Public
Protector Busisiwe Mkhwebane listens during a briefing at parliament in
Cape Town, South Africa 19 October 2016. REUTERS/Mike Hutchings
By Anna Maree
A hard-fought parliamentary vote on South Africa's public protector Busisiwe Mkhwebane – the
ombudsman who deals with complaints by regular people against institutions large and small – could cause further schisms in the governing African National Congress (ANC).Members of parliament (MPs) have voted for an inquiry into the fitness of public protector Busisiwe Mkhwebane to hold office. An independent report commissioned by the Speaker of Parliament report said there was prima facie evidence of incompetence and misconduct.
Unlike Mkhwebane’s predecessor, Thuli Madonsela, whose reports contributed to former president Jacob Zuma’s ousting in 2018, Mkhwebane’s reports generally appear to favour Zuma’s allies. She has denied allegations that she is partial.
Mkhwebane was appointed by parliament in 2016, when Zuma was president. Several of her reports and recommendations have been overturned in court and her suitability for office has been called into question a number of times. Adding to her woes was a court ruling last week that she should provide documents related to her employ in the country’s intelligence services.
Go ahead?
The parliamentary inquiry needs a 50% plus one vote majority to go ahead.
Since the ANC occupies 249 out of the 400 seats in the national assembly, at least part of the ANC caucus would have had to vote in favour of the inquiry for it to go ahead.
In this latest event, it appears there has indeed been a small rebellion in the ANC ranks, and multiple abstentions. The House eventually voted with 275 for, 40 against and one abstention.
A number of ANC MPs opposed to the inquiry appeared to have stayed away altogether, while four smaller parties out of a total of 14 represented, objected to the process going ahead.
Any subsequent decision to remove Mkhwebane would need the support of two-thirds of the national assembly, or 267 votes.
The opposition EFF says it will contest the decision in court.
ANC secretary general Ace Magashule – not an MP, but aligned to Zuma – last week said “principled” party members must vote against the inquiry because it was championed by the opposition Democratic Alliance and supported by ANC members aligned with President Cyril Ramaphosa.
Magashule and his allies claim Ramaphosa is upset with an adverse finding she made about his campaign funding for the ANC presidency in 2017.
The ANC’s parliamentary chief whip Pemmy Majodina contradicted Magashule. She said the “caucus held an extensive discussion on the matter and resolved to support the process”. According to reports, the matter was referred to the party’s top six leadership to decide on during their meeting on Monday 15 March.
Intelligence concerns
Adding to Mkhwebane’s woes is an order by the appeal court last week that she should produce documents on her employ as an intelligence analyst while she was posted in China, prior to her appointment as public protector. Insiders say she played the role of a “political commissar” rather than a spy.
Some inside the public protector’s office say Mkhwebane is one of the remnants of Zuma’s “state capture” project of grand corruption. Former public protector provincial representative in the Free State, Sphelo Samuel, said Mkhwebane’s appointment was “at best” to serve “a particular faction in the ANC”.
It also served “to destroy the prestige and effect of that office for the ground to be fertile for corruption by politicians aligned to the previous president”.
Samuel said there is a rumour doing the rounds that the ANC’s top leaders jumped up and exclaimed: “Yonk’into ihlangene”, meaning, “everything is in place”, when informed that her appointment had been approved by parliament.
An angry veteran
Samuel had worked for the office for two decades and under all four public protectors since the office’s establishment in 1995. Last year, he was dismissed – with a hearing held in his absence – after he complained to parliament about conditions in the office under Mkhwebane.
The charge against him was of assault, related to a scuffle with a disgruntled complainant in 2011. But he has denied it was an assault.
Samuel said the first public protector, Selby Baqwa, was mainly focused on establishing the office. His successor, Lawrence Mushwana, set up systems, including a community “outreach programme”, which only took off under Madonsela, “with the aim of taking the office and its services to the communities”.
He said: “The office enjoyed respect and prestige during her term, which was characterised by a robust approach to attacking corruption.” But it also “became a thorn in the flesh of most politicians in government”, especially when it ruled that Zuma should pay back public money used for upgrades at his private home in Nkandla.
Peer review
Madonsela’s reports also targeted other senior officials, and by the time her tenure came to an end in 2016, a probe against Magashule’s projects during his time as Free State premier was underway.
“She also continued a tradition of peer review that was started by her predecessor, advocate Mushwana,” Samuel said. The public protector’s provincial representatives and senior investigators would meet once a quarter as a think tank committee to “discuss, critique and approve the release of reports before they went out”.
Disagreements between Madonsela and officials were ironed out at these meetings, and it also contributed to high staff morale, Samuel said.
No more think tank
Mkhwebane abolished the think tank committee after a few sittings, “where she was undecided and overwhelmed by the legal arguments we would raise in discussing reports”, Samuel said.
“She took it upon herself to decide on her own how reports should be decided, with disastrous results. The legal challenges to her reports are testimony to this.”
Complete the form and download, for free, the highlights from The Africa Report’s Exclusive Ranking of Africa’s top 200 banks from last year. Get your free PDF by completing the following form
He also said “staff morale declined” and the working environment is now “characterised by fear, intimidation, victimisation and bullying” – as well as “purges” of a number of long-serving staff members who have been critical of her.
