OPINION
Suspend and make the Public Protector accountable
Paul Hoffman |
29 April 2022
Paul Hoffman says there may be ample proof that the music must be confronted at once
Suspend and make the Public Protector accountable
29 April 2022
Cape Town, 29 April 2022: Anti-Corruption watchdog organisation, Accountability Now, has written to President Cyril Ramaphosa, demanding the suspension of Public Prosecutor, Busiswe Mkhwebane.
The president is contemplating suspending the Public Protector, who faces removing from workplace proceedings within the National Assembly. According to the Public Protector she behaves accountably and the president is just too conflicted to droop her resulting from pending investigations of him by her.
Paul Hoffman, SC, Director, Accountability Now, wrote to the Public Protector in April 2022*, difficult her to behave accountably by answering questions put to her in January 2017, questions which stay unanswered. The Public Protector didn’t reply to Accountability Now.
The matter has been escalated to the president who has been requested to droop the Public Protector, or, if there’s a threat of a battle of curiosity, to get the Deputy President to contemplate the matter of her suspension. The related correspondence is connected to this media launch.
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The presidency has acknowledged receipt of the e-mail addressed to him*, neither the Public Protector nor the Justice Portfolio Committee have responded in any respect to the emails addressed to them.
Mkhwebane must “own up” and face the implications
Public Protector Busiswe Mkhwebane has taken to taking pictures herself in each ft. Her criticism to the Judicial Service Commission relating to the strongly worded judgment of nearly all of the Constitutional Court in opposition to her, penned by retired Justice Chris Jafta, is so vast of the mark, misconceived and inappropriate that it could actually greatest be thought to be a stratagem in a scheme of delaying techniques reasonably than as a critical criticism.
Her litigation to keep at bay or delay the lengthy overdue proceedings for her removing from workplace offends the fundamental tenets of the rule of legislation. Finality in litigation must be achieved when the best court docket within the land has dominated on a matter. While a tenuous procedural proper to assert rescission of the ultimate ruling of that court docket exists, it ought not, within the public curiosity, maintain up the proceedings required by the structure. The National Assembly has an obligation to behave diligently and at once when any Public Protector goes rogue. There is ample proof that the music must be confronted at once and that dilatory skirmishing shouldn’t be countenanced by the courts.
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It is value noting that as way back as January 2017 Accountability Now requested the justice portfolio committee to get solutions to 13 questions posed to the then newly appointed Public Protector, solutions to which might reveal her competence, probity, integrity, and health for workplace. As her oversight physique, the committee is empowered to actual accountability. To date it has not executed so regardless that the Public Protector admits that she is accountable to parliament. It just isn’t too late to ask her to reply the questions she has been ducking. Her solutions are sure to be revealing.
Below is the letter Accountability Now wrote the Public Protector, Busiswe Mkhwebane:
“Dear Advocate,
In an interview which you gave to eNCA on Monday 4 April 2022 you contended that you’re not pursuing authorized motion regarding your removing from workplace to keep away from accountability. You additionally denied that you’re adopting what is named a “ Stalingrad strategy” to stall your much-delayed impeachment course of within the National Assembly. You indicated through the interview that your report in our Ciex criticism to the Office of the Public Protector is the rationale on your being “targeted”.
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May we respectfully remind you that you simply refused to account to us, as complainant within the Ciex matter, as way back as January 2017, and haven’t executed so since. Our Ciex criticism was in opposition to the State Security Agency for its wasteful expenditure on the contract it concluded with Ciex, it was not a criticism in opposition to Bankorp or the Reserve Bank.
For causes greatest identified to you, our criticism was construed by you as one entitling you to make uncommon and uncalled for findings regarding Bankorp and to direct parliament to amend the Constitution to change the function of the Reserve Bank in our constitutional dispensation. Those findings have been very correctly put aside by the High Court on evaluate and your attraction in opposition to the evaluate findings was a dismal failure.
The Constitutional Court discovered that you simply had lied on oath within the affidavits you filed within the matter. You are at present stalling the perjury case in opposition to you, which is predicated on the judgment of the Constitutional Court, a prosecution which the National Director of Public Prosecutions regards as one with cheap prospects of success, by reviewing her resolution to proceed to prosecute you for perjury.
You could refresh your reminiscence of your conduct within the investigation and reporting on our Ciex criticism by exploring this hyperlink. Your angle then, as seems out of your e mail to us of 14 January 2017, was that you weren’t ready to analyze your self and that you simply have been solely accountable to the National Assembly, an accounting which, to the most effective of our information, has but to happen greater than 5 years later. We submit that you’re accountable to those that file complaints in your workplace in addition to to the National Assembly, your oversight physique.
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We place on document that we’ve but to obtain a response to the 13 questions we posed to you in our e mail to you dated 13 January 2017 and have by no means acquired your provisional or last report within the matter from you. You haven’t accounted to the National Assembly on the matter in any manner, form, or kind so far as we’re conscious. We renewed our request to the Justice Portfolio Committee after the 2019 basic elections, however it has not responded to us at any stage.
We counsel, with respect, that should you want to be accountable, as it’s best to, given the provisions of part 1 (d) of the Constitution, then the suitable place at which to start out is by answering all 13 questions now. We apprehend that you haven’t executed so as a result of any replies will influence negatively in your health for the excessive workplace you maintain.
Should we not hear from you in response to this e mail by midday on Friday 8 April 2022, we will take such additional steps as we could also be suggested, together with making this e mail and your response, if any, accessible to the media.
The Secretary of the Justice Portfolio Committee is copied on this e mail for the knowledge of the committee.
Yours in accountability,
Paul Hoffman SC
Director
Institute for Accountability in Southern Africa
Campaigning as Accountability Now”
Below is the letter Accountability Now wrote to President Cyril Ramaphosa:
“Dear Mr President,
We deal with you in relation to the provisions of part 194(3) of the Constitution by way of which you’ll droop the Public Protector. We perceive from media experiences that you’re contemplating doing so.
We request that our e mail to the Public Protector (copied to the Justice Portfolio Committee within the National Assembly) and forwarded beneath be taken under consideration when you think about the representations made to you by the Public Protector regarding her suspension. Neither the Public Protector nor Parliament has responded to our e mail forwarded beneath. We haven’t heard from the Public Protector or the JPC since 2017 At the very least, the Public Protector must be placed on phrases by you to reply the questions we’ve raised as they’re clearly related to her suspension in that her integrity and competence are put in difficulty.
As regards the allegation by the Public Protector that you’re too conflicted to droop her, we respectfully draw consideration to the provisions of sections 96(2)(b) and 90 (1) of the Constitution. Should there be “the risk of a conflict” ( no precise battle want come up as was determined by the Concourt within the Nkandla matter ) then you’re “unable to fulfil” the obligation to droop and the Deputy President can act in your house. If there isn’t any such threat you’re constitutionally empowered to droop, which we urge you to do.
In the pursuits of governance that’s open, accountable, and responsive we will make this communication accessible to the media.
Yours in accountability,
Paul Hoffman SC
By Paul Hoffman SC, Director, Institute for Accountability in Southern Africa, Campaigning as Accountability Now
