By Bheki Mngomezulu
Recent developments in the country have left many people stunned. First, Arthur Fraser, the former spy boss, spilt the beans about the loss of millions of dollars at President Cyril Ramaphosa’s Phala Phala farm.
This took the country by surprise. But what was even more surprising were the alleged offshoots of the incident. Among them were the allegations of torture, bribery and failure to report the incident to the police, as should be the case.
While trying to digest this incident as a nation, political parties were equally concerned about it. UDM leader Bantu Holomisa proposed that the president go on sabbatical, at least until the middle of August.
Taking the matter even further, the leader of the African Transformation Movement (ATM), Vuyolwethu Zungula, wrote to Public Protector Busisiwe Mkhwebane, asking her to conduct an investigation into the matter.
In response, the public protector confirmed receipt of the letter and said she would conduct an investigation. But what also shocked the nation was the president’s decision to invoke section 194 of the Constitution and to suspend the public protector with immediate effect.
What should we, as a nation, make of the president’s decision? The answer is simple: we should look at the issue objectively in order to avoid being partisan. Constitutionally, the president acted in accordance with section 194 of the Constitution.
Politically, the timing of the president’s decision leads me to the conclusion that this was a political blunder. Section 194 clearly states that the public protector, like all other chapter nine institutions (including the auditor-general), may be removed from office on three grounds: (a) misconduct, incapacity or incompetence; (b) if there is 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. As things stand, none of the requirements have been met.
The public protector has not been removed from office. However, Section 194(3)(a) stipulates that the president “may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person, and (b) must remove a person from office upon adoption by the Assembly of the resolution calling for that person’s removal”.
I am outlining this constitutional process in order to demonstrate that, constitutionally, there is nothing untoward in what the president has done.
However, his decision has triggered a number of questions. For example, is it a coincidence that the president decided to suspend the public protector with immediate effect soon after she confirmed receipt of the complaint from the leader of the ATM and was ready to act on it? Was the suspension meant to prevent her from carrying out the investigation?
Another relevant question is whether the president took the decision knowing full well that this would be a topical issue and thus wanted to divert attention away from him following Fraser’s recent allegations levelled against him?
In both the questions, an insinuation could be made that the president abused his constitutional powers to protect himself. In a worse case scenario, another thought could be that he invoked this section of the Constitution in order to settle political scores.
The latter point is based on the fact that it is the same public protector who has investigated the president before – something that did not go down well with those who are in the president’s corner. The fact that the president took the public protector’s finding under review and won is not an issue.
What he did was within the confines of the law – something that any citizen could do. The concern is that the president suspended the public protector at a time when he was being asked by political parties and other South Africans to come clean on the Phala Phala matter.
If the matter of the public protector’s suspension were to go to court, the president would definitely emerge victorious, for the reasons I have stated. However, politically, the same decision has discredited him. It is for this reason that I strongly believe that what the president did was constitutionally correct but, politically, it was a blunder.
Let me conclude by repeating what I said in my column last week. Removing the public protector from office should not be the country’s priority. Her term of office is ending in 2023. What will the nation gain by the removal of the public protector? Should Parliament not invest its energy in the more pertinent issues facing the country?
*Mngomezulu is a Professor of Political Science and Deputy Dean of Research at the University of the Western Cape