By: Carl ‘Mpangazitha’ Niehaus
Recent shocking revelations in the media about a well-orchestrated plan to extort money from the embattled Public Protector, Advocate Mkhwebane, in exchange for the cessation of political attacks and removal proceedings against her have sent shockwaves through the political landscape, raising concerns about corrupt manipulation of legal processes and abuse of power by the ruling ANC.
Not surprisingly, these revelations come just a week after Presidential spokesperson Vincent Magwenya publicly announced that President Cyril Ramaphosa will no longer pursue a legal application to have the Section 89 Panel’s report into his conduct during the Phala Phala farm gate incident reviewed and set aside. The Panel had found that the President may have seriously violated sections 96(2)(a) of the Constitution and Section 34(1) of the Prevention and Combating of Corrupt Activities (PRECCA) Act, thus violating his oath of office.
Magwenya attributed the decision to the role played by the ANC-dominated National Assembly in clearing Ramaphosa before any serious investigation was undertaken by it. Magwenya stated, “The Panel report and all issues associated with it have become moot and they are of no practical and legal consequence because on 13 December 2022, the National Assembly decided to reject the motion to refer the Panel report to an impeachment committee. While that decision remains valid, the Section 89 panel report carries no weight in law.”
These developments bring into sharp focus the complete failure of the ANC-dominated National Assembly to play the robust role envisaged for it under our constitutional scheme.
In case the ANC needs a reminder, the Constitution imposes serious constitutional obligations on the National Assembly under section 55(2) of the Constitution. Section 55(2) provides that:
“The National Assembly must provide for the mechanism –
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of—
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state”.
According to Ramaphosa’s spokesperson, it is intuitively obvious that the National Assembly failed to fulfill its constitutional obligation to hold the President accountable. First, it grudgingly agreed to set up a Section 89 inquiry panel after dilatory maneuvers by the Speaker and threats of litigation.
On 13 June 2022, I also opened a case of money laundering and kidnapping at the Rosebank police station, against Ramaphosa because I firmly believed that the President should be held accountable for his crimes. I am still waiting to receive any feedback whatsoever from the SAPS or NPA about those charges – and whether they are actually being investigated – that were supplementary/complementary charges, supporting and adding to the initial charges that were brought against Ramaphosa by Mr. Arthur Fraser. I still strongly believed the opening of similar cases against the President should become a national campaign by all South Africans to ensure accountability and corruption-free governance.
The African Transformation Movement (ATM) President, the Honourable Vuyo Zungula (MP), tabled an Official Motion on the 14th of June 2022 that parliament investigate President Cyril Ramaphosa by forming a Section 89 Committee of Inquiry over allegations that the latter had violated Section 89 of the South African Constitution. Immediately thereafter the Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, declined the request for the said ad hoc committee for an impeachment of the President.
The Speaker used as a pretext the false allegation that she could not determine which of the listed grounds in section 89 (1) Zungula’s request relied on, saying: “In terms of rule 129(a)1(a)(i)-(iii), the motion must be limited to a clearly formulated and substantiated charge and grounds specified in section 89 of the constitution.” Eventually, on August 5, 2022, the Speaker agreed to the ATM’s motion for an Independent Panel to investigate allegations that could lead to the possible impeachment of the President, complied with the Constitution, rules, and established practices and an independent panel would be appointed. Her delay was a calculated ploy and deliberate.
The three-member Panel consisted of retired Chief Justice Sandile Ngcobo, Judge Masipa who presided over the Oscar Pistorius trial, and senior advocate, Mahlape Sello. Ultimately the Section 89 Panel found that President Cyril Ramaphosa had violated his Oath of Office in handling the break-in and theft of a huge amount of money in US$ at his Phala Phala game farm. Specifically, the panel found that Ramaphosa had committed four serious violations and that there is prima facie evidence against him.
The Report states: “In light of all the information placed before the Panel, we conclude that this information discloses, prima facie, that the President may have committed:
A serious violation of section 96(2)(a).
A serious violation of section 34(1) of the Prevention of Corrupt Activities Act (PRECCA)
A serious misconduct in that the President violated section 96(2)(b) by acting in a way that is inconsistent with his office.
