Ralph Mathekga

Are we judging Mkhwebane fairly?

2019-06-04 08:56
Public Protector Busisiwe Mkhwebane is adamant that her office treats all complaints equally. Picture: Morapedi Mashashe

Public Protector Busisiwe Mkhwebane is adamant that her office treats all complaints equally. Picture: Morapedi Mashashe

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Whether or not we as a nation trust Busisiwe Mkhwebane, we still owe her an open, fair and transparent inquiry driven by public interest and not our narrow political preferences, writes Ralph Mathekga.

The situation unfolding around the office of the Public Protector is a major test for whether South Africans are able to strike a balance between protecting the integrity of democratic institutions on the one hand, and managing our fascination with personalities on the other hand.

Since Advocate Busisiwe Mkhwebane replaced Advocate Thuli Madonsela as the Public Protector, the reputation of the office has been under scrutiny from different stakeholders across society. Mkhwebane's appointment by Jacob Zuma was met with suspicions about whether the then embattled president was looking for an executive-minded Public Protector after Madonsela's litany of reports in which his administration was found wanting.

After a bruising battle with Madonsela about her reports, Zuma would have no appetite to appoint an affective Public Protector. Mkhwebane's appointment was therefore seen as Zuma's attempt to weaken the office by deploying to it an alleged former intelligence minion. Different political parties approved Mkhwebane's appointment with all sorts of disclaimers attached. The EFF even threatened to remove her in the future if they found out she was a spy. All of that is now water under the bridge since the EFF is playing the role of a certified mbongi (praise singers) for Mkhwebane.

Mkhwebane's record in the office thus far has not absolved her from the suspicions she was confronted with during her appointment. She has come out with some bizarre reports, two of which have been successfully challenged in court. In these instances, the court has declared her reports unlawful, unconstitutional, and so forth.

Her finding that there was no wrongdoing in the controversial Gupta-engineered Vrede dairy farm project in the Free State was declared beyond comprehension by the court. The judgment came after Mkhwebane suffered a blow in the High Court following a successful challenge against her report on the Reserve Bank and Absa matter. The Absa and Vrede farm cases showed that resolute and honest parties can successfully challenge Mkhwebane in court.

The general concern that seems to be gathering around Mkhwebane's reports thus far is that they are lacking in reason and substance. So far, they seem to have been based on some conspiracy theories, instead of rational arguments grounded in the mandate of the Public Protector. Some have criticised her reports as answering questions that have not been raised whilst not providing solid answers to the questions that have been raised. In one of the reports, Mkhwebane bizarrely even suggested a constitutional amendment to change the mandate of the Reserve Bank.

During the Madonsela era, the office of the Public Protector enjoyed a near messianic stature. Madonsela kept growing a stronger backbone as an independent-minded Public Protector caring for the vulnerable in society. But Mkhwebane is rather gathering a reputation as a Public Protector whose reports keep on getting overturned in court. She does not enjoy the benefit of the doubt as someone who is acting in the public interest. Instead, she is seen to be driven by sinister political agendas and it has been argued recently that her continued tenure as Public Protector is harming the integrity of the institution.

Too many negative judgments?

Indeed, a case can be made that Mkhwebane has had too many negative court judgments on her reports to justify it as a normal pattern of engagement with the office. Too many successful court challenges mounted against Mkhwebane's findings should indeed raise concerns about her ability to do her job properly, whichever political views she may hold as a person.

Mkhwebane was surely not hired to produce weak reports that can be ripped apart by primary school kids! She was hired to do her job diligently, based on rigorous defence of the public interest; instead of justifying reports on the basis of conspiracy theories fabricated by a faction of the ANC fighting internal battles. If we put aside ideas about how Mkhwebane feels about parties such as Absa or Pravin Gordhan, for example, her reports where those parties were implicated can be objectively assessed based on their rigour, depth and substance.

If Mkhwebane happens to enjoy listening to Deputy President David Mabuza's wisdom on ethical leadership, her report and investigations into a complaint implicating Mabuza could be objectively assessed on its rigour and substantive depth.

Doing her job in good faith?

This brings me to the difficult question as to what to do about Mkhwebane as the Public Protector. We should ask if Mkhwebane deliberately compromised the integrity of her office by issuing sub-standard reports driven by political agendas or if she is just an unlikable personality with strange political preferences yet doing her job in good faith. Can we justify her overturned reports as genuine mistakes by a Public Protector acting in good faith, or a hatchet job aimed at achieving a sinister political agenda therefore justifying her removal from office?

Removing Mkhwebane from office simply because some people don't like her would be an obsession with personality instead of focusing on the strength of institutions. If she is doing her job diligently without prejudice, she should remain in that position so long as her record shows that she is strengthening the office as an institution of democracy.

It is therefore important that Parliament hold an inquiry into Mkhwebane's position as the Public Protector. The aim of this inquiry should not be to remove her from office, but to establish if her record (of reports being overturned) is caused by genuine mistake, genuine incompetence or the pursuit of a sinister political agenda.

The inquiry should be on how Mkhwebane's quality of work relates to the mandate of the office. If the accusations are that her reports are full of conspiracies and untested reasoning, this does not justify a decision to remove her by advancing similar conspiracy reasoning. It is important to objectively establish the reasons for her sloppiness.

Whether or not we as a nation trust Mkhwebane, we still owe her an open, fair and transparent inquiry driven by public interest and not our narrow political preferences. If we fail in this regard, we will be no better than Mkhwebane; the very person we allege is blinded by political loyalty instead of reason and principle.

Only an inquiry driven by reason and principle will eventually protect the integrity of the office of the Public Protector.  

- Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa's Turn.

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Read more on:    busisi­we mkhwebane  |  public protector
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