, he may only need the weight of public opinion to fall on his side.

This is because the Constitution gives the president the power to suspend a public protector from the moment the proceedings into whether or not she is fit for office starts. Which means that legally, he can suspend her from the moment of the first sitting of the committee investigating her.

However, Mkhwebane is clearly planning a fightback. She has made it clear that she believes she is being targeted for her role in investigating Ramaphosa. She, and her supporters, may now say that the attitude of the Hawks is evidence of this. Mkhwebane is also likely to say that her predecessor, Thuli Madonsela, was strongly supported by civil society in her battles against Zuma, while she is not being supported in her battles with the current president.

This is where the opposition of her own workers, represented by the PSA, may well be crucial. If they are able to make the claim, in public, that she mistreats her workers and they have details about her alleged misconduct, that might well tip the balance.

In the end then, Ramaphosa may feel that all he has to do is wait for public opinion to fall his way and then act to suspend her. Of course, that is likely to lead to her challenging that decision in court. But it would still weaken her significantly. DM

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