ANC legislators toed the party line in parliament on Tuesday and pushed public protector Busisiwe Mkhwebane a step closer to the exit door, in what is a victory for the side of the governing party aligned to President Cyril Ramaphosa.
On Tuesday, MPs voted in favour of establishing a committee to look into Mkhwebane’s fitness to hold office following a scathing report by an independent panel that found prima facie evidence of misconduct or incompetence by her. If she is removed, she will be the first head of a Chapter 9 institution to be booted out of office.
A total of 275 MPs present in the house and on the virtual platform voted in favour of establishing the committee, while 40 voted against. The National Assembly has 400 seats, with the ANC enjoying a majority of 230. The governing party had 168 ANC MPs in the chamber and on the virtual platform, with all members present backing the motion despite division in the party expressed earlier.
Ramaphosa’s internal foe, the party’s secretary-general, Ace Magashule, told the Sunday Times earlier this month that "principled" ANC MPs would not support a motion brought by the "enemy" DA. The official opposition, which initiated the motion for the removal of the public protector, had 83 MPs all voting in favour of the process, which was also backed by smaller parties such as the IFP and Freedom Front Plus.
While the outcome of the vote could give the faction aligned to Ramaphosa the upper hand in the battle for control of the ANC, it is understood that party leaders in parliament convinced most members that the vote on Tuesday was not a pronouncement on Mkhwebane’s guilt or innocence, but part of a process that would give her an opportunity to respond to her detractors. The true test will be whether party unity holds and MPs vote in favour of her removal should the inquiry recommend the step.
Mkhwebane’s time in office has been marked by controversy and accusations that she has involved her office in factional ANC battles, using it to defend those linked with former president Jacob Zuma. On the other hand, she was relentless in pursuing and making findings, later set aside in court, against Ramaphosa over the campaign that won him the ANC presidency in 2017, and public enterprises minister Pravin Gordhan over a widely discredited claim that he started a "rogue unit" at the SA Revenue Service.
A panel, which was chaired by retired Constitutional Court justice Bess Nkabinde and included lawyer Dumisa Ntsebeza and academic Johan de Waal, was appointed in November 2020 after a series of devastating court judgments against Mkhwebane. The panel called into question her fitness to run an agency set up to protect and promote democracy.
The public protector may be removed from office for reasons including misconduct, incapacity and incompetence. Should the parliamentary committee looking into her fitness for office concur with the panel’s report, the matter will be referred back to the National Assembly. At least two-thirds of MPs in the house will be required to remove her.
The ANC has been divided on the issue with transport minister Fikile Mbalula calling Mkhwebane one faction’s "hired gun", prompting her to open a case of crimen injuria against him.
A year ago, the courts trashed Mkhwebane’s findings against Ramaphosa, whom she had accused of lying to parliament and winning the ANC leadership race on the back of a campaign tainted by money laundering. The court declared the findings unlawful.
The EFF and UDM voted against establishing a committee to look into the public protector’s fitness for the job. EFF deputy president Floyd Shivambu said the panel’s report had already pronounced on the guilt of the public protector and therefore it was unfair as she was not given an opportunity to respond. The whole process was unconstitutional, he said.
Earlier in the day, however, the Constitutional Court dismissed Mkhwebane’s application for direct leave to appeal against a Western Cape high court judgment that rejected her bid to interdict parliament’s impeachment process. She had approached the apex court as an interim step pending her challenge to the constitutionality of the adopted rules for the impeachment of the heads of Chapter 9 institutions.
Council for the Advancement of the SA Constitution executive director Lawson Naidoo said it is not a foregone conclusion that Mkhwebane will be removed.
"Clearly there are divisions within the ANC for whatever reason … the process [removal of public protector], however, is not unfair and it is written in the rules," Naidoo said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.