…Only Busisiwe Mkhwebane could determine whether Ramaposa broke the law or not
A parliamentary legal opinion cites Public Protector Busisiwe Mkhwebane as the only authority who can determine whether President Cyril Ramaphosa broke the law by failing to declare his knowledge of state money allegedly stolen by his rivals to pay for their ANC presidential bid in 2017.
However, the legal advice prepared on Tuesday for the standing committee on public accounts (Scopa) states that the committee may call on Ramaphosa to provide information on the matter, and “if, indeed, public funds of any government department or public entity had been utilised for unauthorised purposes, Scopa is mandated to further investigate and consider such matter”.
The condition is that such account must be for the purpose of and pursuant to maintaining oversight of the executive and organs of state in relation to expenditure. In other words, wrote chief parliamentary legal adviser Advocate Zuraya Adhikarie, “it is not the role of Scopa to deal with any alleged ethical breaches of the president – even though these, if apparent, are closely connected to any enquiry into the matter”.The breach of the ethics code falls within the purview of the Public Protector, who is responsible for making such a determination. The focus should therefore be on what information the president has on the matter that can assist Scopa in fulfilling its oversight mandate.
Adhikarie wrote that it was not within Scopa’s mandate to consider Ramaphosa’s conduct or whether he had failed to share information with the Zondo commission, as alleged.
“Of particular interest to Scopa is whether and how the alleged unauthorised expenditure was captured in the financial statements, whether it was detected by the Auditor-General and, if so, how it was reported. If it was not detected, it must be determined whether there was any conduct that constitutes misrepresentation by any official.”
To fulfil this oversight mandate, Scopa could require further information to ascertain which government departments and/or entities may have channelled funds unlawfully for the purposes alluded to by the president in the audio clip that was recorded during a national executive committee meeting.Member of parliament, Mervyn Dirks.
“This information will assist Scopa to narrow its inquiry into the matter and call for such further evidence as may be necessary to exercise its specific oversight function. In this way, the relevant accounting officers and ministers can also be called to account and provide further clarity to enable Scopa to consider whether there has been unauthorised expenditure and, if so, whether action is being taken against any persons who may have been complicit in such conduct,” wrote Adhikarie.
This information included:
She added that Ramaphosa could be requested to provide information, including records, about any relevant issue, including the alleged misuse of public funds for the purposes of election campaigns.
- Whether there were any instructions to ministers, accounting officers or any other officials to release such funds or facilitate their release and, if so, where such instructions emanated from;
- Whether the relevant ministers or accounting officers were made aware of any unauthorised spending in the event that such instructions to channel funds were done via other officials;
- Whether there were any records of what such unauthorised funds (if applicable) may have been used for and how they were captured;
- Whether any other MPs or officials of any organ of state had further relevant information; and
- Information about contracts for goods and services, and payment thereof, for party campaigning purposes.
“Scopa may, after consideration of all the information tabled before it, determine whether any further recommendations or investigations are required (for example, referral to the Hawks for investigation, where criminal conduct is suspected on the part of any person/s or to the Public Protector in respect of a possible breach of ethical conduct),” wrote Adhikarie.
The legal opinion followed a request for advice from Scopa chairperson Mkhuleko Hlengwa on whether the committee could summons Ramaphosa to answer allegations relating to the use of public funds for certain election campaigns in the lead-up to the 2017 ANC elective conference.
Hlengwa was dealing with a request from ANC MP Mervyn Dirks that the committee summons Ramaphosa to answer allegations related to the use of public funds for party political campaigning.
The request followed a widespread leak in December of a recording of Ramaphosa’s statement during an ANC national executive committee meeting that state and public resources were used for political party campaigning and “to advance certain campaigns”. In particular, he referred to the alleged use of public money from the State Security Agency.
The Executive Members’ Ethics Act sets out the minimum ethical standards by which Cabinet members and deputy ministers must abide.The act provides a framework for the executive ethics code, which is aimed at promoting an “open, democratic and accountable government”.
The legal opinion stated that Parliament and any of its committees could summons any person to appear before it, or to produce documents as an information-gathering tool to facilitate and strengthen the execution of the mandate of Parliament, including oversight over the executive and organs of state.
On Thursday, the ANC in Parliament suspended Dirks, whose allies claim that he may launch a court challenge against the suspension. Earlier this week, ANC chief whip Pemmy Majodina instructed Dirks to withdraw the complaint, but he refused, arguing that he had done nothing against his oath of office, but had merely sought to hold Ramaphosa accountable.
In the leaked recording of the ANC meeting, Ramaphosa – who stood accused of using hundreds of millions of rands to campaign for his presidential election – declared that he knew his opponents had stolen state money from the State Security Agency to finance their campaign, but he preferred to keep silent and “fall on his sword” to shield the party’s reputation, rather than use the scandal to his political advantage.
The presidency and Ramaphosa’s ANC spokesperson in Luthuli House, Sibongile Besani, confirmed that the leaked recording was authentic, but denied that Ramaphosa was covering up information on corruption.
Besani said Ramaphosa had meant that it was “unacceptable for public money to be used for campaigns”.