“He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”
These words, describing the role of the president, formed part of a memorable judgment by the Constitutional Court: the judgment by chief justice Mogoeng Mogoeng on the powers of the public protector after constitutional delinquent Jacob Zuma failed to implement Thuli Madonsela's recommendations on the taxpayer-sponsored upgrades to his private residence at Nkandla.
Dodgy public protector Busisiwe Mkhwebane relies on this judgment to justify her conduct.
But ironically, Mogoeng’s words can also be used to outline why the ANC should think twice before blocking a process to remove her, based purely on factional considerations.
While Mogoeng’s words on the role of the president will echo into future administrations, his comments on the role of parliament were equally profound.
“Similarly, the National Assembly, and by extension parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all our people,” he said. “It is the watchdog of state resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people. It also bears the responsibility to play an oversight role over the executive and state organs and ensure that constitutional and statutory obligations are properly executed.”
It is hard to see how the ANC can justify not setting up a committee to inquire into Mkhwebane’s fitness, particularly after an independent panel — including former Constitutional Court justice Bess Nkabinde — found prima facie evidence that she was incompetent and worse, prima facie evidence of misconduct.
In effect, ANC secretary-general Ace Magashule jumped the gun in more ways than one when dishing out instructions to MPs to oppose the process to remove Mkhwebane, as reported in the Sunday Times last week.
Magasule has already been called out by members of his own party for issuing the orders before the ANC’s national executive committee could make a call on the matter. But if he has his way, he could open parliament to more damaging litigation and censure from the courts.
Magashule told the newspaper that the ANC would not be “divided” by the opposition and agree with an “enemy”-sponsored motion, referring to the DA, which had set the wheels in motion on Mkhwebane’s potential removal.
His comments reveal his ignorance of the role parliament is meant to play in SA’s democracy.
An independent panel damned Mk hw e b a ne’s conduct: how could parliamentarians justify doing nothing?
It is clear that the ANC caucus is divided.
Transport minister Fikile Mbalula, to his credit, is vocal on Mkhwebane, calling her a “hired gun” for a faction. And, despite her hauling him to court over the matter, Mbalula is unmoved. In a statement on Tuesday, Mbalula said he would prove in court that she is indeed a “hired gun”.
While the decision the ANC caucus takes will speak volumes about the balance of power between factions in the party, it will reveal whether the party is indeed committed to SA’s constitutional democracy.
A vote against the setting up of a committee, even in the face of the damning report, shows that the ANC is no longer committed to the Constitution and the role it assigns to parliament.
Anyway, such a vote does not mean Mkhwebane is safe. DA leader John Steenhuisen told the FM the party would decide on its next step after the vote next week, but added: “Parliament must be mindful that its decisions can be taken on review if it acts unreasonably and irrationally.
Mkhwebane may be counting on her alleged ANC handlers to protect her — but her fate could be taken out of their hands, if they renege on their constitutional duty as parliamentarians.
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