Mpumelelo Mkhabela: Only ANC caucus can give SA a public protector who is fit and proper

The ANC caucus will for the first time since the sixth Parliament was inaugurated, deliberate on an issue that has far-reaching implications for our democracy: the removal from office of the Public Protector, writes Mpumelelo Mkhabela.

The ANC parliamentary caucus serves as a platform where directives from Luthuli House are discussed and decisions that substantially impact on the work of Parliament are taken. The outcomes of such discussions typically inform not only the substance but the tenor of debate in the legislature.

There are times when ANC MPs would be very combative after the parliamentary caucus had come to the conclusion that the party or president and/or his cabinet were under attack from the opposition benches or public opinion makers on a particular issue. In a way, the ANC parliamentary caucus is the unofficial Parliament (minus the opposition) that operates behind the scenes.

The caucus is a crucial informal structure that keeps the ANC united on contentious issues in the parliamentary process. It serves as a vital link between the political directive of the governing party in Luthuli House and the complex workings of the National Assembly and the National Council of Provinces that requires lobbying and coaxing political opponents.

It is not necessarily a rubber-stamp. Party leaders who participate in caucus meetings do not always get their way without a debate. There had been instances of quiet rebellion.

Confident and experienced MPs typically debate and in some instances challenge issues placed on the agenda even when, in the end, they would have no option but to follow the leadership-imposed party line. For example, when Mosiuoa Lekota was party chairman, he struggled to convince the caucus to give legislative effect to same-sex marriages as per the ruling of the Constitutional Court.

Another example was the failure of President Thabo Mbeki to convince outspoken MP Andrew Feinstein of his views on HIV/Aids and the arms deal saga – among the most difficult issues the ANC caucus had to deal with. He went on to write a book highlighting his dissenting views.

Despite these dissensions, members of the ANC caucus would show a face of unity when they participate in parliamentary processes. It was not until the self-evidently divisive era of Jacob Zuma, of numerous impeachment proceedings, that caucus cracks that would otherwise be hidden became clearly visible.

The ANC is still battling to deal with that legacy. Former minister Derek Hanekom is fighting off attempts to discipline him for plotting with the EFF MPs to oust Zuma.

Now, the ANC caucus will for the first time since the sixth Parliament was inaugurated, deliberate on an issue that has far-reaching implications for our constitutional democracy: the removal from office of Public Protector Busisiwe Mkhwebane. It would be unprecedented.

Also unprecedented would be the difficulty for Luthuli House to come up with a united position to give its parliamentary caucus a directive. The difficulty will arise not because findings by courts thus far of incompetence, dishonesty and disregard of taxpayers' money, among others, against Mkhwebane are to be taken lightly. But it will because two leaders of the ANC from whom the caucus would ordinarily look up to for some guidance – the secretary general Ace Magashule and President Cyril Ramaphosa – have themselves been the subject of investigation by the Public Protector.

Magashule is said to have been favoured with what has been branded a "white-wash" Estina probe. The Estina matter is not over as Mkhwebane is now doing the probe taking into account the views of those who were meant to benefit from Estina. She initially ignored them.

Ramaphosa is said to have been prejudiced with the probe of the CR17 accounts. Details of donations and email exchanges of CR17 participants have been splashed in public. Ramaphosa's review application on the matter is before the courts. Deputy President DD Mabuza and leader of government business in Parliament got a favourable ruling when Mkhwebane cleared him of any wrongdoing in relation to irregular expenditure of R5m related to Madiba's memorial service while he was premier of Mpumalanga.

If any of these members of the top six intervene in the ANC caucus, leading to the parliamentary process to remove Mkhwebane, the public would assess their intervention from the perspective of the outcomes of investigations against them.

This puts Ramaphosa in a very difficult position. Section 193 (4) of the Constitution states that the president "may" suspend the Public Protector from office at the start of parliamentary proceedings to investigate her incompetence, incapacity or misconduct.

The same section gives the president the power to remove the Public Protector after a resolution of Parliament for her removal has been adopted by the National Assembly.

Given the fact that Ramaphosa himself has crossed swords with Mkhwebane, will he be in a position to suspend her – and risk accusations of bias? Or will he not suspend her despite the gravity of allegations deserving of a suspension to avoid accusations of bias?

In the final analysis, the three most important people to persuade the ANC to take the right decision would be National Assembly Speaker Thandi Modise, ANC chief whip Pemmy Majodina and chairman of the portfolio committee on justice Bulelani Magwanishe.

These three parliamentary leaders could lead the ANC caucus on the matter. For a change, Luthuli House can take guidance from the leaders it deployed in Parliament who have not been investigated by Mkhwebane. There will also be the lingering specter of judicial review by Mkhwebane herself, her EFF supporters or her opponents in the DA over the process or outcome. What is certain, however, is that South Africa needs a public protector who is fit and proper. Soon.

- Mkhabela is a regular columnist for News24.

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