Suspension not proof of president’s bias
The public protector has issued a litany of frivolous objections aimed at blocking her impeachment
‘Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But, they are not entitled to inject their personal views into judgments or express their political preference.” This is an extract from a judgment of the supreme court of appeal (SCA) handed down unanimously on 12 January 2009.
The judgment overturned Judge J Nicholson’s verdict in a case that involved the National Prosecuting Authority and former president Jacob Zuma. Nicholson had ruled that the charges against Zuma should be withdrawn on account of a political conspiracy.
In its ruling, the SCA berated Nicholson for “failing to distinguish between allegation, fact and suspicion”.
My mind was taken back to that 2009 judgment, almost 13 years ago on reading the judgment from the Cape Town high court issued by a full bench. The case involved the embattled public protector, Busisiwe Mkhwebane, who had pleaded with the court to order parliament to halt her impeachment process and to nullify her suspension by President Cyril Ramaphosa.
The judgment rejected the plea to stop the impeachment process but granted Mkhwebane’s request to declare her suspension invalid.
The judges nullified the suspension saying that the president was biased due to a conflict of interest. This was because Mkhwebane had Ramaphosa investigated on six separate occasions and, at the time of her suspension, had launched another investigation related to the burglary at his Phala Phala game farm.
According to the judges, the timing of the suspension was most troublesome. It happened a day after Mkhwebane had announced that she was investigating the president, and just before the Cape Town high court issued its decision on Mkhwebane’s application.
In other words, the court didn’t base its ruling solely on what it calls a conflict of interest, but also felt that Ramaphosa sought to render its decision null and void. The reasoning of the court is self-contradictory and based on erroneous assumptions. It is illogical.
Let’s start with what the court deemed as the key affront, precipitating its decision — the matter of timing. Once Ramaphosa received notification from the then speaker of parliament, Thandi Modise, that parliament was about to commence with the impeachment process, he was bound to take a decision on whether to suspend Mkhwebane.
Mkhwebane was always likely to have a problem with the timing of the decision, whenever it would have been taken. This is because she was, from the moment it became apparent that she would be impeached, constantly looking for a reason to block it.
She initially objected to the very idea of impeachment, when it was initially mooted, saying there were no rules to guide the process. That was correct and, on the face of it, seemed a legitimate concern. But her objections didn’t end there.
Once the rules were put in place, prescribing setting up a panel to determine whether there was prima facie evidence to remove her, she objected to the inclusion of judges, and to the speaker informing the president that parliament was ready to commence with the impeachment process.
The latter objection was quite glaring in its desperation, for that was clearly spelt out in the Constitution. That is, once the process of impeachment starts, the president can suspend the public protector. And so there was no way the president could initiate the suspension, as permitted by the Constitution, without knowledge of the status of the process.
Mkhwebane complained that the speaker informed the president without telling her.
Many more objections have since followed and there’s even one against the chairperson of the committee for what Mkhwebane says is the denial of sick leave.
Mkhwebane, in other words, has issued a litany of frivolous objections aimed at blocking her impeachment. She was bound to object, citing one issue or another, to the timing of her suspension. It so happens that Ramaphosa issued the suspension just after Mkhwebane had announced her investigation into the Phala Phala saga.
The judges contend that the president did not do so simply in the course of normal duties. Rather, they found that he was subjective and that the suspension was not only a retaliatory strike at Mkhwebane but was also aimed at killing the investigation.
The contention of potential bias, however, is inconsistent with how the judges reasoned elsewhere in relation to Modise, and how the office of the public protector generally works. For instance, Mkhwebane had also complained about Modise, saying she would not be impartial.
She had earlier found against the speaker for improper authorisation of the use of a state-owned plane, to Zimbabwe, by her political party. But the court dismissed those concerns, arguing that Modise’s conduct had not veered outside of her prescribed duties. She had shown neither malice nor favour but strictly carried out her prescribed duties.
Ramaphosa’s role and conduct here haven’t been fundamentally any different to Modise’s. It remains the prerogative of the president to consider suspending the public protector on the condition that parliament has resolved to impeach her. And nothing in Ramaphosa’s conduct has suggested a deviation from the prescribed process.
He didn’t rush to suspend her. But, the judges insist that Ramaphosa didn’t have to suspend her. This is correct. He’s not obliged but may consider whether to suspend her.
In the case of Mkhwebane, and because she was investigating him, the judges reasoned that Ramaphosa didn’t have an open mind.
He was prejudiced against her. This is, however, a mere supposition without any evidence.
Mkhwebane’s suspension cannot be taken as proof of the president’s bias. He was doing his prescribed constitutional duty the same way Modise did. Moreover, the judges are implying that someone else, who had not been investigated by Mkhwebane, would not have suspended her. There’s hardly any reasonable person with regard for the integrity of the office of the public protector who wouldn’t have suspended Mkhwebane.
The report of the independent panel raises serious questions not just about her competence, but character as well. She’s proven to be deceptive. This has, in turn, served to cast doubts on her reports.
Now it’s easy for any questionable person to dismiss her reports, however sound they may be. This also has the potential to discourage, if it has not done so already, potential whistleblowers to report complaints to her because of doubts over her competence and ethical conduct.
Frankly, any reasonable person asked to consider Mkhwebane’s suspension would have taken the same decision as Ramaphosa. It was not about Ramaphosa’s interest but in defence of the dignity of the office of the public protector.
Mkhwebane’s suspension, as the judges admitted, is immaterial to the investigation into the Phala Phala saga.
The investigation will continue regardless of the occupant of that office. And so Mkhwebane’s suspension could not have been taken with the intention of stopping the probe.
One suspects that the Cape Town high court decision was never about the merit of the case, but simply an instinctive reaction to a perceived snub. Ramaphosa’s decision rendered the court’s impending ruling futile.
In insisting on making itself relevant, the court may have just made itself look pitiful. One can’t see it escaping the kind of reprimand that was visited upon Judge Nicholson for his amateurish attempt at judicial activism.
No person with regard for the integrity of the office of the public protector would not have suspended Mkhwebane
Mcebisi Ndletyana is professor of political science at the University of Johannesburg.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the