No interest in protecting the public …
Mkhwebane never pretended to be neutral — she was partisan and political from the start of her tenure as public protector
The constitutional court had difficulty certifying the Constitution back in September 1996. Newly established and led by Arthur Chaskalson, a renowned human rights lawyer, the court found the wording of the interim Constitution on the public protector woefully inadequate.
Considering the nature of the public protector’s job — investigating officials and politicians to hold them accountable for their misdeeds — the court did not think the interim Constitution offered the occupant of that office sufficient guarantees to do their job diligently and courageously.
The interim Constitution stipulated that only a simple majority was required to remove the public protector. The constitutional court disagreed and insisted on a higher threshold of a two-thirds majority.
Only once the threshold was increased did the court agree to certify the permanent Constitution. The point was to make it difficult for politicians to remove the public protector when she, or he, came after them. Knowing how difficult it would be to remove her, the protector would also be emboldened in her job.
And, so it was that none of Busisiwe Mkhwebane’s predecessors — Selby Baqwa, Lawrence Mushwana and Thuli Madonsela — had to worry about impeachment. Not that none of the political parties in parliament had achieved the requisite two-thirds or could not vote together to make up the threshold. The ANC got more than two-thirds in the 2004 election.
But, removing the public protector was hardly an issue, if at all, in parliament. A task team Kader Asmal led in 2007 to review these watchdog institutions (also known as chapter nine institutions) makes no mention of public protectors being restrained in their work by fear of removal.
Instead, Asmal’s report drew the public protector’s attention to the need to work closely with civil society and heighten the profile of the office. This was to ensure people with information about the abuse of power were aware of the public protector and could easily approach the office.
The lack of attempts to remove the previous public protectors, however, did not necessarily mean they had all done a sterling job.
Mushwana caused controversy, for instance, in 2005 when he let the ANC off the hook for receiving R11-million from private oil company Imvume.
The latter paid the ANC from funds it had received from parastatal Petrosa. The money was allegedly in exchange for the ANC using its influence to help
Imvume secure oil contracts in Iraq, which was
then under sanctions. Mushwana reasoned the transaction was between private entities and thus did not implicate the state or its funds.
Approached to review Mushwana’s report in 2007, Judge Ntsikelelo Poswa found Mushwana’s reasoning flawed. The money had come from public coffers and implicated cabinet ministers. The ANC, Poswa said in his judgment, delivered in 2009, had possibly used Imvume to launder public funds.
In concluding that the government was not involved, Mushwana was either misleading the public or simply had not bothered to investigate reports of possible corruption.
Ultimately, Mushwana was protecting the party in government. He was, after all, a party deployee. Before his appointment as public protector, Mushwana had served in the Limpopo provincial government and was deputy chair of the National
Council of Provinces. The man was undoubtedly ANC. And, in a complaint that involved his party and comrades, he chose to protect them, instead of following the fundamental demands of impartiality that came with his job.
A beneficiary of Mushwana’s abuse of office, the ANC was not about to aid any attempts to impeach him. Instead, at the expiry of his term, the party used its majority to appoint him chairperson of the South African Human Rights Commission.
Mushwana’s successor Thuli Madonsela proved to be a different kind of public protector. Formerly a card-carrying member of the ANC, Madonsela obviously shared the party’s mission and was sympathetic towards it. However, she chose a career life outside the party, declining a nomination to become a member of parliament in 1994.
She focused on academia, becoming an intellectual activist on gender, labour and the law. It was this intellectual activism that eventually earned her an appointment to the South African Law Reform Commission.
When she was appointed public protector in October 2009, it was not as a party apparatchik but as a progressive lawyer who had made a name for herself outside of the ANC. This enabled her to act independently, at times going against the big honchos in government, as we came to witness throughout her tenure. Mkhwebane is nothing like her predecessors. She never pretended to be neutral from the onset.
On her first day at the office, she apparently switched television channels from ENCA, a privately owned station, to the Gupta-owned ANN7, which was then president Jacob Zuma’s mouthpiece.
It would later emerge that Zuma had a hand in setting up the station and getting it sponsored, illegally, by state departments.
While still surprised at the change of TV channels, we heard Mkhwebane had paid Zuma a visit and soon thereafter she seemed reluctant to release Madonsela’s report, State of Capture.
Madonsela’s term expired in October 2016, before she could release the report. Zuma and Des van Rooyen had mounted a court challenge to prevent its release.
Zuma complained that Madonsela never interviewed him. Madonsela then released the recording of the interview, showing Zuma to have lied. Mkhwebane responded by laying charges against Madonsela for releasing the recordings. She argued the records were not Madonsela’s to release.
Mkhwebane was not concerned about Zuma misleading the public but was furious at Madonsela for telling the truth. It took opposition parties going to court to secure an order to release the report.
The revelations we are hearing in Mkhwebane’s impeachment process, currently underway, are not surprising. She set out to protect the band of state plunderers from the onset.
The report on the Vrede dairy farm, for instance, was a whitewash. This is the farm for which the Gupta family got financial support from Ace Magashule’s provincial government under the guise of promoting black farmers.
The farm never got off the ground but the Guptas got millions of rand. Mkhwebane effectively covered up Magashule’s role in the theft and the court threw out the report as fake.
Then, in another report, involving Absa and the South African Reserve Bank, Mkhwebane sought advice from intelligence operatives. She
was investigating a complaint that the Reserve Bank had not recovered the loan it made to Absa’s predecessor (Bankorp) between 1985 and 1991.
The loan was a bailout that was never successful and two judicial investigations concluded that it was not feasible to recover the funds. It was simply a bad loan.
Mkhwebane, nonetheless, insisted that Absa should pay back the loan. Not only that, she took it upon herself to instruct parliament to change the mandate of the Reserve Bank. The bank’s mandate was not part of the initial complaint nor did she have powers to instruct parliament to do so.
Throughout all this Mkhwebane was working with the state’s intelligence operatives, Zuma’s presidency and fringe political party Black First Land First.
She was now immersed in politics, as a henchman, which caused her to reach legally incompetent decisions and act deceptively. Predictably, the court threw out the Reserve Bankabsa report.
Reports of Mkhwebane’s previous work in intelligence and the subsequent collusion, in her role as the public protector, with the State Security Agency explain her overtly political and partisan behaviour. There’s nothing in her tenure that suggests Mkhwebane ever took her role as a lawyer seriously or that she ever cared to please the public.
It might well be that her stint at the office of the public protector was simply an intelligence-gathering operation. She was possibly there, as the State Security Agency was acting under Zuma, to protect his failing presidency.
Mcebisi Ndletyana is professor of political science at the University of Johannesburg.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the