A task to confound her critics
Zenaide Jones
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The public has its suspicions about the public protector and not without reason; it will be up to her to assuage them
Prof Viljoen is director of the Centre for Human Rights at the University of Pretoria
THIS is the first week for advocate Busisiwe Mkhwebane, our new public protector. Parliament overwhelmingly supported her and civil society organisations, including Corruption Watch, endorsed her.
If some South Africans still view her appointment with some apprehension, it would be up to Mkhwebane to set suspicious minds at ease.
Regrettably, there does indeed seem to be some cause for caution. First, there are the unassailable facts. Mkhwebane sketched her career path, both in her CV and during the interview for the position. By her own description, her last position was that of a “spy”, at least of sorts.
She had on July 4 started working as an “analyst” with the State Security Agency (SSA). This department’s mission is “to provide critical and unique intelligence on threats to the government to advance South Africa’s national security interests in a changing global environment”.
In other words, the SSA conducts civilian intelligence operations.
Clearly, it is no crime to work for the SSA. A country needs to be safe from foreign destabilisation, “foreign agents” and such.
By ironic coincidence, it is the very SSA that last year investigated Thuli Madonsela for being a CIA operative, based on the flimsiest of evidence extracted from a bogus website.
The point is not that working for the SSA should cast any aspersions over anyone. But taking up such a position reflects a certain mindset and it’s not one proclaiming independence and boldly “speaking truth to power” or “protecting the public”.
For another, it represents a curious career trajectory. Why would someone so qualified and ambitious, on July 4, after serving two years as a “director” in the Department of Home Affairs, take on the position of an “analyst”?
Is it fair to presume that such a position is of a lower profile, more inward than outward looking?
When these questions were posed during her interview, Mkhwebane did not provide an unequivocal answer.
Asked whether taking the position of “analyst” was not a “demotion”, she said it was “not at all”, but merely work in a “specialised field”, although by her own admission she had, in her previous position, acted at the highest level – as chief director – in the department.
Her job in the SSA was “strictly professional”, she said, adding she would no longer be a “manager with subordinates”.
She took on this very different position, she continued, to “make sure we protect the constitution”, but this seems like a surprising and puzzling explanation.
Despite her protestations, the SSA position does represent a significant demotion and shift in focus.
Even if the SSA “protects the constitution”, one may think of many – more obvious – ways of doing so.
Second, do her professional qualities fit the image of the ideal public protector?
Looking at her career, there is little to show her taking a stand in favour of members of the public.
Yes, she served in various capacities, including a stint at the office of the public protector, and did her job well, but on what concrete experience of “protecting the public” and “speaking truth to power” should we base our expectations of her?
By all accounts, she is a consummate professional; by all accounts, she interviewed well; but these are not the primary yardsticks for success as public protector.
In her interview, and in other forums, the new public protector has stressed the collaborative and non-confrontational nature of the relationship between her office and the executive.
She correctly referred to the constitution and its emphasis on the role of Chapter 9 institutions to “strengthen” democracy. In an ideal world, this would be the ideal relationship.
However, it would be tantamount to turning a blind eye to our past and the fractured relationship between the outgoing public protector and the government if one described the future relationship in such unproblematic terms.
This apprehension is compounded by her intimation that there is a great need to deal with the “ordinary”, as opposed to “high-profile”, cases.
Clearly, a balance needs to be struck. Every individual, especially the powerless and marginalised, should be supported in their quest to redress administrative wrongs against them, but this should not be done at the expense of cases dealing with more systemic issues.
The reality is that the public protector does not have the capacity to deal with every case.
It is by addressing the systemic and high-profile cases that an environment conducive to diligent and people-friendly service delivery would be fostered.
Third, there is the context. South Africans know the stakes are high.
They have seen the displeasure of the president and members of the ruling party with the kinds of investigations undertaken and recommendations arrived at by Madonsela.
They are aware of an occasional “deployment of cadres”. South Africans may wonder how the appointment of a new public protector fits in to this line of thinking.
Zuma’s insistence that the new public protector should deal with the state capture report has only added to perceptions that he is at least more “comfortable” with her dealing with the matter than Madonsela.
To some extent, Zuma is burdening the new public protector with the perception of his expectation that she would give him a more sympathetic audience.
We are reminded that the appointment of the outgoing public protector and current chief justice were not, at the time of their appointment, met with great expectations – at least among sceptics.
We are reminded that they have both excelled, doing their jobs with fierce independence and integrity.
We expect no less from our new public protector and wish her all the best, but we also realise that it is not an inevitability that she, like her immediate predecessor, will stand fearless and tall as a beacon of accountability in service of the public.
The terms of the first two public protectors (advocate Selby Baqwa, 1995-2002; and advocate Lawrence Mushwana, 2002-2009) were not characterised by a culture of “speaking truth to power”.
Maybe the contexts and the opportunities presented were different and none of the three previous public protectors started his or her term amid such attention, and at such a historic moment.
The country holds its breath.