Nkosikhulule Nyembezi
It one of those pieces of news that was simultaneously stunning and utterly expected: President Cyril Ramaphosa formally removed Advocate Busisiwe Mkhwebane from the Public Protector’s office just weeks before her seven-year term expired in mid-October.
The removal follows the September 11 impeachment vote in a special sitting in the Cape Town City Hall, concluding the parliamentary process of the inquiry into her fitness to hold office.
No doubt, Mkhwebane and the CR17 group have been embattled almost from the start of the president’s tumultuous five-year-long reign.
Mkhwebane took over from Advocate Thuli Madonsela, who – whatever criticism levelled against her – was popular with the staff and many South Africans because “she was not incompetent”.
That is according to FF Plus MP Corné Mulder, who scoffed at the sentiment that Mkhwebane was “a vulnerable, poor victim of an evil conspiracy” for her rulings against the executive.
Even without being drawn into evil conspiracy theories, many witnessed Mkhwebane’s clear determination, supported by powerful politicians, as she set her eyes on some middle political ground between various ANC factions that emerged after the party’s 2017 national conference.
There may be a middle in South African politics for the ANC alliance partners and its fraternal structures seeking a front seat in the party’s control of state resources.
Still, the public protector is not the institution to find it.
No, the public protector is a constitutional institution to serve citizens, not party faction leaders. More importantly, aiming for the middle political ground amid faction fights is extremely dangerous for democracy when there is a party – the imploding ANC, of course – in the grip of those evading implementation of the Zondo Commission and the Auditor-General’s recommendations.
It is this shifting middle political ground that led the National Assembly to set its sights on Mkhwebane following her investigations and reports – namely, the SA Reserve Bank/Absa matter, the Vrede Dairy Farm scam, the SARS investigating unit (or so-called “rogue unit”) and the CR17/Bosasa matter. Mkhwebane’s efforts did not start well. Then several things happened, any one of which might have been fatal.
Several MPs highlighted during the debate that while numerous court judgments speak to her bias and loose understanding of legal and constitutional principles, several of her reports seemed to drop at crucial political moments, particularly in government party politicking.
For example, the Bankorp/Absa apartheid-era bailout report, which proposed changing the Reserve Bank’s constitutional mandate, came in the middle of the ANC’s July 2017 policy conference that suggested nationalising the central bank. It was a series of bad decisions, poorly executed, which played out disastrously.
As if to nix any sympathies within the fractured governing party, Qubudile Dyantyi, the ANC MP who chaired the Section 194 Inquiry, told MPs there was overwhelming evidence that not only sustained the main charges of misconduct and incompetence against Mkhwebane but also brought to light more missteps in the course of critical investigations by unearthing “even further examples of misconduct and incompetence that would have never come to the fore”.
The signs of a shifting middle political ground were evident early in 2020, when the ANC seemed ambivalent on Mkhwebane, even as the removal-from-office proceedings solidified.
Several party members publicly supported her.
“There is a process in place. The ANC has not discussed where we stand, so we can’t give you an answer either way,” was how then deputy SG, the late secretary-general Jessie Duarte, put it after the pre-2020 State of the Nation Address parliamentary caucus.
We cannot overlook that perhaps the governing party’s shift came over Mkhwebane’s decision to investigate Ramaphosa over the Phala Phala forex saga.
It was the second executive ethics probe – Ramaphosa successfully went to court to set aside the 2019 report into the funding of his CR17 campaign for party president. Ramaphosa’s
June 2022 suspension of Mkhwebane after she announced the Phala Phala investigation suffered manipulation in conspicuous ways, demonstrating party factionalism.
Nkosazana Dlamini-Zuma is a case in point epitomising the broader shift as the only Cabinet member absent from the impeachment vote, prompting the party Chief Whip, Pemmy Majodina, to say she will write a report to the party’s secretary-general, Fikile Mbalula, requesting action be taken against the minister in the Presidency responsible for Women, Youth & Persons with Disabilities.
But Mkhwebane would likely have survived all of this, if it were not for the one thing that mattered: the numbers.
Party ratings, Ramaphoria value and improved ANC fortunes in the polls are the coins of the realm in a political party scheme dependent upon patronage and largely in mainstream South African politics writ at large.
Suppose Mkhwebane’s hamhanded moves and commitment to giving equal time to power-hungry and divisive opponents had “worked” to marginalise the Ramaphosa detractors and propel the ANC’s party renewal rhetoric.
In that case, if Ramaphosa and ANC ratings had soared, electoral support had risen, brand value was restored ahead of the party candidate list conferences without demanding Ramaphosa’s decisive action in purging the corrupt individuals across party factions – nothing else would have mattered a whit.
But, sadly, these things would have been deemed tolerable if Mkhwebane’s efforts had “worked” in favour of the ANC. But they did not, and so she is out.
Unsurprisingly, members of the EFF, UDM, PAC and ATM argued that removal was Mkhwebane’s punishment for refusing to do the bidding of the ruling elite.
“Never has it happened anywhere in the world that a sitting ombudsman is removed, especially after finding against the powerful president and minister. Who is next in this brutality?” asked ATM leader Vuyo Zungula.
UDM leader Bantu Holomisa said Mkhwebane sinned by doing her job too thoroughly. He added she had brought to light crucial information on money that flowed into the CR17 campaign for Ramaphosa’s election as leader of the ANC after former DA leader Mmusi Maimane lodged a complaint to her office.
Instead, Holomisa suggested, the ANC and the DA sacrificed Mkhwebane and Maimane respectively, who were pursuing the truth. The PAC’s Mzwanele Nyhontso said Mkhwebane’s impeachment was a plain case of misogyny.
Those hoping for a finality should not hold their breath yet. The EFF has thrown Mkhwebane a tenuous lifeline by promising to seek a judicial review the report that led to her removal from office.
With Mkhwebane and her allies still fighting, there is little evidence that there will be nation-building takeaways from this debacle. But it sure would be pretty to think so.
Nyembezi is a policy analyst, researcher and human rights activist
Cape Times