ANALYSIS: Let’s hope what's right does matter to two-thirds of the members of the National Assembly

Public Protector, advocate Busisiwe Mkhwebane . (Felix Dlangamandla, Netwerk24)
Public Protector, advocate Busisiwe Mkhwebane . (Felix Dlangamandla, Netwerk24)

She wields constitutionally protected power to safeguard our democracy. It was not for nothing that the Constitutional Court likened the Public Protector to a biblical David who takes on the powerful Goliaths in public office, writes Mpumelelo Mkhabela 

In the next few weeks or months, the National Assembly will commence an unprecedented investigation into the fitness of Public Protector Busisiwe Mkhwebane to hold office.  

Whether or not she ultimately gets impeached, will depend on the weight the National Assembly attaches to rational judgement and/or political judgement.  

Rational judgement would require the assessment of her conduct and/competence in relation to the performance expectations outlined in law. Such an assessment would be devoid of narrow political consideration and personal preferences of MPs involved in doing the assessment.  

Whatever their political inclinations, MPs would vote with their rationality hats on. But it is impossible to neatly separate rationality from other considerations.  

MPs are themselves the outcome of a political process. They are political beings and their decisions have political implications.   

Political judgement, on the other hand, is largely influenced by the exercise of political power.

Although there is a possibility that rational judgement and political judgement can be in sync, the two often clash. For example, a majority of MPs can use their political power in the form of numbers to vote in favour of a decision that they know very well that, on rationality grounds, it should fail.  

Under such circumstances, political power expressed in the form of numbers trumps rational considerations.  

The recent congressional inquiry into the conduct of US President Donald Trump was instructive.

Adam Schiff, a Democratic Party senator and arguably the best member of a parliament in the Western world, put forward a compelling case against Trump.  

He cogently demonstrated factually how Trump violated the Constitution, betrayed American allies, undermined security agencies, allowed foreign interference in domestic elections and instigated a foreign probe into his political opponents, among other misdemeanours.  

All these, Schiff contended, were in furtherance of Trump's personal and political interests and against the national interests.

The nub of Schiff's submission came at the tail end when he answered a question he himself had posed: Did Trump have to be removed from office if the Senate found him guilty?

Did he really have to be removed?  

Schiff argued the matter boiled down to whether the Senate gave weight to what was right or wrong.

"If right doesn't matter, it doesn't matter how good the Constitution is," he said.

"It doesn't matter how brilliant the framers [of the Constitution] were. Doesn't matter how good or bad our advocacy in this trial is. Doesn't matter how well-written the oath of impartiality is. If right doesn't matter, we're lost. If the truth doesn't matter, we're lost."  

The patriotism in Schiff's passionate submission was palpable.

In the end, right did not actually matter for the Republican Senate majority who voted to keep Trump in office, without refuting the charges, let alone allowing witnesses to testify. So, the truth did not really matter.  

Raw political power of numbers did, however, matter.

Now back home to Mkhwebane.

She is obviously not Trump and does not wield the power of the man who occupies the coveted office in Washington.  

But she wields constitutionally protected power to safeguard our democracy. It was not for nothing that the Constitutional Court likened the Public Protector to a biblical David who takes on the powerful Goliaths in public office.  

This the Public Protector does not do for herself; she does it on behalf of the people guided by the Constitution.

A string of judgments, including the latest High Court ruling that set aside her report on CR17 campaign funding, have demonstrated beyond doubt Mkhwebane's incompetence.  

The common denominator in all the judgments that were reviewed and set aside was that she did not understand the law, she lacked impartiality, and disregarded facts. In the Estina dairy case, for example, she disregarded witnesses, the downtrodden victims of corruption who clothed her office with the kind of biblical description used by the Constitutional Court.  

To err is human and judges also make mistakes, she and her supporters would protest.

They are right.

But judges would also find it difficult to remain in their positions if they are found to continuously demonstrate a lack of impartiality and disregard facts as well as the Constitution to which they are accountable.

Lawyers and judges must differ on the interpretation of the law but not on the basics of what the law says.  

In the CR17 judgment, the court found Mkhwebane went to the extent of writing her own law, inserting non-existent words into the Executive Code. This the court described as "inexplicable".

When this was pointed out to her during the review application, she claimed the error was "immaterial" to her findings. This was, of course, not true because she had made a finding based on the wording she inserted. 

In another blow, the court pointed out her contradictory findings in the CR17 report. She accepted President Cyril Ramaphosa had acted in good faith when he clarified his response to Parliament with a letter to National Assembly Speaker Thandi Modise.

But when Ramaphosa suggested this should be the end of the case, she responded by saying this was preposterous.  

The court did not mince its words: "This response displays a deep-seated inability, or refusal to process facts before her in a logical and fair-minded manner. Such a response is difficult to reconcile with her constitutional obligations."   

Mkhwebane also applied the wrong law to make a finding of suspicion of money laundering. She invoked the Preventing and Combating of Corrupt Activities Act instead of the Prevention of Organised Crime Act.  

Needless to say, if you cite the wrong law, you will miss the definition of the key concept. It turned out the she did not understand (or maybe did not know at all) what the crime of money laundering is all about.  

The court strongly rebuked her for running the risk of undermining the very existence of her office.

In other words, the court was suggesting we might think we still have a David to fight for us when he has long mutated into something other than the biblical version.  

Mkhwebane's supporters will of course rally behind her because they are not interested in the facts.

But of all the things she is accused of, there is one that really stands out - her recommendations in the Bankorp/ SA Reserve Bank case that the Constitution should be amended.  

If the Public Protector can demonstrate that she does not believe in the Constitution as it stands and which established the office she occupies, there is nothing that can stand in her way to undermine it.

All the other laws that the courts have found she did not understand are themselves subordinate to the Constitution.  

With this in mind, we can paraphrase Schiff: Does Mkhwebane really have to be removed? As he would have responded: "If right doesn't matter, it doesn't matter how good the Constitution is."

Well, let us hope right does matter to two-thirds of the members of the National Assembly. 

We live in a world where facts and fiction get blurred
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