A serious misconduct in that the President violated section 96(2)(b) by exposing himself to a situation involving a conflict between his official responsibilities and his private business of the Constitution”.
The Panel‘s clear and unequivocal report should have triggered the duty of the National Assembly to hold the President accountable. The Panel furnished the National Assembly with its Report which contained unfavourable findings which warranted serious investigation.
Despite these very serious findings, The National Assembly resolved to absolve the President of any responsibility, and its members, including the Justice Minister Lamola, went on a rampage against the Panel, accusing it of incompetence, lack of ethics, and political bias amongst other unsavoury epithets.
Given Ramaphosa’s enormous wealth and ability to disburse bribes and largesse to his puppets in the ANC and parliament, it is not surprising that the ANC Members in Parliament have long abandoned fealty to the Constitution as a sworn constitutional duty. They evidently believe that loyalty to one man supersedes everything else, including the supreme law of the land, the Constitution.
Quite naturally, it follows that this ANC-dominated parliament will never fulfill its constitutional obligations to hold Ramaphosa accountable. The President can thus boastfully claim that “the panel report and all issues associated with it have become moot and they are of no practical and legal consequence because on 13 December 2022 the National Assembly decided to reject the motion to refer the panel report to an impeachment committee”.
All this only serves to tells us one thing – there can never be accountability and a corruption-free government as long as the National Assembly is still dominated by the compromised ANC MPs whose loyalty is to pieces of silver than to the founding principles of the ANC.
It should therefore come as no surprise that a corrupt ANC would target for unbridled abuse the fearless Public Protector who has exposed corruption at the highest level of the ANC kleptocracy. Our Constitution guarantees security of tenure for the Public Protector in a unique way. She is appointed for a non-renewable period of seven years. (Section 183). Under Section 194 which governs removal from office, the “Public Protector, may be removed from office only on –
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) the adoption by the Assembly of a resolution calling for that person’s removal from office”.
These tenure provisions and protection against removal by a simple majority stand as bulwarks of decisional independence allowing removal of Public Protector ‘only’ on proven grounds spelled out in Section 194. But the sadly the Constitution means nothing to the corrupt ANC members.
We know the extortionist stratagem deployed against Advocate Mkhwebane is the fate of Black women who stand up to the ongoing male-dominated status quo – this partnership between ANC officials and white business – these bosses of the extractive industry who take and take and protect themselves at all costs – at the expense of all Africans, be they workers, children, women.
Advocate Busisiwe Mkhwebane was unanimously appointed to this Public Protector portfolio unopposed in October 2016. However, since she started her mandated work to investigate certain state officials’ wrongdoings, she has been harassed and vilified by the Boys Club backed by white corporate bosses, and their corporate media machinery. To the average member of our society the persecution of the Public Protector has the undeniable appearance of a vendetta – Mkhwebane must suffer because she found evidence implicating Ramaphosa in wrongdoing, through clandestine corporate funding supporting his election campaign. For the sake of protecting Ramaphosa, the ANC is willing to be seen as a vengeful party working in cahoots with the DA to retaliate against Mkhwebane, shield corruption, and to pursue impeachment as a way to entrench white capitalist power.
It is incongruous for our ANC leadership to pontificate about women’s and human rights when they have witnessed, and assisted, those who have stripped Mkhwebane of all her magnificence and human dignity.
South African citizens and ANC members must ask themselves soul-searching questions – is it ever justified for a National Assembly to strip a citizen of their right to dignity and human rights by lying about, or changing the law, just to deal with that person? Can MPs really abuse their power by bringing frivolous impeachment proceedings against a Public Protector as a means of extorting money from her?
It explains why they would pursue sham removal proceedings against a public protector who has a non-renewable term and is left with less than four months remaining in office.
The abuse of Advocate Mkhwebane is a disgrace to this democracy. It is a disgrace to South Africa. It is a disgrace to the judicial and parliamentary system and exposes its lip service to impartiality. It shows up the contradictions in constitutional law, and its propensity to bend in favour of business and white privilege at the expense of the landless majority. It speaks to how profits are put before people and how devalued the Black Woman is in the neoliberal framework that underpins the constitution. It fails to recognise that African women are a precious resource, and it is a grave injury to all women when one woman is subjected to a cruel and unusual attack.
