Public protector Busisiwe Mkhwebane under fire
DRUM asked experts if Public Protector Busisiwe Mkhwebane is fit for her role
IT WAS always going to be a tough act to follow. Her predecessor was a media darling, revered in South Africa and lauded across the world as a fearless crusader who went after the mightiest figures in the land. Advocate Thuli Madonsela transformed the office of the public protector – once a little-known, low-key office – into one of the most highly esteemed institutions in the country.
But her successor has yet to live up to that success. In fact, it’s fair to say Busisiwe Mkhwebane has been a colossal disappointment – and even, in some cases, a downright embarrassment.
The EFF has told her to “learn to keep quiet” to avoid further tarnishing the reputation of her office. The DA has vowed to “push ahead” in parliament with efforts to have her removed.
The Sunday Times named her their Mampara of the Week recently – this after she suggested the scope in the commission of inquiry into state capture be broadened, so it didn’t only investigate the Gupta brothers and their hold over President Jacob Zuma and his followers. She “makes a mockery of the office that was once the public’s last hope to hold the powerful accountable”, the publication said.
Mkhwebane tried to retract her comments about the state capture probe. Initially, she said she wanted the commission to stretch its investigation all the way back to 1994 and not only deal with complaints in Madonsela’s State of Capture report.
But that wasn’t what she meant, she said later. She wanted allegations to be split into two phases – the first to deal with issues investigated by Madonsela, and the second to focus on the state capture complaints brought to the public protector’s office after Madonsela’s initial report.
But ANC president Cyril Ramaphosa wasn’t having any of it. The investigation shouldn’t be “contaminated” by other issues, he said.
Another major disaster was Mkhwebane’s call last year for the mandate of the South African Reserve Bank to be changed in the Constitution.
After the bank dragged the public protector to court, she claimed she’d made a typo in her report. It was “an honest mistake”, she said.
So is she doing anything right? We asked the experts to weigh in.
IS SHE A ZUMA LACKEY?
Professor Pierre de Vos, an expert in constitutional law at the University of Cape Town, says he has no proof she’s protecting the president. “All I know is [that] her actions, since she became the public protector, suggest she doesn’t know what she’s doing and she’s completely out of her depth.
“Whether there’s an ulterior motive, I cannot say. But the fact that she cannot do her job properly and isn’t competent is clear from her actions.”
Phephelaphi Dube, director of the Centre for Constitutional Rights, says Mkhwebane has been known to make statements and take actions that can be viewed as being supportive of Zuma.
But, she says, Mkhwebane hasn’t always been on the president’s side. “For instance, she opposed him when it came to deciding who should chair the commission of inquiry into state capture due to the fact that [Zuma] has direct personal and/or financial interest in the inquiry’s outcome,” she adds.
MADONSELA VS MKHWEBANE
Should Mkhwebane be compared to her highly regarded predecessor? Professor Alan Hirsch, director of UCT’s Graduate
School of Development Policy and Practice, thinks it’s fair that Mkhwebane is constantly compared to her predecessor.
“Madonsela set a new benchmark as the public protector,” he says. “All future public protectors in South Africa will be compared to her.”
De Vos says Mkhwebane hasn’t met the minimum requirements of what is expected of her position and is nowhere near the calibre of Madonsela.
Her handling of the Reserve Bank matter and calling for a change in the Constitution was nothing short of a disaster, he adds.
“If I want to be a little unkind, I would say that if one of my students were to make such a claim in an exam, they would not pass.”
HAS SHE ACHIEVED ANYTHING SO FAR?
Dube says the criticism of Mkhwebane should be balanced against her office’s latest annual report, tabled in parliament in August 2017 – 10 months after she took office.
“The office managed to finalise an impressive 10 787 of the 16 397 cases they took on during the year that ended March 2017,” she says.
As many as 17 investigative reports were issued – although five of those are currently being challenged in courts.
“She has also worked to bring the work of her office to remote as well as rural areas in order to create awareness of the office at grassroots level,” Dube says.
One of Mkhwebane’s reports that made headlines was the investigation into allegations of misappropriation of public funds, improper conduct and maladministration by the Eastern Cape Provincial Government and other organs of state in preparing for Nelson Mandela’s funeral.
She found that the province “improperly” diverted funds amounting to R300 million meant for social infrastructure development, such as water and schools, and misused them for T-shirts and KFC.
Mkhwebane has been finalising reports involving ordinary citizens, what Madonsela called “Gogo Dlamini” cases.
For instance, she investigated allegations brought by Godfrey Maseng regarding the death of his mother, Ziphora Maseng, who died in Mafikeng Provincial Hospital in Mahikeng in June 2003.
The complainant claimed the North West Health Department failed to give his mom proper medical attention and she later died. The public protector ordered the department to pay the family R50 000.
De Vos admits the public protector does deal with “small complaints by ordinary citizens who are trying to get officials somewhere to do their jobs”.
“Public protectors always try to do that and they do it well. The problem is they’re overworked and don’t get to all the cases.”
The focus of the job should be on helping ordinary people, he adds. “If you can manage to do that, that’s a good thing.”
CAN SHE BE KICKED OUT?
Mkhwebane’s appointment had support from the ANC and the EFF. “But I don’t think anyone knew she’d be as vulnerable to error as she has been,” Hirsch says.
However, even Ramaphosa would find it difficult to get rid of her because she was appointed by parliament. “But one would hope a new head of state could encourage her to surround herself with stronger advisers.”
De Vos says there isn’t really an accountability mechanism to hold any public protector responsible for their mistakes, apart from her reports being set aside by the courts.
“Or, if she’s guilty of misconduct or incompetence, parliament can remove her,” he elaborates. “But that would be an extreme case – you really have to show the person is completely unable to do their job. Parliament would have to vote for the removal with a 60 % majority.”
CAN SHE REDEEM HERSELF?
Possibly, Hirsch says, but Mkhwebane “will need to act more carefully and take better advice”. De Vos is a firm believer that actions speak louder than words.
“The way to ensure people trust the office of the public protector is for its leader to investigate without favour or prejudice,” he says – which is exactly what Thuli Madonsela did.
Dube says Mkhwebane needs to reaffirm her neutrality and work on the public image of her office.
“She must publicise completed cases and investigations as a way of ensuring South Africans are made aware of her other work outside the important political investigations,” Dube says. SOURCES: TIMESLIVE; M&G; NEWS24; PUBLIC PROTECTOR’S OFFICE
Advocate Busisiwe Mkhwebane has had a tough time convincing citizens that she’s able to fill the shoes of her popular predecessor, advocate Thuli Madonsela.
Madonsela, seen at the opening of parliament in 2016, is chair in social justice in the law faculty of Stellenbosch University.
Mkhwebane met President Jacob Zuma for the first time in December 2016, two months after she was appointed. Zuma pledged his and government’s support to help her office fulfil its mandate.