President Cyril Ramaphosa stands bold by his decision to suspend Public Protector Busisiwe Mkhwebane.
Mkhwebane was suspended with immediate effect last week, Thursday, 9June pending the outcome of an impeachment process in Parliament. Her suspension came after a day she announced that her office is investigating allegations against the president levelled against him by the former spy boss, Arthur Fraser.
Bususiwe Mkhwebane threatened Ramaphosa to evoke her suspension
The suspended Public Protector threatened to take Ramaphosa to court if he did not reinstate the suspension by end of business day. On Monday 13 June, Mkhwebane wrote to the president a bold-worded letter. Mkhwebane penned down that the president’s decision to suspend her was “illegal and irration”
As you clearly believe in respect of calls for you to step aside due to the much more serious allegations of criminal conduct leveled against you, in respect of which there is seemingly more than prima facie evidence, the availability of persons to whom the work of the office of the president can be delegated is not sufficient reason for suspending a person or forcing them to step aside from their current responsibilities
wrote Mkhwebane
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The suspended public protector said that a section of the constitution restrains the president from being the suspending authority in her matter due to a conflict of interest. She further wrote that Ramaphosa’s view that he did not have a conflict of interest was irrelevant.
Your subjective views are, therefore, completely irrelevant, I reject the speculative ‘reason’ that relates to the Public Protector purportedly ‘immunising’ herself or himself by initiating investigations against individuals she considers a threat to her
President Cyril Ramaphosa stands firm on his decision
In a letter President Cyril Ramaphosa sent in reply to suspended Puplic Protector Busisiwe Khwebane, he said he stand by his decision and it remain valid and binding.
I will not accede to your demand to reverse my decision to suspend you. I note in this regard your intention to refer the matter to an appropriate court to protect your constitutional rights on account of my allegedly unlawful conduct in suspending you.
wrote Ramaphosa.
You had sought to interdict me from exercising my constitutional power to suspend you on two occasions. You failed in both instances
In his firm worded letter, Ramaphosa said he reiterate his view that the mere existence of a pending investigation does not create conflict of interest.
I reiterate my view that the mere existence of a pending investigation does not, in and of itself, create a conflict of interest
Legal expert Mboweni and Partners Inc break down on the matter
In terms of Section 183 of the Constitution of the Republic of South Africa, The Public Protector is appointed for a non-renewable period of seven years. Section 182 outlines all the functions of the Public Protector which includes, inter alia the power, as regulated by national legislation to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.
Section 2A (7) of the Public Protector Act states that whenever the public protector is, for any reason unable to perform the functions of his or her office, or while the appointment of a person to the office of public protector is pending, the deputy public protector shall perform such functions.
President Ramaphosa and advocate Mkhwebane are both obligated to act in the best interest of the country, in compliance with the Constitution and mindful of the need to protect all constitutional institutions. The president’s decision to suspend advocate Mkhwebane is said to be the best manner to fulfil these obligations.
Section 194 states that The President—
(a) may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and
(b) must remove a person from office upon adoption by the Assembly of the resolution calling for that person’s removal.
President Cyril Ramaphosa has, in accordance with section 194 (3)(a) of the Constitution of the Republic of South Africa, decided to suspend Advocate Busisiwe Mkhwebane from the office of the Public Protector effective 9 June 2022.
Section 194(3) (a) of the Constitution provides that the President may suspend the Public Protector (or any member of a Chapter 9 institution) “at any time after the start of proceedings by a committee of the National Assembly for [their] removal”.
Advocate Mkhwebane will remain suspended until the section 194 process in the National Assembly has been completed.