/Are we judging Mkhwebane fairly?

Are we judging Mkhwebane fairly?

2019-06-04 08:56

Whether
or not we as a nation trust Busisiwe Mkhwebane, we still owe her an open, fair and
transparent inquiry driven by public interest and not our narrow political
preferences, writes Ralph Mathekga.

The
situation unfolding around the office of the Public Protector is a major test for
whether South Africans are able to strike a balance between protecting the
integrity of democratic institutions on the one hand, and managing our fascination
with personalities on the other hand.

Since
Advocate Busisiwe Mkhwebane replaced Advocate Thuli Madonsela as the Public Protector,
the reputation of the office has been under scrutiny from different
stakeholders across society. Mkhwebane’s appointment by Jacob Zuma was met with
suspicions about whether the then embattled president was looking for an
executive-minded Public Protector after Madonsela’s litany of reports in which his
administration was found wanting.

After
a bruising battle with Madonsela about her reports, Zuma would have no appetite
to appoint an affective Public Protector. Mkhwebane’s appointment was therefore
seen as Zuma’s attempt to weaken the office by deploying to it an alleged
former intelligence minion. Different political parties approved Mkhwebane’s
appointment with all sorts of disclaimers attached. The EFF even threatened to
remove her in the future if they found out she was a spy. All of that is now
water under the bridge since the EFF is playing the role of a certified mbongi
(praise singers) for Mkhwebane.

Mkhwebane’s
record in the office thus far has not absolved her from the suspicions she was confronted
with during her appointment. She has come out with some bizarre reports, two of
which have been successfully challenged in court. In these instances, the court
has declared her reports unlawful, unconstitutional, and so forth.

Her
finding that there was no wrongdoing in the controversial Gupta-engineered
Vrede dairy farm project in the Free State was declared beyond comprehension by
the court. The judgment came after Mkhwebane suffered a blow in the High Court
following a successful challenge against her report on the Reserve Bank and Absa
matter. The Absa and Vrede farm cases showed that resolute and honest parties
can successfully challenge Mkhwebane in court.

The
general concern that seems to be gathering around Mkhwebane’s reports thus far
is that they are lacking in reason and substance. So far, they seem to have
been based on some conspiracy theories, instead of rational arguments grounded in
the mandate of the Public Protector. Some have criticised her reports as
answering questions that have not been raised whilst not providing solid
answers to the questions that have been raised. In one of the reports, Mkhwebane
bizarrely even suggested a constitutional amendment to change the mandate of
the Reserve Bank.

During
the Madonsela era, the office of the Public Protector enjoyed a near messianic
stature. Madonsela kept growing a stronger backbone as an independent-minded Public
Protector caring for the vulnerable in society. But Mkhwebane is rather
gathering a reputation as a Public Protector whose reports keep on getting
overturned in court. She does not enjoy the benefit of the doubt as someone who
is acting in the public interest. Instead, she is seen to be driven by sinister
political agendas and it has been argued recently that her continued tenure as
Public Protector is harming the integrity of the institution.

Too many negative judgments?

Indeed,
a case can be made that Mkhwebane has had too many negative court judgments on
her reports to justify it as a normal pattern of engagement with the office. Too
many successful court challenges mounted against Mkhwebane’s findings should
indeed raise concerns about her ability to do her job properly, whichever
political views she may hold as a person.

Mkhwebane
was surely not hired to produce weak reports that can be ripped apart by primary
school kids! She was hired to do her job diligently, based on rigorous defence
of the public interest; instead of justifying reports on the basis of
conspiracy theories fabricated by a faction of the ANC fighting internal battles.
If we put aside ideas about how Mkhwebane feels about parties such as Absa or
Pravin Gordhan, for example, her reports where those parties were implicated
can be objectively assessed based on their rigour, depth and substance.

If
Mkhwebane happens to enjoy listening to Deputy President David Mabuza’s wisdom on
ethical leadership, her report and investigations into a complaint implicating
Mabuza could be objectively assessed on its rigour and substantive depth.

Doing her job in good faith?

This
brings me to the difficult question as to what to do about Mkhwebane as the Public
Protector. We should ask if Mkhwebane deliberately compromised the integrity of
her office by issuing sub-standard reports driven by political agendas or if
she is just an unlikable personality with strange political preferences yet
doing her job in good faith. Can we justify her overturned reports as genuine
mistakes by a Public Protector acting in good faith, or a hatchet job aimed at
achieving a sinister political agenda therefore justifying her removal from
office?

Removing
Mkhwebane from office simply because some people don’t like her would be an
obsession with personality instead of focusing on the strength of institutions.
If she is doing her job diligently without prejudice, she should remain in that
position so long as her record shows that she is strengthening the office as an
institution of democracy.

It
is therefore important that Parliament hold an inquiry into Mkhwebane’s
position as the Public Protector. The aim of this inquiry should not be to
remove her from office, but to establish if her record (of reports being
overturned) is caused by genuine mistake, genuine incompetence or the pursuit
of a sinister political agenda.

The
inquiry should be on how Mkhwebane’s quality of work relates to the mandate of
the office. If the accusations are that her reports are full of conspiracies
and untested reasoning, this does not justify a decision to remove her by
advancing similar conspiracy reasoning. It is important to objectively
establish the reasons for her sloppiness.

Whether
or not we as a nation trust Mkhwebane, we still owe her an open, fair and
transparent inquiry driven by public interest and not our narrow political
preferences. If we fail in this regard, we will be no better than Mkhwebane;
the very person we allege is blinded by political loyalty instead of reason and
principle.

Only
an inquiry driven by reason and principle will eventually protect the integrity
of the office of the Public Protector.  

– Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa’s Turn.

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