Samuel also claimed Mkhwebane’s outreach efforts and speeches, many of which go under the radar of the media, serve the interests of the ANC faction aligned to Zuma.
Pivotal test
This week’s vote was a pivotal test for ANC MPs. They have in the past used their parliamentary majority to protect Zuma, despite evidence and rulings against him.
Mkhwebane’s spokesperson Oupa Segalwe said the independent report was “a pronouncement on the alleged existence of prima facie evidence against the public protector and not findings of wrongdoing”.
He pointed out that there were court cases underway on her fitness to hold office and that she was confident that she would be cleared by “both the parliamentary process and the judicial proceedings”.
He added that the work by Mkhwebane’s office – “processing all incoming complaints of maladministration and improper conduct” – was ongoing.
Mkhwebane also previously told the Democratic Alliance to apologise after its initial attempt in 2019 to prove that she was on the payroll of the State Security Agency – the country’s intelligence services.
Look at the evidence
Lawson Naidoo from the Council for the Advancement of the South African Constitution said MPs should this week “apply their minds to the evidence before them” and desist from “political grandstanding”.
He said even though the independent panel was appointed to establish if there was “a prima facie case”, the report “would tell you there is overwhelming evidence” to impeach Mkhwebane.
“To simply ignore that report is likely to be challenged and any decision taken to the contrary might well result to a challenge to the rationality to that decision [in court],” he said.
Notable cases
Madonsela’s top five:
1. Police Commissioner Bheki Cele implicated in a leasing scandal (2011)
The powerful police chief was dismissed after Madonsela found that the lease of buildings used by police was unlawful. She didn’t find any evidence that the police were directly involved in influencing the deal but recommended that action be taken against the officials involved.
2. Cooperative governance minister Sicelo Shiceka visiting his girlfriend in Switzerland (2011)
Madonsela found that Shiceka spent excessive amounts of money on hotel stays in Switzerland, where he went to visit his girlfriend, and that the money spent was “of no value to the state”. He remained in his position but died in 2012.
3. Economic Freedom Fighters leader Julius Malema’s business dealings (2012)
Madonsela investigated claims that Malema, while he was ANC Youth League leader, influenced Limpopo government officials to award tenders to a company he was linked to. She found that the tenders were illegally awarded and recommended that they be cancelled.
4. SABC chief operating officer Hlaudi Motsoeneng’s fake qualifications (2014)
Madonsela found that Motsoeneng faked his matric (high school) certificate, irregularly hiked his salary, made improper appointments and abused his powers, and she recommended disciplinary action against him and other implicated officials.
5. Former president Jacob Zuma’s Nkandla home upgrades (2014)
Madonsela found that the “security upgrades” to Zuma’s home, which included non-security items like a cattle kraal, a chicken run, swimming pool and tuck shop, improperly benefited him and ordered him to pay back a portion of the money.
Mkhwebane’s top five:
1. The ABSA-Bankorp matter (2018)
Mkhwebane’s report found that ABSA bank should repay R1.1bn ($74.2m) to South Africa’s central bank for debt that dates back to a loan agreement between Bankorp, acquired by Absa in 1992, and the Reserve Bank. The report was overturned in a court and a number of court actions have, however, followed, including a case of perjury against her, meaning it was also ruled that she should personally cover 15% of the Reserve Bank’s legal costs in the matter.
2. Former Free State premier Ace Magashule and the Estina dairy farm project (2018)
Mkhwebane found that Magashule, now ANC secretary general, and three other government officials, failed to exercise their oversight duties in a dairy farm project in the Free State where money was spent but nothing was delivered. A court, however, found that she failed in her duties to properly investigate the project.
3. South African Revenue Services (SARS) “rogue” unit and minister Pravin Gordhan (2019)
Mkhwebane found that former SARS commissioner Pravin Gordhan, currently the public enterprises minister, had violated intelligence laws by overseeing the establishment of an “intelligence unit” at SARS in 2007 – dubbed the “rogue unit” – and that he inadvertently misled parliament by failing to disclose a meeting he had with the controversial Zuma-linked Gupta family. The report was set aside by a court and issued a punitive costs order against her, describing her conduct as “egregious”. The Constitutional Court upheld the ruling after the Economic Freedom Fighters and Mkhwebane appealed.
4. Police minister Bheki Cele and the witness protection programme (2018)
Mkhwebane found there was “undue delay, improper conduct, gross negligence and maladministration” by Cele and his ministry in providing proper protection to two state witnesses and whistleblowers. The court found that the National Prosecuting Authority was responsible for providing protection to witnesses, not the police.
5. President Cyril Ramaphosa’s campaign funds (2019)
The Public Protector found that Ramaphosa was obliged to disclose the funds donated to his CR17 campaign in 2017 for ANC president after revelations that it got money from Bosasa, a company implicated in large-scale corruption. The court disagreed with her findings and remedial actions and set them aside, and a judgement on her appeal to the Constitutional Court is currently pending.
No comments :
Post a Comment