The Public Protector must now cross the Rubicon

Public Protector Busisiwe Mkhwebane is adamant that her office treats all complaints equally. Picture: Morapedi Mashashe
Public Protector Busisiwe Mkhwebane is adamant that her office treats all complaints equally. Picture: Morapedi Mashashe

The most recent developments around Public Protector Busisi­we Mkhwebane and her office are disturbing.

It seems though that something will have to give sooner than later.

It is almost impossible to understand what goes on in that office having regard to the now predictable results of the decisions, actions and statements emanating from that office and the Public Protector.

The sad part is that it is clear that the image and standing of the office is deteriorating at a fast pace and reaching irredeemable levels.

The threat to take the Speaker of the National Assembly to court for performing her duties and exercising her powers, the weird findings against the president and the absurd comments following the Constitutional Court judgement on the personal cost order against the Public Protector are probably the best indicator that very little is about to change regarding the fortunes of that office and the incumbent.

Read: Mkhwebane slams Modise for failing to protect her

One wonders which court of law can interdict an authorised person from performing her functions and exercising her powers.

It sounds so ridiculous a proposition that one wonders what this nation has done to deserve this type of national ridicule.

The basics of our constitutional order is that everyone who exercises public power stands to be held accountable and subject to the prescribed constitutional control.

To have someone whose job it is to ensure that others are held accountable missing this basic necessity is sad.

The same is to be said of the comments following the Constitutional Court judgement.

How the Public Protector having had an opportunity to persuade the court and having failed to do so can still argue that the judgement is wrong is beyond comprehension.

This is worse when a panel of judges have found that she was not after all that truthful.

The judgement goes beyond a determination of whether she should be held personally liable to making a very adverse finding on her credibility and integrity.

She should rather bow her head in shame instead of remaining defiant.

In any event, she has reached the end of the road and does not have the right to disrespect the judgements of the courts when she is screaming respect for her own findings and remedial action.

The Public Protector investigation and findings about President Cyril Ramaphosa represents another sadness.

Whilst the Public Protector correctly asserts the principle that we must vigilantly guard against another capture of our state by those who have the economic power and the financial muscle, she simply could not execute that during her investigation.

Instead, she seems to have developed a wholly dangerous thesis of how this objective is to be achieved.

She makes a dangerous proposition that those who have the economic power and the financial muscle pose a risk to our democracy.

If that proposition were to hold true, any form of monetary donation regardless of who makes it and for whatever purpose poses a distinct risk to our constitutional democracy.

That would simply be a nonsensical proposition.

The Public Protector report lends itself to many interpretations and may in certain instances simply be incomprehensible or give an interpretation which may not just be sustainable in law.

The president and his team may have dropped the ball by cooperating with the investigation in so far as the campaign money is concerned if the president always held the view that it was outside of the jurisdiction of the Public Protector.

They ought to have interdicted her if they strongly believed in the absence of jurisdiction.

The central theme of the finding is that the president was the beneficiary of the campaign donations.

This, it seems, is based on the premise that the president was a candidate for election.

In essence his candidacy or election is accordingly about him and him alone. This may just defy logic. Ramaphosa was part of a group which contested the conference.

He may have been the candidate for the top position hence the campaign would have him as its face.

But to suggest that the campaign was about him and him alone becomes a misnomer.

The flawed proposition that the campaign was about Ramaphosa introduces another incomprehensible proposition that he was the sole beneficiary of the campaign donation.

It does not seem that there is a basic understanding that a type of campaign of this nature involves more than the candidate.

In fact the candidate is a non-factor. The real power lies with the campaign itself.

The organisation and preparation involves hundreds if not thousands of people.

Logically, it is these people who use the resources of the campaign.

If money is spent on travel and accommodation, it is those whom use the travel and accommodation who benefit and not the president.

The idea that power and influence only lies in those with monetary power is rather foolhardy and only the ignorant can buy that kind of unintelligible proposition.

It borders on suggestion and innuendo and has no real factual basis.

As we go through the challenges posed by the troubles of our past, paranoia and obsession must not be the tool to judge everyone.

Like ordinary people who would take action within their own means and ability to influence the type of change needed, the rich who are equal citizens bar for their financial power have an interest in the future of their country.

There cannot be any doubt that the rich and poor alike wanted some type of change from what we had as leadership.

The delegates at the 2017 ANC elective conference were not the rich type who could donate the large sums of money referred to in the Public Protector report but were able to influence decisively the type of leadership they sought for the country.

Their power lay in their votes derived from mandates from their branches. They differ with the millionaire donors only in their method of expressing the change they desired.

Money laundering involves the concealment of the origins of illegally obtained money.

In this case, people donate their legitimately gained money and give such money to a legitimate cause of a political campaign only to learn that they are accused of being involved in money laundering or suspected of seeking to capture the state.

The money forming the subject of the Public Protector report must have firstly been illegally obtained to found a suggestion of money laundering.

There is no law in this country which prohibits the sourcing of donations for party activities and to disburse that money for that purpose.

On the version of the Public Protector, the sources of the funds have been established and where it was transferred to has also been established.

The investigation does not appear to have established even a face value basis to suggest any form of illegality.

It appears that an uniformed opinion and suspicion is the basis of a conclusion of possible money laundering.

The same must be said of the supposed “sort of sponsorship” referred to in the report.

It appears that ignorance and personal opinion may have played a greater role in the type of conclusion reached on this matter.

The report recognises the fact of the existence of the CR17 campaign.

It is not stated that the campaign and the president was but one and the same thing.

Whilst the campaign may have not been a legal entity with separate legal personality, nothing in the report refutes the assertion that the president and the campaign were not the same thing.

The fact of the president’s involvement to whatever extent cannot be a basis to conclude that he was himself the campaign.

It is even more ridiculous to suggest that everything was done for him and for his benefit.

Basic facts and reality points to the fact that the actual beneficiaries were those in respect of whom, the money was spent for, for various things.

Surely, the president did not eat all the food provided or the accommodation or whatever was provided to those who participated in the campaign.

To suggest that the president was the sole beneficiary borders on the ridiculous.

The weird reasoning that at the least there should have been a vetting of the donors to avoid the compromised ones donating is one harrowing ridiculous proposition.

Do we keep a register of compromised donors in this country? Even Gavin Watson has not been found guilty of anything.

All we know for now are the allegations of malfeasance which still stand to be tested in a proper forum.

To simply stereotype people based on personal opinion and not a factual or legal basis is rather dangerous.

It is true that the president ought not to have replied to the question if he was not sure of the facts.

The fact that the president immediately upon the realisation of his error sought to correct same cannot be a fact one can ignore this lightly.

The fact that he acted in the manner that the Public Protector would not have does not make the actions of the president wrong.

The Constitution does not by any means demand of a perfect flawless president.

The Constitution expects a human being who is alive to the values and principles underpinning our constitutional democracy.

The premium the Chief Justice defined as being placed on the president as Head of State, and which the Public Protector seeks to rely on is not without context.

Not even the Chief Justice is immune from committing an error. After all he is human.

In essence the president was expected to keep quiet when he realised that he made an error.

If he did that, he would surely be a dishonest president with low morals and a cheap pride.

Mannya is an advocate and writer

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