Paul Ngobeni
Pretoria - President Cyril Ramaphosa has brazenly demonstrated, through his summary suspension of Public Protector advocate Busisiwe Mkhwebane while she is investigating him for corruption and violation of Section 96 of the Constitution, that he believes there is one law applicable to his predecessor Jacob Zuma, and another law applicable to himself when it comes to matters of good governance and public administration.
Ramaphosa knew to a moral certainty that a president suffering from alleged conflict of interest cannot make valid appointment, suspension or removal decisions. This was the admonition of the court in Corruption Watch (RF) NPC and Another v President of RSA and Others; 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) (December 8 2017).
There Judge Dunstan Mlambo declared that “in terms of s.96{2)(b) of the Constitution, the incumbent President (Zuma) may not appoint, suspend or remove the National Director of Public Prosecutions or someone in an acting capacity as such” because of a perceived conflict of interest.
Judge Mlambo further declared that in such circumstances, “as long as the incumbent (Zuma) is in office, the Deputy President (Ramaphosa) is responsible for decisions relating to the appointment, suspension or removal of the National Director of Public Prosecutions or, in terms of s.11(2)(b) of the National Prosecuting Authority Act, someone in an acting capacity as such”.
Ramaphosa knowingly ignored this admonition from the judiciary because he either believed that he is immune from laws that were applied to Zuma, or that the pliant or obsequious judiciary will, as usual, bend the laws to favour him if he is challenged.
His bizarre decision to make the suspension decision instead of allowing his deputy David Mabuza to make it reflects the undeclared ANC internecine battles for succession and a breakdown in trust between the president and his deputy.
The public interest is sacrificed on the altar of such ANC faction-ridden succession battles.
A sober, well-advised president would have known that summary suspension of the public protector immediately upon her commencement of an investigation into the alleged corruption and ethical violations would run afoul of Section 96 of the Constitution. But Ramaphosa’s actions expose the incompetence and moral bankruptcy of his party, the ANC.
Remarkably, most of the complaints of conflict of interest involving politicians investigated by the public protector are initiated by political parties or their members. When the same parties or their representatives in the National Assembly who are in litigation with the public protector (or have cases pending before her) are allowed to initiate removal proceedings, the spectre of a serious conflict of interest looms large.
Most important, the constitutionally guaranteed independence (decisional and institutional) of the public protector is gravely undermined when the subject of the investigation can pre-emptively suspend the incumbent.
Such a move unfairly places the deputy public protector in a quandary where she must choose between a timid investigation that favours Ramaphosa, and a vigorous more searching investigation which further exposes the corruption of the president.
She must now investigate whether the suspension of her colleague was calibrated to prevent her from investigating Ramaphosa, who has painted himself as Mkhwebane’s nemesis.
As matters stand now, there is damning evidence against the president regarding the alleged constitutional violations based on his own admission and actions.
By his own admission, Ramaphosa declared at the ANC Limpopo provincial conference that he moonlights as “a farmer” who buys and sells animals for profit. That is a clear violation of Section 96(2) of the Constitution, which states that the president, his Cabinet and deputy ministers “may not: (a) undertake any other paid work”.
Because he engaged in “other paid work” the president violated Section 96 (b) in that he acted “in any way that is inconsistent with their oath of office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.
Likewise he also violated Section 96 (c) in that he used his position as president to enrich himself or improperly benefit himself through the use of state resources.
This goes beyond merely engaging in the business of farming for profit while at the same time serving as president – the allegations that the Presidential Protection Unit was used as his private posse of vigilantes to track down, kidnap and allegedly torture suspects who stole from his private business is clearly a violation of both the Constitution and criminal laws.
The cowardice and hypocrisy of the ANC members of Cabinet and parliamentarians is mind-boggling. With sheepish timidity the Cabinet members appear powerless to effect a complete removal, consisting of either the removal of the president from public office, or removal of the private interest (which can occur through arms-length transactions or by placing assets in a blind trust).
Nothing prevents the ANC from instructing Ramaphosa to cease and desist from such blatant violation of the Constitution or exposing himself to further unnecessary risk of conflicts of interest.
Ramaphosa’s public admission that he actively engages in business as a farmer has not moved either his ANC Cabinet members or parliamentarians to act expeditiously. The other option would have been a demand that the president recuse himself from taking any action against the public protector, or delegate such powers to his deputy, as such action involves matters that bear upon Ramaphosa’s private interest.
For fear of Ramaphosa’s money and reprisal the entire ANC appears paralysed, even though removal would in theory be the most efficacious at curbing corruption because future presidents are more likely to respond to stronger disincentives.
But the reasons are not difficult to discern. There are ministers or MPs who are currently under investigation by the public protector, or have had adverse findings made against them.
But insouciance to the Constitution’s conflict of interest provisions abound. Ordinarily such characters would be barred from participating in the public protector’s impeachment in any way as they have a conflict of interest.
Political parties are the main complainants before the public protector and some have been vociferous in condemning her for issuing reports and remedial orders that did not suit their political agendas. Some parties like the DA are currently involved in litigation against the public protector – should they be allowed to invoke the Section 194 removal enquiry to deal with matters in which they were losing litigants?
Evidently, the much-touted “New Dawn” and heated anti-corruption rhetoric of Ramaphosa’s administration are a mere smokescreen for more corruption and malfeasance in government.
The Constitutional Court cautioned that in the public protector’s “execution of her investigative, reporting or remedial powers, she is not to be inhibited, undermined or sabotaged. When all other essential requirements for the proper exercise of her power are met, she is to take appropriate remedial action”. In EFF v Speaker and Others; the court observed that her “investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power”.
Here Ramaphosa has, with the acquiescence or collusion of his Cabinet and lame duck Parliament, launched a pre-emptive strike to suspend the public protector who was poised to investigate him. On its own, such conduct must be investigated as it amounts to further violation of Section 96 of the Constitution.
All ANC Cabinet ministers and parliamentarians must heed the admonition of the Concourt, which further observed that the Constitution requires the public protector to be effective, and identifies the need for her to be assisted and protected.
The climate conducive to the independence, impartiality, dignity and effectiveness of the public protector is effectively destroyed when she can be subjected to summary suspension, and personal and political attacks on the basis of matters still sub judice or pending investigation.
The speaker cannot flout her obligation to assist and protect the public protector so as to ensure her dignity and effectiveness by ignoring Section 96 of the Constitution, which prohibits the president from making decisions on matters in which he is conflicted. Obviously the public protector would have no dignity and be ineffective if her powers to investigate Ramaphosa could be thwarted willy-nilly by a president anxious to avoid serious investigation and a potential impeachment process.
Mkhwebane stands no chance of effectively strengthening our constitutional democracy if her decisional independence can be undermined and thwarted by politicians with an axe to grind.
Ngobeni is a legal analyst and holds a Juris Doctor degree from New York University.
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