Paul Ngobeni (An edited version of this article appeared in Cape Times, Friday, July 15, 2022)
The ill-fated impeachment proceedings of the Public Protector Mkhwebane currently underway was bound to expose the racism, dishonesty and mind-numbing incompetence of the constitutional experts, lawyers, parliamentarians and ANC members who regard the defence of Ramaphosa rather than the constitution as their primary pre-occupation.
The cracks in the case were exposed by very first witness, Hassen Ebrahim, who claimed he was part of the Codesa negotiations and the Constitutional Assembly, which drafted the Constitution in the 1990s. The self-proclaimed expert assiduously avoided dealing with the pivotal questions underlying the charges against the Public Protector. The first is the allegation that Advocate Mkhwebane exceeded her mandate and usurped the powers of parliament when she recommended an amendment to the constitution. Those who were involved in the CODESA negotiations would know the legislative background to the powers of the Public Protector as follows: In the wake of the Information Scandal under apartheid, an Ombudsman was created after amending the Advocate General Act by the Ombudsman Act of 1983. The purpose of this office was to ensure and maintain efficient and proper public administration. Importantly, in terms of section 11 of the Ombudsman Act 110 of 1983, the Ombudsman was empowered to act as a remedy to deficiencies in the legislation. In the exercise of the Ombudsman’s supervisory powers he was expressly authorised to propose or initiate a change in the statutes.
Suffice to state that during the multi-party negotiations the political parties agreed that South Africa should have a Public Protector (Ombudsman). In 1995 the office of the Public Protector replaced the Ombudsman. The false allegations against Advocate Mkhwebane have nothing to do with her overstepping her constitutional powers – her sin was that she stepped on the toes of big capitalists and their puppets. For this she has been tarred and feathered for her innocuous suggestions about legislative changes, a routine act that her predecessors Ombudsman under Apartheid were expressly empowered to do. Advocate Mkhwebane did not misunderstand or exceed her powers she merely annoyed agents of white monopoly capital who could not stomach her gumption to challenge their stranglehold on our economy. Now they hope to exact their revenge through her impeachment!
Another fallacy that the expert Ebrahim assiduously failed to confront is the issue of whether the Constitution itself envisaged Public Protector mandate expansion through legislation. Before South Africa’s advent to democracy, the office was previously known as the Office of the Ombudsman which was established on 22 November 1991. Making recommendations for legislative changes was expressly stated as the mandate mandate of the ombudsman. The Public Protector is part of a global family of what is traditionally referred to as “Public Service Ombudsmen”. Under Chapter nine of the South African Constitution, the Public Protector is one of the institutions that strengthens our constitutional democracy. Indeed empirical evidence clearly shows that the Constitution anticipated Public Protector mandate expansion through legislation, and legislation passed since establishment of the office since 1994 has resulted in the Public Protector being a multiple mandate agency responsible for amongst other things, the following key mandate areas:
· Maladministration and appropriate resolution of dispute the Public Protector Act 23 of 1994(PPA). This transcends the classical public complaints investigation and includes investigating without a complaint and redressing public wrongs;
· Her exclusive mandate for the enforcement of Executive ethics under by the Executive Members' Ethics Act of 1998(EMEA) and the Executive Ethics Code (Exclusive) – the President’s Phalaphala corruption shenanigans were due to be investigated under this provision until he launched a preemptive strike to suspend the Public Protector;
· Anti-corruption as conferred by the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PCCAA);
· Whistle-blower protection under the Protected Disclosures Act 26 of 2000;
· Regulation of information under the Promotion of Access to Information Act 2 of 2000;(PAIA) and
· Review of decisions of the Home Builders Registration Council under the Housing Protection Measures Act 95 of 1998.
The so-called constitutional expert failed to ponder the implications of the vast expenditure of public resources in an ill-fated Public Protector removal process where the Constitution itself provides its own prophylactic remedies. For good reasons, the Public Protector is appointed for a non-renewable period of seven years. It is the height of idiocy to spend four years being bogged down in a removal process where the Public Protector’s term of office is due to end in less than two years. A real expert would have understood that the Public Protector’s constitutional mandate to investigate and report on improper conduct in state affairs, coupled with the imperative to be accessible to all people, inevitably requires a multi-pronged approach to handling complaints. It is absurd to suggest that our Public Protector now has less powers to make legislative changes than the powers enjoyed by her predecessor, the Apartheid ombudsman.
