Mkhwebane's daring experiment

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Pravin Gordhan. Photo: Felix Dlangamandla
Pravin Gordhan. Photo: Felix Dlangamandla

Accusations that the president is failing to uphold the supreme law of the land delegitimises him because he derives his authority from the Constitution. It should not be made lightly, writes Mpumelelo Mkhabela.

Busisiwe Mkhwebane is on a daring experiment that could backfire badly. She is testing the powers vested in the office of the Public Protector against those that are within the realm of the head of the executive.

The reasons for her approach are not yet clear although there is public speculation about her dabbling in the factional politics of the governing party and her attempt to divide Parliament in order to survive impeachment.

For her adventure, she is using her adverse finding against Pravin Gordhan's approval of a pension payout to former SARS deputy commissioner Ivan Pillay. She has recommended among other things that the president discipline Gordhan and submit a report on the steps taken against the public enterprises minister.

Whether or not her findings are correct in fact and law, the High Court is yet to decide after Gordhan, Pillay and former SARS commissioner Oupa Magashula took the report on review on multiple grounds. President Cyril Ramaphosa informed Mkhwebane of the pending review within the specified period and of his decision not to take steps against Gordhan pending the review application.

Mkhwebane believes her recommendations are binding and should be enforced. She has said the failure of the president to discipline Gordhan – regardless of the pending review application on multiple grounds – means the president has failed to uphold the Constitution.

She has not said which aspect of the Constitution the president has failed to uphold. She is probably making a wrong comparison with the Nkandla judgment. There are huge differences. In the Nkandla case, the president was a direct beneficiary of the wrongdoing and he chose to ignore the Public Protector's findings, dismissing them as mere recommendations.

Ramaphosa has not dismissed Mkhwebane's findings. Nor has he ignored them. He informed her of the pending review and that he will be guided by its outcome. Nobody knows what the outcome would be. It might be far worse than Mkhwebane's findings. In which case the president will have no option but to fire Gordhan. Or he could be exonerated. It makes sense to wait.

Waiting for the outcome of the review process was not enough though. The president had to write to Mkhwebane to explain. In Mkhwebane's view the president has taken Gordhan's side.

Let's turn to the nub of the daring experiment she has embarked upon. The accusation against the president of failing to uphold the Constitution, coming from the head of an institution whose task it is to safeguard constitutional democracy, is very serious indeed. Especially when directed at the head of the executive who was sworn in to uphold the Constitution.

So severe is this accusation that if the president really wanted to take Mkhwebane on, he could challenge her to seek a declaratory order from the Constitutional Court to the effect that he has failed to uphold the Constitution. Failure by the president to uphold the Constitution should not be taken lightly.

When the accusations of this nature are clothed with the authority of an office no less than that of the Public Protector, we should all be concerned. We cannot afford to have another president who fails to uphold the Constitution.

The Constitutional Court is the only institution with powers to make a definitive finding on whether the president or any organ of state has failed in his duty to uphold the Constitution. Mkhwebane should make the application to the Constitutional Court.

If she is not prepared to approach the Constitutional Court to seek a declaratory order, it means her remarks were made in vain and without due consideration of their impact and they would constitute an abuse of power. She should, accordingly, withdraw.

Accusations that the president is failing to uphold the supreme law of the land necessarily delegitimises him because he derives his authority from the Constitution. The accusation should not be made lightly, not least by a head of an organ of state.

Mkhwebane is lucky that Ramaphosa seems to be surrounded by very gentle doves of advisors who don't seem to be willing to engage in battle. One wonders what could have happened had the president and his advisors adopted a hawkish legal approach instead of the gentle, long game that some observers see as a sign of weakness.

Mkhwebane derives her authority from the Constitution. It is ironic that she seeks to enforce "constitutional" behaviour on the president when in fact she doesn't believe in the Constitution. She even went to the extent of rewriting it and instructed Parliament to give effect to her re-written version. She had no regard for the fact that a constitutional amendment requires consultation of the citizens of the republic.

The Constitutional Court is yet to rule on Mkhwebane's estrangement (worse than a violation) towards the Constitution in relation to the powers of the Reserve Bank.

Kudos to Reserve Bank Governor Lesetja Kganyago for doing the right thing, which was to approach the Constitutional Court to make a ruling on Mkhwebane's conduct.

Mkhwebane should learn from constitutionalists like Kganyago that when you strongly believe an organ of state or a member of an organ of state has violated the Constitution, you must approach the Constitutional Court for recourse. Or stop making the claim.

- Mkhabela is a regular columnist for News24.

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