South Africa’s fourth Public Protector, Advocate Busisiwe Mkhwebane, had very big shoes to fill when she was handed the Public Protector’s reins a year ago by Thuli Madonsela.
Mkhwebane was undaunted and determined that her seven-year stint would result in the de-politicisation of the office as it devoted more of its time and resources to people and communities living on the margins of society.
If this was her goal, then she stepped firmly into a political firestorm when she recommended (essentially an instruction as the protector’s findings are legally binding) that the Constitution should be amended to alter the mandate of the Reserve Bank. This immediately provided ammunition to those who did not believe she was suitable for the post.
Julius Malema alleged that she was ‘captured’, while the DA moved to have her dismissed from office by Parliament. This effort did not go far. After initially agreeing to a request to hold an inquiry into Mkhwebane’s fitness to hold office, the ANC-dominated Justice Committee closed ranks and ruled that there was no need for such an inquiry.
On the other hand, Mkhwebane has admitted in court that she was mistaken about the Reserve Bank, and she has stood firmly behind the recommendation of her predecessor, that allegations of state capture should be the subject of a judicial commission of inquiry appointed by the Chief Justice.
Last week the Catholic Parliamentary Liaison Office waded gently into the fray, with a roundtable discussion on the Public Protector’s year in office. Unfortunately Mkhwebane chose not to attend, or send a delegate to participate in the discussion.
Lawson Naidoo, executive secretary of the Council for the Advancement of South Africa’s Constitution, argued that her first year has had some highlights. For instance, her office finalised 10 787 of the 16 397 cases lodged with the protector’s office, it succeeded in cutting costs by reducing the number of consultants used and it issued 15 investigative reports in eight months, all of which were held over from the previous incumbent.
“We have few comparative numbers, so I’m not sure that these are qualitative shifts,” he observed. “One hopes the cost cutting is not at the expense of the quality of reports produced. However, there are five reports currently under review within the courts – this speaks to the quality emanating from that office.”
But is this judgment harsh? After all both Madonsela and Mkhwebane have made repeated requests for additional budget to add the capacity necessary to shoulder the case-load. Perhaps Mkhwebane should be given time to grow into the role? Supporting this notion is the fact that she previously occupied a director level position within government, which is effectively a middle management position. “No, this is a critical institution in the fight against corruption,” says Naidoo, adding that “she had to hit the ground running. In the year that we have seen, I believe the jury is out as to whether she was the appropriate candidate”.
“We are not here to be kind or gentle,” added Dr Makhosi Khoza, former ANC MP and Chair of the ad hoc Committee for the appointment of the Public Protector. “When the Chief Justice was appointed, he came in for huge criticism [for being a political appointee of President Zuma, and for some of his legal decisions]. He is now held in very high esteem – he had to earn that and he did. The current Public Protector has not done that.”
How then did the country end up with a Public Protector who is failing to live up to the enormous expectations placed upon her by the country? After all, she was not appointed by the President.
“We cannot cast aspersions on the process,” says Khosa, “It was open and transparent”. However, at its heart, it was a political process. Shortlists were drawn up on a subjective and partisan/political level and the committee had one day in which to interview all 14 candidates. “I think parties were thinking about the candidate they wanted, rather than the best person for the job. The process can be made more robust,” says Naidoo.
The integrity of the process must be paramount, given that the Public Protector faces no mid-term evaluation and can only be removed by a two-thirds majority in the National Assembly on the basis of misconduct, incompetence or incapacity.
“We have failed to hold people to account. We as civil society need to claim this space,” says Naidoo. “People get away from things because they are connected – and that is the corrosive aspect of our society.”
Khosa had the last word: “As citizens, we need to rise up Madame Public Protector and say that notwithstanding some of your accomplishments, you have broken the 11th commandment: thou shalt not betray those you are appointed to serve, the people. Therefore at the end of this, your first year, we have nothing that makes us smile as citizens and we implore you to resign your position.”