South African President Cyril Ramaphosa says beleaguered Public Protector Busisiwe Mkhwebane’s multiple alleged investigations against him cannot block him from exercising his constitutionally mandated power to suspend her – or remove her from office.
“Had this been the case the Public Protector could immunise herself against the processes in Section 194 of the Constitution [potential impeachment] by initiating investigations against organs of state or individuals that she considers to be a threat,” Ramaphosa stated in papers filed before the Western Cape High Court.
“Properly construed, the Public Protector’s real complaint is that because she has or is investigating me for certain conduct while I hold the office of president [or held the position of deputy president], I may not exercise a constitutionally given power that vests in me as president. The challenge cannot succeed in circumstances where the Public Protector cannot even establish that there is a conflict of interest.”
Mkhwebane has confirmed her office is investigating President Cyril Ramaphosa’s alleged breach of the Executive Code of Ethics.
The probe was sparked by a complaint filed by suspended ANC MP, Mervyn Dirks, over Ramaphosa’s apparent knowledge of the misuse of public funds for party campaigning prior to the ANC’s 2017 Nasrec conference that saw Ramaphosa elected party president.
In a statement on Thursday, Mkhwebane’s spokesperson, Oupa Segalwe, confirmed that “a complaint in which a member of parliament alleged a breach of the Executive Code of Ethics against the President” had reached Mkhwebane’s office on Wednesday afternoon.
The complaint was lodged in terms of the Executive Members Ethics Act 82 of 1998 (EMEA), and the applicable law compels the Public Protector to investigate an alleged breach of the code “on receipt of a complaint by the President, a member of the National Assembly, or a permanent delegate of the National Council of Provinces if the complaint is against a Cabinet member or a Deputy Minister”.
Segalwe said the investigation by the Public Protector would be completed within 30 days.
Dirks’ complaint arises from an incomplete leaked voice recording from a National Executive Committee (NEC) meeting where President Ramaphosa appears to indicate he was aware that the ANC had used public money for party campaigning purposes ahead of the 2017 Nasrec conference.
In the recording, Ramaphosa allegedly suggests the funds were channeled from the State Security Agency (SSA).
On Tuesday evening, Parliament’s Standing Committee on Public Accounts (Scopa) resolved to write to Ramaphosa requesting that he explain, within seven to 10 working days, the remarks he had made in the incomplete recording.
It also resolved to write to the SSA and the office of the Auditor-General to get clarity on the alleged misuse of public funds for ANC internal campaigns.
The January meeting was convened after Dirks wrote to Scopa chair, Mkhuleko Hlengwa, in December last year, requesting that Ramaphosa be summoned to account for his alleged statements.
Dirks was consequently suspended from the ANC and removed from his Scopa position, but was admitted to the meeting despite his suspension.
The president’s alleged knowledge about the misuse of public funds was a “serious breach of the Ethics Code”, Dirks said in the meeting, which he claimed was why he had approached the Public Protector.
This is not the first time Ramaphosa’s campaign funding has been probed by the Public Protector. In 2020, the North Gauteng High Court set aside Mkhwebane’s 2019 report on Ramaphosa’s CR17 campaign, after it found she had breached her powers and failed to correctly apply the law. Mkhwebane’s appeal against the lower court’s judgment was rejected by the Constitutional Court in July 2021.
Local media reported that Mkhwebane had found Ramaphosa had misled Parliament regarding a payment of R500,000 made by Bosasa into a Ramaphosa-linked account. Ramaphosa had said that the payment was to his son, Andile, for consulting work.
He was later informed, however, that the payment was actually a donation to his presidential campaign. He subsequently informed the Speaker of this in a letter. The Constitutional Court agreed with the high court that the president had not “wilfully” misled Parliament.