Mpumelelo Mkhabela

South Africa no longer has a public protector

2019-06-13 09:00
Advocate Busisiwe Mkhwebane. Photo: Daily Sun

Advocate Busisiwe Mkhwebane. Photo: Daily Sun (daily sun)

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For as long as Busisiwe Mkhwebane pretends to be the Public Protector, the office is seriously undermined and we are denied the opportunity of a competent incumbent who is prepared to pledge practical fidelity to the Constitution, writes Mpumelelo Mkhabela.

Busisiwe Mkhwebane inadvertently resigned as Public Protector of South Africa by failing to subject herself to the supremacy of the Constitution in 2017. The Public Protector's office has been demeaned because the incumbent lacks moral capital in the eyes of the public.

Mkhwebane disclaimed the Constitution in her report on the so-called SA Reserve Bank/Bankorp "lifeboat" matter. What stood out in her report was that Mkhwebane did not recognise the supremacy of the Constitution, which was why she recommended that Parliament should change it.

The fact that Parliament has kept her in office without probing her competence underestimates the damage of having a Public Protector who would rather change the Constitution than abide by it. She is obliged to abide by it and her remedial action MUST be anchored in the Constitution, not against it.

Former speaker Baleka Mbete correctly pointed out in her High Court submission that the Public Protector is a creature of the Constitution and should operate within and not above it. Mkhwebane opted to operate above it – which should have immediately triggered alarm bells about her incompetence.

She even prescribed the wording of the constitutional amendment in her remedial action. It was almost as if the provisions of the Constitution were an offence that needed to be remedied. In her remedial action, based on the assumption that money was advanced to the distressed Bankorp (bought by Absa) she recommended an amendment to the reserve bank's constitutional mandate.

The new mandate, according to Mkhwebane, should exclude protecting the currency of the republic. Instead, there should be a new role: ensuring that the socio-economic wellbeing of citizens was protected. She recommended changes to the reserve bank's reporting relationship with other arms of the state, namely Parliament and the executive. Never before has a head of a Chapter 9 institution gone so rogue as to cast doubt on the intelligence of the drafters of the Constitution.  

In deciding on monetary policy, according to Mkhwebane, the reserve bank must not consult with the minister of finance, as the law currently prescribes. Rather, it must consult with Parliament. Recommending a change to the Constitution should have been the end of Mkhwebane's career as a Public Protector.

For as long as she pretends to be the Public Protector of our republic, the office is seriously undermined and we are denied the opportunity of a competent incumbent who is prepared to pledge practical fidelity to the Constitution. Her reports on key issues will be routinely reviewed and set aside.

Mkhwebane complains about being called names. Well, her predecessor Thuli Madonsela was also insulted and she still endures demeaning remarks from time to time. It's wrong to hurl insults at anyone. Fortunately for Madonsela, many of her detractors had their egos smashed with humble pies they had to swallow.

The difference between Mkhwebane and Madonsela is that the latter was armed with a spear and a shield in one: the Constitution. Whatever remedial action she took, right or wrong, she justified them by leaning, as she ought to, on the supreme law from which she derived her powers. Mkhwebane, on the other hand, has neither spear nor shield to fight any battles or fend off any criticism. She has brought the office into untold disrepute.

Retrenched from the constitutional trajectory

Once she sought to change the Constitution, she retrenched herself from the constitutional trajectory. Even the Constitutional Court, the highest authority on all constitutional matters in our republic, has never sought to change the Constitution. And it is not within its powers to do so.

The first and the last time it was given power to do so was when the Constitution had to be certified in 1996. That process had been agreed to by the drafters of the Constitution to ascertain whether the draft complied with the 34 principles agreed to during the multiparty transitional negotiations.

Mkhwebane should spend some time reading Constitutional Court judgments. She will find a consistent theme in how our jurisprudence is framed: everything is subservient to the Constitution. Even when judges differ, it's all about which argument best fulfills the constitutional injunctions. It's not about how wrong the Constitution the judges think it is. In fact, such line of thinking has never arisen.

So, who is Mkhwebane to change the Constitution? With Parliament having abrogated its duty, it is now left to the Constitutional Court to resolve this question and further explain what the consequences should be. The reserve bank wants the Constitutional Court to declare that she abused her powers and to confirm that she must pay part of the legal costs from her own pocket. It's a mild request. The proper way to put it would have been that the court ought to declare that Mkhwebane disclaimed the Constitution and thus inadvertently resigned from the position of the Public Protector.

During the first High Court review application brought by the reserve bank to set aside Mkhwebane's irrational remedial action, she could not explain why she had expanded the scope of her investigation between the time she wrote a preliminary report, which made no findings about the constitutional amendments, and the time of the final report which contained them.

She arrogated unto herself powers she doesn't have and which had nothing to do with the complaint before her. She said she looked into the reform of the republic's monetary system in order to realise the government's commitment in improving the socio-economic inequalities in society and to solicit amendment to the Constitution in respect of the reserve bank to create inclusive economic benefits to the people of the republic. In his heydays as a fiery leader, Mangosuthu Buthelezi would have responded: "It's gobbledygook!"

If not the Constitution, what else matters?

Logically, Judge J Murphy said Mkhwebane applied "superficial reasoning". The judge was also concerned that she was "impervious" to criticism, or otherwise "disinclined" to address criticism. The judge might as well have added: she was impervious to the Constitution and was disinclined to follow it. I mean, if you can't subscribe to the Constitution, what else matters?

This finding was as prescient as it was apt. Since then, Mkhwebane has continuously shown "imperviousness". She offered what one suspects might be the reason why she is impervious: she is answerable only to God. She doesn't believe that she is failing. And to the extent she is, only God can determine that, not mere mortals who drafted the Constitution to manage our affairs here on Earth.

Having refused to accept the supremacy of the Constitution, and instead wanting to change it, her comment about God reveals it all. Her higher authority from which she sources her power is not the Constitution, but God. She had to invoke God because she knew that God, for those who adhere to various faiths, is not within the realm of earthly criticism.

Unfortunately for Mkhwebane, the role of the Public Protector falls squarely within the bounds of human rationality here on Earth. Which is why she can be told, as the courts have done – from the reserve bank/Bankorp matter to her Estina dairy bungled probe – that her reports were irrational.

- Mkhabela is a regular columnist for News24.

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Read more on:    sarb  |  busisi­we mkhwebane  |  public protector  |  constitutional court


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