Will Busi earn the public’s trust?
Public protector Busisiwe Mkhwebane certainly is a new broom, but there are disconcerting indications that she does not sweep as clean as her predecessor, warns
MEDIA reports suggest that the new public protector, Advocate Busisiwe Mkhwebane, is wasting no time in taking on the role of a new broom sweeping clean in the office she now occupies.
Her “reforms”, according to a media summary published in Legalbrief, include the discontinuation of the use of donor funds‚ doing away with the naming of investigation reports‚ cutting the use of consultants‚ prioritising the finalisation of cases more than two years old and placing a moratorium on international travel.
Mkhwebane reportedly said in her first week in her position as public protector that she had noted that there was low staff morale‚ at least in the head office.
She said some of the most pertinent problems related to performance management and the development system‚ and the occupation-specific dispensation‚ whereby junior staff members earned more than their supervisor.
Mkhwebane said the root cause of the problem was the inadequate resourcing of her office.
She added that she was uncomfortable with the use of foreign donors to assist the programmes of the office of the public protector.
Other reports indicate that Mkhwebane has, worryingly, indicated a preference for the Gupta-owned ANN7 TV news channel and is desirous of cultivating good relations with the government.
The office of the public protector is a constitutionally created independent watchdog body, an ombud with “teeth” duly empowered to make binding and enforceable rulings in relation to the appropriate remedial action required to address instances of maladministration uncovered in and reported on after the investigative work of the office is done.
By its very nature the office is not one that is ever likely, if it is properly run, to endear itself to the government it monitors.
Indeed, the whole remit of the public protector is to seek out maladministration or respond to complaints of maladministration in the affairs of state and in the public administration.
Good relations with those whose maladministration is the sole concern of the office are probably a bridge too far, unless the office compromises on the “three eyes” of independence, integrity and impartiality in its work. The office was created, with other Chapter 9 institutions, to support and strengthen constitutional democracy, not to be best friends with the government. Of all the previous incumbents of the office, only Advocate Thuli Madonsela has properly appreciated the importance of speaking truth to power and taking an independent course of action in the work of the office. The manner in which the support of constitutional democracy manifests itself in the work of the office is through the protection of the public, not the fostering of good relations with the government. Constitutional democracy is a concept that is new to South Africans, long under the yoke of parliamentary sovereignty as passive subjects of an oppressive regime rather than active participants as citizens in an open, accountable and responsive new order. Will the Gogo Dlaminis, so beloved of Madonsela, still bring their troubles to the public protector when they learn that the new incumbent is desirous of cultivating “good relations” with the government? Will they have confidence in the independence of the office when, in the absence of fealty to the constitutional values applicable, there is not a constant tension between the government and the protection of the public? Just as there is healthy tension between the executive and the judiciary in any order which adheres to the doctrine of the separation of powers and the enforcement of checks and balances on the exercise of power in a multiparty system under the rule of law, a similar tension — for which Madonsela was famous and was eventually congratulated by the ANC — should be permanently in place between the public protector’s office and the government. Mkhwebane should reconsider her desire to have “good relations” with the government and re-examine the inwardness of her role in our constitutional dispensation.
She has been banging on about her perception that there is a need for “good relations” since her parliamentary interview.
If she can get her head around the notion of acting without fear, favour or prejudice, she will recognise that getting all cosy with the government is the last thing she should be doing.
The allergy to foreign or nongovernment-sourced funding is paranoid.
The Constitutional Court Trust has long accepted donations from all and sundry to improve the effectiveness and efficiency of the court. It, too, is constitutionally enjoined to act without fear, favour or prejudice.
Mkhwebane should either explain why her office’s position is any different to that of the court, or launch her own investigation into the Constitutional Court Trust.
Doing away with consultants could turn into an expensive, unwarranted exercise
Dropping the use of publicfriendly and catchy titles for reports is contrary to international practice and is perhaps a churlish way of distinguishing the new leadership from the old.
If the content of the reports remains as excellent as in the past seven years, nothing will turn on this so-called reform other than sparing the government the embarrassment of being the butt of the joke in some titles.
Doing away with consultants could turn into an expensive and unwarranted exercise. It does happen from time to time that the advice of quantity surveyors, forensic accountants or medical specialists may be required in the course of an investigation by the office.