The evidence leaders were equally disingenuous and misleading when it came to the key evidentiary issues that the Section 194 Committee must consider – they argued that court judgments criticizing the Public Protector were binding on the Committee and the latter was not free to come to its own conclusions on the same issues. That argument has been rejected almost universally. In the US, District Court Judge Alcee Hastings of Florida was initially charged in a criminal case for bribery but was acquitted. (See U.S. v. Hastings (1982) 681 F2d 70). Thereafter, at the instance of his judicial colleagues, impeachment proceedings were commenced against him in the US Congress on 17 articles of bribery and perjury. The mere fact that he was acquitted did not prevent the impeachment proceedings from taking their course. On a recommendation of the Judicial Conference Judge Hastings was convicted, impeached and removed. In South Africa, judge Legodi succinctly explained the principle in the GCB vs Jiba case as follows:
[82] Very often when adverse remarks are made in legal proceedings, the person against whom the remarks are made is not given the opportunity to state his or her case to the impeding adverse remarks. It is for this reason that courts do not easily make adverse remarks…Courts are of course willing to reconsider adverse remarks afresh given the responses by the person against whom they were made.
Why would the evidence leaders mislead the Committee in such a blatant manner suggesting that the Public Protector is bound by even erroneous court findings and that the adverse remarks cannot be refuted with clear evidence? As I have previously written, the Mkhwebane case involves the false accusations that Mkhwebane relied on a wrong legal code or made up her own laws in order to find President Ramaphosa guilty of lying and breach of ethics. In the matter involving the CR 17 campaign funding, Bosasa matters and President Ramaphosa’s misrepresentation to parliament, the the Concourt ruled that:
The Public Protector … changed the wording of the Code to include “deliberate and inadvertent misleading” so as to match with the facts. Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code. It is unacceptable that the Public Protector did what no law had authorised her to do. …It was the wrong approach adopted by the Public Protector here which led her astray. Instead of evaluating the President’s conduct against paragraph 2.3(a) of the Code, she measured it against a standard she had created…Para.61. See,Public Protector and Others v President of the Republic of South Africa and Others (CCT 62/20) [2021] ZACC 19.
This was clearly false statement of facts by the court justices and was contrary to their previous ruling in the EFF vs Speaker case. All Cabinet members who have served in government since at least 2009 have been provided with a Ministerial Handbook which contains the 2007 Executive Ethics Code that includes“deliberate and inadvertent misleading.” The Code has been used by the Public Service Commission in the inductions of Ministers and MECs since 2009 and no one has ever claimed that this was Mkhwebane’s mischievous invention until she made an adverse ruling against President Ramaphosa. The phrase “members may not deliberately or inadvertently mislead the president, the premier or, as the case may be, the legislature” is contained in the handbook used by the executive in a daily basis. But the parliamentarians are now urged to accept the entirely fictitious statement of the Concourt that the Code was invented by Mkhwebane.
It is an injudicious falsehood to state that Mkhwebane invented the language explicitly stated in the Handbook. She did not make up her own version. But she is now supposed to be impeached on the basis of this gross distortion of her performance simply because she is a black woman who has offended Ceasar.
There is precedent for the victimization of black African women by the Ramaphosa-led ANC. Former NPA director Nomgcobo Jiba was exonerated by the Constitutional Court which vacated a disbarment judgments against her. Ramaphosa ignored all that declaration of innocence and inititated removal proceedings against Jiba on the basis of the same evidence rejected by the apex court. For black women the pattern of their tormentors is to devalue their performance or portray it in the worst light possible and then declare them incompetent and unworthy of any leadership position. This is reminiscent of what happened to the late Winnie Mandela. She was also tarred, feathered and excluded from ANC leadership in 1995 after being falsely accused of corruption. Her sin was expressing her Pan-Africanist views to the world at a time when imperialist forces were infiltrating the ANC with their deep pockets. She posed a threat to the neoliberal Growth, Employment, and Redistribution (GEAR) policies as she advocated African autonomy and radical transformation of our society.
Mkhwebane, like Winnie Mandela before her, has been fighting a system that intends to block her from doing her mandated job effectively. Despite stellar performance including achieving historic clean audit in 26 years and maintaining that in two successive years, Advocate Mkhwebane has been dragged across the proverbial burning coals by the racist DA, some top ANC officials, some members of Parliament, and Corporate Media, in an orchestrated smear campaign against her. Her unwavering stance against corruption, strength and commitment to justice have remained resolute in the face of this visible and vindictive campaign that seeks to paint her as incompetent, lacking in intelligence, and ignorant of the law. Public resources are recklessly spent by enemies hell-bent on making sure her outstanding reputation is shredded daily. But there is a silver lining in all these vindictive and satanic moves – the ANC is being exposed as a party unfit to govern and with leaders beholden to white monopoly capital.
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