Nkosikhulule Nyembezi
CAPE TOWN - In the current state of advocate Busisiwe Mkhwebane’s impeachment politics as public protector, I belong to the smallest, saddest, most pessimistic faction.
I’m a denialist. With almost a year to go before she finishes her seven-year term of office, I’m still shaking my head in disbelief – not a useful political act.
I don’t accept this near mystical, emotionally charged path she is walking to an impeachment, largely defined by scathing court judgments that invalidated her most politically explosive reports.
She claims her investigations into the Estina dairy farm scam, SA Reserve Bank, President Cyril Ramaphosa’s CR17 campaign, and the so-called SA Revenue Service (Sars) rogue unit – among others – were driven by a genuine desire to preserve the independence and powers of her office.
Yet some, like Ramaphosa, think otherwise, believing Mkhwebane was motivated by an “ulterior purpose” in her inclusion of details of his ANC election bank accounts, which he protested were irrelevant to her investigation into whether he misled Parliament about a R500 000 donation for his presidential campaign in 2017.
UCT public law professor Pierre de Vos summarised court judgments demonstrating that Mkhwebane is unfit for office and that she must be removed from her position forthwith, not only to protect her from herself but also to protect the public from the destructive impact of her rogue behaviour by also acting in bad faith in complete disregard of both the law and the facts to advance the political interests of those who promoted false narratives.
Dishonest? Tick. Incompetent? Tick. Irrational? Tick. Astonishing? Tick. Biased? Tick. Reprehensible? Tick. Shocking? Tick.
I don’t, I can’t, believe it. I reject it. I’m a denialist. My faction lives in daily bafflement. How can it be that today the country is still seized with the news that on March 15, National Assembly Speaker Nosiviwe Mapisa-Nqakula officially informed Ramaphosa that Parliament was continuing with Mkhwebane’s impeachment proceedings, opening the way for Ramaphosa to suspend her?
That the Constitutional Court last month effectively gave the Section 194 committee that handles the proceedings the green light to continue with the impeachment as long as Mkhwebane is allowed legal representation?
That despite being empowered by the Constitution to suspend Mkhwebane while the impeachment process is under way, Ramaphosa has all along (until March 17 when he gave Mkhwebane 10 days to give reasons why she should not be suspended), stood by his previously indicated decision not to do this while he is involved in litigation against Mkhwebane, as doing so would be a conflict of interest.
That all this is happening while on March 11, two days after the Constitutional Court dismissed her application to rescind a judgment against her, Mkhwebane has filed a second rescission application over a different judgment – asking the court to reverse the order that cleared the way for her impeachment?
What makes Mkhwebane so adamant that the green light given by the court to Parliament’s impeachment process has opened her up to the possibility of being suspended “by the biased president”?
What could it be that my faction does not get that has emboldened Mkhwebane to claim six “patent errors and ambiguities” in the judgment she is challenging are liable to be reviewed and set aside for a breach of the principle of legality?
The judgment Mkhwebane wants to be reversed now found that the rules for the impeachment of the heads of Chapter Nine institutions were unconstitutional in one respect, but unlike the high court judgment before it, the Concourt’s judgment did not affect Parliament’s ability to press on with its process against Mkhwebane.
Yet, Mkhwebane contends that while the principle of finality in litigation is important, it could never be in the interests of justice to preserve an unjust outcome reached by the Concourt under the banner of protecting finality.
That in Parliament, in Cabinet, in courts, and the media, a fight about Mkhwebane got so completely out of hand and pushed the critical institution of the public protector, like a depressed teenage self-harmer, to take out a razor to scour a forearm, and now contemplate its own throat?
My faction gets that the altruistic role-players seeking to save the public protector’s office and the country from the Mkhwebane saga are a broad church.
They do so using legal, political, and other acceptable channels.
Take a look at the span. It contains on all sides many decent, concerned people who have made their own decisions to act derived from anxieties about the erosion of accountability in the country’s politics, as well as the overall diminishing legitimacy of democracy-supporting institutions in the eyes of the people.
The latest AfroBarometer survey details the gravity of this situation.
They do so through their participation in a long string of legal battles as friends of the court. They vote in Parliament for the allocation of resources to support the work of the public protector.
Furthermore, they courageously speak truth to power in the media about the undercurrents causing turbulence in that office.
Passing along the spectrum, we come to people who are alarmed by the diminished role Parliament and the Cabinet are playing in providing an important counterweight to secret lobbying and influence peddling.
When it matters most, our politicians are failing in the implementation of a wide range of uncontested recommendations in the public protector’s reports, as if they are spiting Mkhwebane. Now we rub shoulders with those who long for a final resolution of many of these outstanding legal and political issues.
Truly, Mkhwebane’s impeachment politics have stirred something not heroic or celebratory or generous in the nation, but instead, have coaxed into the light from some dark, damp places the lowest human impulses to destroy our hard-won democracy, from the small-minded, the mean-spirited, to the greedy.
The complexities of this impeachment politics are already apparent; tempers on many sides are already frayed. For political, egocentric reasons, the trumpeted win-win arrangement advocated for by the constitutional principles of co-operative government and intergovernmental relations as well as the important need for the implementation of other measures to assist and protect the office of the public protector to ensure its independence, impartiality, dignity, and effectiveness, might seem to be beyond reach.
But my faction is now eagerly waiting to see how decisively Parliament is going to handle the impeachment process when it finally gets under way.
In the coming months, we hope for, but probably won’t get, the sceptical, scrutinising Parliament we should have as we work to resolve the saga in the public protector’s office and the Presidency while getting ready to replace Mkhwebane in 2023 and possibly re-elect Ramaphosa in 2024.
Nyembezi is a human rights activist and policy analyst
Cape Times