Protector ‘could cite conflict of interest’ to prevent removal
• Ramaphosa responds to Mkhwebane’s bid in court to halt parliamentary process with submission on president’s powers under the constitution
President Cyril Ramaphosa has raised concern that the public protector could “create a conflict of interest” as a reason to shield herself from being suspended or removed from office.
This is Ramaphosa’s argument in an explanatory affidavit filed in the Western Cape High Court in Busisiwe Mkhwebane’s urgent bid to block parliament’s inquiry into her fitness to hold office. The public protector wants proceedings, which have already begun in parliament, to be halted, pending her main challenge to the unconstitutionality of the process.
In his explanatory affidavit, Ramaphosa said he was not opposing or supporting the public protector’s application, and would abide by the court’s decision. However, he wanted to deal with issues such as Mkhwebane’s argument that he was too conflicted to take any action against her.
Section 194(3) of the constitution states that the president may suspend a head of a Chapter 9 institution at any time after the start of proceedings by a parliamentary committee for the removal of that person. He must remove a person from office upon adoption by the house of the resolution calling for that person’s removal.
Ramaphosa argued that the fact that the protector at some stage had made adverse findings against a president could not on its own “neutralise” the president from exercising a constitutional power that implicates the office of the public protector, as Mkhwebane has suggested.
“If the mere fact that the public protector in the past investigated another organ of state were by itself sufficient to create a conflict of interest, the public protector could immunise herself against the processes envisaged under section 194 of the constitution by initiating investigations (no matter how spurious) against those organs of state or individuals she considers to be a threat to her.
“That outcome could not have been intended by lawmakers when drafting the constitution,” Ramaphosa said.
The president accepted that a potential conflict of interest has arisen from the pending litigation between Mkhwebane and himself and that he was duty bound to act in a way that would exclude the possibility or perception of bias.
Ramaphosa said it was not clear whether the interim order sought by Mkhwebane against him was meant to completely neutralise him from exercising his powers under section 194(3) of the constitution, or whether he would still be allowed to delegate the powers to another member of cabinet. If the intent was to completely prevent the exercise of power provided in the constitution by any member of the cabinet, then it was “overboard and, as a result, neither competent nor appropriate”.
Ramaphosa and Mkhwebane have been locked in legal battles since her investigation into the funding of his ANC presidential campaign and her subsequent report. The president is also battling Mkhwebane’s finding on public enterprises minister and key Ramaphosa ally Pravin Gordhan. In a separate finding on the so-called rogue unit, she ordered the president to take disciplinary action against the minister. These reports have been taken on judicial review.
The DA has asked speaker of parliament Thandi Modise to set in motion processes to have Mkhwebane removed from office, after hard-hitting comments about her honesty, credibility and competence in various courts. In turn, Mkhwebane has gone to court asking it to halt the process already under way to declare her unfit to hold office.
She argues that the process is unfair and unconstitutional. She has accused the speaker of siding with Ramaphosa in a legal dispute with him regarding a Bosasa donation to his ANC presidential election campaign in 2017. In her report, Mkhwebane found Ramaphosa had violated the executive code of ethics by not declaring donations to his ANC presidential campaign in 2017.
She also found that Ramaphosa deliberately misled parliament when he responded to a question in the National Assembly about the R500,000 donation from former Bosasa boss Gavin Watson.
THAT THE PROTECTOR HAD MADE ADVERSE FINDINGS AGAINST A PRESIDENT COULD NOT ON ITS OWN NEUTRALISE THE PRESIDENT
IMMUNISING HERSELF AGAINST PROCESSES COULD NOT HAVE BEEN INTENDED BY LAWMAKERS WHEN DRAFTING THE CONSTITUTION
Mkhwebane ordered that the donations Ramaphosa received in his “CR17” campaign be published, that his failure to disclose them to parliament be looked into, and that the National Prosecuting Authority investigate evidence of alleged money laundering by Ramaphosa.
In her papers, Mkhwebane argued that Ramaphosa could not lawfully suspend her, because he was conflicted.