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Regardless of what God decides about the future of Busisiwe Mkhwebane, there is an urgent need to review the constitutional provisions and the law regulating the Public Protector.
That is if we still see value in having a Public Protector and if we still want ordinary folk to have an effective mechanism to hold those in power accountable.
Even if God were to decide that Mkhwebane must step down or stay in office, we still need to address the issues which impact on the efficacy and standing of that office.
The reality is that the office of the Public Protector is known more for high-profile cases of spats between politicians than the issues of Gogo Dlamini.
A decision needs to be taken whether Gogo Dlamini must continue to be less priority compared with politicians who have the capacity and resources to assert their rights.
Not that these high-profile complaints are the only ones under investigation. There are probably thousands of complaints under investigation.
The Office of the Public Protector is getting discredited and is probably no longer enjoying the full trust and confidence of the people. This process started before Mkhwebane was appointed. The bubble is only bursting now under her and partly owing to her own contribution.
The framers of our Constitution sought to present the citizens with an effective mechanism to hold government and other arms of the state accountable without the rigours of costly litigation.
With the benefit of hindsight they may want to reconsider their assumptions and realise that what they had in mind then has been eroded completely.
They also envisaged a highly capable person to be appointed as Public Protector but may have not set the bar high enough.
One of the shortcomings of the current legislative framework governing the Public Protector is the absence of a dedicated mechanism to review and oversee the work of the Public Protector and to provide for a proper control environment.
The fact that former Public Protector Thuli Madonsela raises issues about matters she left incomplete in that office and we are left guessing about her motives for sparring with her successor about those investigations raises serious questions about the credibility of that office.
We need to know exactly what transpired in the past. We also need to know what Mkhwebane is doing which attracts this level of negativity.
Whether politicians, through Parliament, are the right people to do it is another matter. Methinks not. They have vested interests in this matter.
If indeed Mkhwebane is not competent, fair and objective, then Parliament failed us. We need a more objective process to determine the competence, fairness and objectivity of the Public Protector.
The one reality is that there is a growing body of opinion that Mkhwebane’s competence is questionable and that the office can no longer be fully trusted. Even courts have made comments and remarks which are concerning.
The judges’ rulings support an interpretation which justifies this body of opinion.
The courts’ rulings are not ambiguous or by any means confusing.
They do indeed question her competence except that they have not gone as far as suggesting that she is not competent.
Society is now divided about the competence or otherwise of the Public Protector. She is now accused of a political conspiracy to a level where it may even sound real.
When it is said that justice must not only be done but it must also be seen to be done, it is an appreciation that society can have perceptions which can undermine the sense of justice they desire.
The Public Protector’s office and the incumbents must always be seen to be fair and objective.
They must be seen to be upholding the highest standard of ethical conduct which must include high levels of competence. It is not clear whether the current Public Protector’s competence is being judged relative to that of her predecessor Madonsela.
There is also the question whether Madonsela in fact acquitted herself in terms of the requisite level of competence if any such standard was ever set.
From the public sparring Madonsela continues to have with Mkhwebane, it does not seem like that. She left incomplete reports behind. She may have reasons for that but she could easily keep quiet and allow her predecessor to determine the way forward.
We must remember that Madonsela hastily completed the State of Capture report and released it as she left office. Surely she could have done the same with the Waterkloof Gupta landing investigation and others.
In fact there may be serious questions about many other investigations Madonsela announced and never released the reports of or concluded leaving damaging allegations in the public domain.
People take seriously the announcements by the Public Protector that she is investigating and form opinions based thereon until the reports are issued.
The question of the Public Protector’s competence, fairness and objectivity is central to both the credibility of the office and justice being seen to be done. It is therefore a serious matter if the competence, fairness and objectivity of that office and the incumbent are questioned.
However, it is equally important how that competence, fairness and objectivity are to be properly and objectively tested if that is to be used to remove Mkhwebane from office.
Currently, the rather costly judicial review process is the only remedy available to correct any wrong findings, whether caused by incompetence or other things.
The allegations of a political hired gun may be hard to prove and just end as a perception rather than the truth. But they are destructive of the trust and credibility of the office of the Public Protecter as well as the incumbent.
The erosion of the trust and credibility of that office has created the toxic political environment we have.
It is clear that the office has become a political football for competing interests.
Mkhwebane was appointed in an already poisoned political environment. Her credentials were questioned from the beginning. But because of the political environment then, this was never considered. Even her past backers have turned around and are accusing her of being captured.
The one political party which raised red flags about her from the outset became the most active in referring complaints to her and being the first to run to court to review her findings.
They were also the first to call for an investigation into her fitness to hold office.
The suggestion by Mkhwebane that she was appointed by God and only God can remove her smacks of extreme arrogance. She knows that she was nominated, interviewed and appointed through a parliamentary process far from the head office of God.
Citizens should never tolerate such arrogance from a person occupying public office and should ask her to leave if that is what she believes in. No person holding public office is appointed by God.
All are appointed by the people through the constitutional mechanisms and must be held accountable for their exercise of public power.
Madonsela contributes significantly to the erosion of the trust and credibility of that office. Maybe she should be politely asked to focus on her new life.
Mannya is an advocate and writer
