Paul Ngobeni
Pretoria - The ill-fated impeachment proceedings of Public Protector Busisiwe Mkhwebane currently under way were bound to expose the racism, dishonesty and mind-numbing incompetence of the constitutional experts, lawyers, parliamentarians and ANC members who regard the defence of President Cyril Ramaphosa, rather than the Constitution, as their primary preoccupation.
The cracks in the case were exposed by the very first witness, Hassen Ebrahim, who claimed he was part of the Codesa negotiations and the Constitutional Assembly that 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 Busisiwe 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 or she was expressly authorised to propose or initiate a change in the statutes.
Suffice it 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 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.
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 the advent of democracy in South Africa, the office was previously known as the Office of the Ombudsman, which was established on November 22, 1991. Making recommendations for legislative changes was expressly stated as the mandate of the ombudsman.
Indeed, empirical evidence clearly shows that the Constitution anticipated public protector mandate expansion through legislation, and legislation passed since the establishment of the office since 1994 has resulted in the public protector being a multiple mandate agency responsible for, among other things, maladministration, the enforcement of executive ethics, anti-corruption and whistle-blower protection.
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 reason, 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 when 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 criticising 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 US 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 Francis 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.
“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 the public protector relied on a wrong legal code or made up her own laws in order to find Ramaphosa guilty of lying and a breach of ethics.
This was clearly a 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 the 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 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 on a daily basis.
But the parliamentarians are now urged to accept the entirely fictitious statement of the Constitutional Court 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 Caesar.
There is precedent for the victimisation of black African women by the Ramaphosa-led ANC. Former NPA director Nomgcobo Jiba was exonerated by the Constitutional Court, which vacated a disbarment judgment against her. Ramaphosa ignored that declaration of innocence and initiated 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 Neo-liberal Growth, Employment, and Redistribution 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 a stellar performance, including achieving a historic clean audit and maintaining that for 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 the corporate media in an orchestrated smear campaign against her.
Her unwavering stance against corruption, her 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 moves – the ANC is being exposed as a party unfit to govern, and with leaders beholden to white monopoly capital.
Pretoria News