Business Day

Protector’s abuse of power

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Seldom has an individual been so poorly suited or inappropri­ate for high office as Public Protector Busisiwe Mkhwebane. If there is one thing we learnt from the Nkandla scandal it is that the public protector’s office is enormously powerful. As the rulings of the public protector can be overturned only by a court, she in effect has the standing of a judge.

Mkhwebane’s short tenure has been filled with controvers­y, as well as more than enough of two of the three elements the Constituti­on requires to remove her: misconduct and incompeten­ce. Out of 50 reports she has published since she took over, 10 face or have faced judicial review.

The latest one — her astonishin­g ruling that a tweet by Western Cape Premier Helen Zille, in which Zille stated that colonialis­m was not all bad, constitute­d a violation of her constituti­onal duty — would be funny if there weren’t dozens of violations of the Constituti­on that would have been more worthy of her attention.

The other instances of her misconduct are more serious and are nothing less than an abuse of power.

Soon after taking office, in a process that was clearly politicall­y driven, Mkhwebane engineered a specific outcome of the Bankorp investigat­ion, which had already largely been completed before her time. It focused on the apartheid-era bail-out of Bankorp, and Mkhwebane found that the Reserve Bank had behaved illegally in bailing out the troubled bank.

She also found that Absa, the entity that had bought Bankorp (along with its debt) back in the day, had illegally benefited and should pay back the money.

The remedial action she suggested was that Parliament review the independen­ce of the Reserve Bank as enshrined in the Constituti­on. It so happened that at the time this call was popular among a radical grouping aligned to then president Jacob Zuma, which was set on underminin­g the invaluable institutio­ns that govern the economy.

The put-down by the high court was punishing. As well as being hit with an order to pay personal costs, the court found “that she did not conduct herself in a manner which should be expected from a person occupying the office of the public protector”. Her remedial actions were “a product of a procedural­ly unfair process and are unlawful”.

Not much more was needed to be said after that. However, as Mkhwebane continued in office, so did her transgress­ions.

Her next big report was a whitewash. Politician­s who were demonstrat­ively involved in buying a farm for the Gupta family with state funds, which were later laundered and used to pay for a family wedding, somehow escaped all culpabilit­y for the transactio­ns. Again, these politician­s were close allies of Zuma and his faction, whose bidding she had done before. This report, too, is now before the courts for review. In Parliament on Wednesday, the DA tabled a dossier along with a motion to have Mkhwebane removed. As argued above, there are ample grounds to do this.

The ANC, though, was ambivalent. Mathole Motshekga, the chairman of the justice committee (where the motion was brought), has previously strongly opposed Mkhwebane’s manipulati­ons. In the Bankorp matter, the Speaker of Parliament, Baleka Mbete (with Motshekga’s co-operation), filed a scathing affidavit opposing Mkhwebane’s remedial action to instruct Parliament to amend the mandate of the Reserve Bank.

In response to the DA, Motshekga argued appropriat­ely that Mkhwebane needed a chance to respond to the charges against her before the committee was able to take the matter further. This also may be because to push for a decision of this magnitude Motshekga knows he will need to secure political support way beyond that of the committee.

Luckily there is an ANC special national executive meeting coming up this weekend. It is a matter we hope Motshekga will argue must be on the agenda.

OF 50 REPORTS SHE HAS PUBLISHED SINCE SHE TOOK OVER, 10 FACE OR HAVE FACED JUDICIAL REVIEW

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