‘By not admonishing MPs who attacked her, Parliament had failed in its constitutional obligation to protect the Public Protector’s office’
Public Protector Advocate Busisiwe Mkhwebane has accused National Assembly Speaker Thandi Modise of violating the Constitution by failing to protect her from an onslaught of attacks from MPs.
Mkhwebane made the allegation against Modise in a scathing 12-page letter – written earlier this month – in which she threw the rule book at the Speaker.
The chapter 9 boss took the Speaker to task for agreeing to refer the request by the DA to have her removed to the portfolio committee on justice.
Quoting rule 88 of the National Assembly rules, Mkhwebane said Modise had consistently allowed MPs to cast aspersions on her without a substantive motion.
That section of the rules is entitled Reflections upon judges and certain holders of public office.
It reads: “No member may reflect upon the competence or integrity of a judge of a superior court, the holder of a public office in a state institution supporting constitutional democracy in section 194 of the Constitution, or any the holder of any other office other than the member of the government whose removal from such office is dependent upon a decision of the House.”
Mkhwebane said that in failing to “admonish” MPs for attacking her, Parliament had failed in its constitutional obligation to protect the institution of the Public Protector.
She said Modise had a gate-keeping role to establish whether substantive motions had any merit before referring them to a portfolio committee.
In this instance, she said, the Speaker had not done so, fuelling a “narrative in the court of public opinion”, which sought to undermine the chapter 9 boss who was “constantly placed under siege by Parliament”.
Mkhwebane threatened to take Modise’s “unwillingness” to assist her to the courts to seek a declaratory order and interdict to force her to protect the office of the Public Protector.
She concluded the letter by requesting Modise to rescind the “unlawful” referral of her matter to the justice committee.
When she appeared before the justice committee last week, Mkhwebane called for MPs who had attacked her to apologise publicly.
She argued that MPs who formed part of the committee would have to recuse themselves from a disciplinary hearing into her as they had already formed an opinion about her.
The DA has consistently been calling for Parliament to begin the process of removing Mkhwebane and had questioned her understanding of the law.
At the same time they had supported her investigation into President Cyril Ramaphosa’s donation from Gavin Watson for his ANC presidency bid.
On Friday Mkhwebane announced that Ramaphosa had misled Parliament regarding the donation and, in doing so, had violated the Constitution. She recommended that prosecuting authorities investigate possible money laundering.
Last month Mkhwebane wrote to DA leader Mmusi Maimane: “It would be remiss of me not to indicate to you that in recent weeks you have accused me of having not investigated the Vrede Dairy project matter properly, thus resulting in what you call a ‘whitewash’, and that therefore a motion should be passed and debated by Parliament on my fitness to hold office.”
Maimane had, at the time, called for an unredacted report on the president given that he was the initial complainant who referred matter to the chapter 9 institution.
Maimane said he had been made aware that the report had been finalised but that Mkhwebane was not releasing it.
The Public Protector urged Maimane to familiarise himself with the processes of her office.
“I will still be around to release the report on your complaint against President Ramaphosa, which is at an advanced stage, unless you succeed in your party’s motion to have me removed from my position,” Mkhwebane said.