Verdict on new public protector
Protector or pawn? Experts give their verdict on Busisiwe Mkhwebane
IT WAS always going to be tough act to follow. Her predecessor was a media darling, revered in South Africa and lauded across the world for being a fearless crusader who went after the mightiest figures in the land. Thuli Madonsela transformed the office of the public protector – once a littleknown, low-key department – into one of the most highly esteemed institutions in the country.
But the advocate’s 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 ( fool) of the week recently – this after she suggested the scope of the commission of inquiry into state capture be broadened so it didn’t investigate only 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 newspaper 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 deal only 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 state capture complaints brought to the public protector’s office after Madonsela’s initial report.
ANC president Cyril Ramaphosa wasn’t having any of it. The investigation shouldn’t be contaminated by other issues, he said.
Another disaster was Mkhwebane’s call last year for the mandate of the South African Reserve Bank to be changed in the Constitution. When the bank dragged her 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 experts to assess her performance.
IS SHE A ZUMA LACKEY?
Professor Pierre de Vos, an expert in constitutional law at the University of Cape Town (UCT), says he has no proof she’s protecting the president. “All I know is 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 can’t say. But the fact that she can’t do her job properly and that she isn’t competent is clear from her actions.”
Phephelaphi Dube, director of the Centre for Constitutional Rights (CFCR), says Mkhwebane has been known to make statements and take action in ways that can be viewed as being supportive of Zuma. But, she says, Mkhwebane hasn’t always been on the president’s side.
“For instance, when she opposed him when it came to deciding who should chair the commission of inquiry into state capture due to the fact that he has direct personal and/or financial interest in the inquiry’s outcome,” she adds.
MADONSELA VS MKHWEBANE
Should Mkhwebane be compared with 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 with her predecessor. “Madonsela set a new benchmark as the public protector,” he says. “All future public protectors in South Africa will be compared with her.”
De Vos says Mkhwebane hasn’t met the minimum requirement of what is expected of her position and is nowhere near the calibre of someone like 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’d say if one of my students were to make such a claim in an exam, they wouldn’t pass.”
HAS SHE ACHIEVED ANYTHING SO FAR?
Criticism of Mkhwebane should be balanced against her office’s latest annual report, tabled in parliament in August – 10 months after she took office, Dube says. “The office managed to finalise an impressive 10 787 of the 16 397 cases they took on during the year that ended in March 2017,” she says.
As many as 17 investigative reports were issued – although five of those are 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 headline-making reports 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 the province improperly diverted funds amounting to R300 million that was meant for social infrastructure development such as water and schools, and misused the money for T-shirts and fast food.
Mkhwebane has been finalising reports in her office involving ordinary citizens – what Madonsela used to call the “Gogo Dlamini” cases.
She investigated allegations brought by Godfrey Maseng regarding the death of his mother 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 says the public protector does deal with “small complaints by ordinary citizens who are trying to get officials somewhere to do their job”.
“Public protectors always try to do that, and they do that 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. “And if you can manage to do that, that’s a good thing.”
CAN SHE BE KICKED OUT?
Mkhwebane’s appointment received support from the ANC and the EFF. “But I don’t think anyone knew she’d be as vulnerable to error as she’s 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, then 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. And parliament would have to vote for the removal with a 60% majority.”
CAN SHE REDEEM HERSELF?
It’s possible, Hirsch says, but Mkhwebane “will need to act more carefully and take better advice. Failing that, we’ll have to wait for the next public protector in five years’ time.”
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.” And that’s exactly what Madonsela did.
Dube says Mkhwebane needs to reaffirm her neutrality. “One such opportunity is in the upcoming state of capture inquiry,” she says.
She also needs to 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.”