Voices

No one has caused more harm to the office of the Public Protector than Mkhwebane

2019-07-30 01:25

No other individual has caused more harm to the office of the Public Protector than the incumbent. And the damage Busisiwe Mkhwebane has exacted on our constitutional democracy will not be offset by any punitive costs or her shaming.

Many people wish they didn’t have to say this, but it is the damn truth and we have to say it – we have a Public Protector, egged on by a coterie of apologists, whose goal, it clearly seems, is to unashamedly subvert constitutionalism and turn us against one another.

Let me explain.

In his preface to the bestselling book Lawfare: Judging Politics in South Africa, retired Deputy Chief Justice Dikgang Moseneke opined thus: “… the growing debate on constitutionalism and the material transformation of our society is that the promise of our Constitution is a legitimate outcome of our own struggles and historical demands for a just society. It is rooted in our collective African location and ubuntu.”

The public’s legitimate demands for and expectations of a just, peaceful and prosperous society that is free of graft are continually trampled on by errant Public Protector Busisiwe Mkhwebane.

She seems unperturbed by the ignominy and peril her awful conduct invites to herself, the office she occupies and our Constitution.

Her ineptness and apparent desperation to frustrate efforts to undo the devastation of our body politic and economy by the previous administration are mind-boggling.

The economic violence and wanton criminality of the past decade was against everything that our struggle for freedom from apartheid represented, and went against the values of ubuntu.

This has ignited pent-up anger against those seen to be shielding wrongdoers from accountability, especially the Public Protector, who seems to target individuals who are fighting corruption.

Lest the venal and their apologists forget, public anger is a hugely powerful and motivating force.

It has been a motivating force for mobilising every social change movement in history.

And when they dismiss or trivialise public anger against them, they are essentially trying to take that power away from us.

Mkhwebane and her sponsors’ reflexive dismissal of our anger’s legitimacy and disgust does two things.

First, it mistakenly perceives and treats those fighting malfeasance as weak, broken or timid.

Second, it tries to weaken the power of public anger and the unyielding resolve to undo the ravages of state capture and pervasive graft.

The venal shall not subdue the upright nor succeed in stealing the promise of our Constitution.

President Cyril Ramaphosa’s inherent poise and decency, in spite of the clearly orchestrated attacks on him and others, palpably exposes the shame-shaped hole in the hearts of those who perpetuate the scourge of corruption, wittingly or unwittingly.

That the apex court had to, once again, be relied on to blunt Mkhwebane’s asymmetrical, proxy lawfare waged at the public’s expense is as shameful as it is worrisome.

DAMNED BY THE COURTS

In a damning majority judgment, the justices of the Constitutional Court severely criticised Mkhwebane thus: “To the extent that the Public Protector conducted herself in bad faith, the potential immunity she may otherwise have enjoyed is of no assistance to her in this matter. The Public Protector exceeded the bounds of indemnification.”

Pertinently, the lower court had earlier ruled that Mkhwebane “did not fully understand her constitutional duty to be impartial and perform her duties without fear, favour or prejudice”.

As it hammered the final nail into Mkhwebane’s vexatious litigation coffin, the court remarked: “Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.”

In plain language, our Public Protector is a pathological liar!

Not that the weary public didn’t already know that which the apex court confirmed: Mkhwebane is as politically clueless as she is lawless.

Emboldened by the minority judgment penned by Chief Justice Mogoeng Mogoeng, Mkhwebane inexplicably proceeded in her disgraceful sabre-rattling against Ramaphosa, National Assembly Speaker Thandi Modise and Public Enterprises Minister Pravin Gordhan, as if the apex court had just vindicated her incompetent, lying and duplicitous ways.

No other individual has caused more harm to the office of the Public Protector than the incumbent.

And the damage Mkhwebane has exacted on our constitutional democracy can never be offset by any amount of punitive costs or shame she has invited on herself.

It is becoming increasingly difficult to be objective when considering Mkhwebane’s habitually flawed findings and reports.

However, not all that emanated from Mkhwebane’s egregiously shameful report on Ramaphosa is awful.

Mkhwebane has energised public discourse on intrapolitical party funding. It is incumbent upon us to guard against the pernicious influences and expectations of those who pay the piper.

As we expose those who surreptitiously contribute to, or insert themselves in, presidential campaigns led by the upright, let us equally throw the book at those officials who divert scarce public funds – intended to secure our crime-ridden communities – towards presidential campaigns of candidates generally perceived to be friends of the corrupt.

Thus, as we rightly criticise Mkhwebane for her extraordinarily awful conduct, we shouldn’t throw the baby out with the bathwater.

Mkhwebane quite likely believes that, by appeasing a particular constituency, she could secure herself sufficient political currency and cover crucial in her efforts to upend moves to have her removed.

Sadly, considering the far-reaching judgment that found her to have acted in bad faith and to have told falsehoods under oath, public interest advocacy bodies will surely be queuing at the courts to have Mkhwebane disbarred for, inter alia, conduct unbecoming of an officer of the courts.

Mkhwebane could thus be scavenging for fool’s gold, and a legacy filled with shame, in her ill-advised quest to defend the indefensible.

While on the subject of shame, ancient Greek philosopher Aristotle famously proclaimed: “Shame is an ornament of the young, and a disgrace of the old.”

Maybe, just maybe, Mkhwebane could be looking to play both young and old.

Evidently, if she feels shame, it is not heavy as she seems to have many apologists willing to help carry her burden.

As for a weary populace, we continue to wonder how much longer we are expected to carry the vicarious liability exacted on our national budget by errant, amoral public officials who seem to act with impunity.

It is tempting to badger Ramaphosa into joining the mud slugfest, but such a move will only guarantee victory for natives of muddy enclaves.

Ramaphosa shouldn’t be distracted in his pursuit of the material transformation of our society and the realisation of the promises heralded by our Constitution.

Let me hasten to posit that any rational individual with a conscience would have surely been shamed by the judicial rebuke of the magnitude delivered against Mkhwebane by the Constitutional Court last week.

Clearly, not so the belligerent and “anointed” senior public official who recently claimed that “only God can remove me”.

Perhaps as Mkhwebane steels herself for her inevitable recalling (not by the Almighty!), it may not be a bad thing to start belting legendary musician Tsepo Tshola’s lyrics from his hit song Papa: “You’re waiting for your name, to be called (What do you say?) Your body is shaking with, disbelief (Tell us more) Cause you never ever, worked for it before (Before).”

Khaas is chair of Corporate SA, a strategic advisory consultancy. Follow him on Twitter @tebogokhaas

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October 13 2019