Will this be the end of Busisiwe Mkhwebane?

Something rigorous must be done to ensure that the Public Protector’s office does not become a political tool for nefarious goals, writes Yonela Diko

When Busisiwe Mkhwebane began her tenure as Public Protector of South Africa in 2016, she was clear in her plan to focus on protecting the little guy, the ordinary citizens, against the might of the state and other institutions.

She was going to take the power of the Public Protector to the most vulnerable citizens and allow them to stand on the broad shoulders of her office and confidently claim what was due to them, whether it was their unpaid pension, undelivered services, or other things that frustrate our citizens when dealing with the state.

There was immediate reservation and a little backlash to this articulation of plans and she was immediately viewed as implying a drastic shift from her popular predecessor who had made it her personal and singular mission to go after the big guys, particularly then president Jacob Zuma.

Mkhwebane was unmoved.

In fact, eight months into her job, Mkhwebane released 11 investigative reports.

She also concluded 10 787 investigations in the same period. Most of these reports involved service delivery failures, farm evictions, disagreements between chiefs and municipalities, unfair dismissals and abuse of staff.

I was thoroughly impressed by her, especially after it emerged that Thuli Madonsela, with her seemingly singular focus on the person of the president, had left 16 397 investigations unconcluded.

One particular case that Madonsela had moved at a snail’s pace in resolving was the Bapo ba Mogale community crisis which was lodged at her office in 2012.

By the time she left in October 2016, the case was not concluded.

The Bapo ba Mogale had made allegations of looting of community resources, particularly funds held in what they called a “D account”, into which companies paid royalties to communities whose ancestral land they mined.

Lives were being lost and the community was divided but Madonsela did not move with the necessary speed, as she seemingly did in pursuit of the president.

So for me, Mkhwebane had the correct approach of focusing more on the people than on one big guy, or at least I expected some balance.

I therefore could not explain Mkhwebane’s about turn when she suddenly became obsessed with the person of the president, except maybe a realisation, like her predecessor’s, that there is no glory in fighting for the small guy.

While Madonsela could be accused of being obsessed with President Zuma at the expense of other important investigations in her office, he was actually posing a huge threat to the country, its fiscus and its institutions.

Investigating Zuma was not only a legal obligation but a moral one.

In that regard the Public Protector’s office acted as a guardian of our Constitution against the excesses of the president and his complicit and pliant executive, and was rightfully celebrated for its vigour and determination.

Mkhwebane was later reassured with firm constitutional powers to march forward in her righteous quest.

At the very least, she was expected to walk on this path if she found no glory in her initial vision of fighting for the small guy.

Unfortunately, Mkhwebane soon turned the constitutional powers of the Public Protector’s office into an irrational weapon against a president, a president who was the antithesis of his destructive and unprincipled predecessor, which resulted in the flipping of positions, where now the Public Protector seemed to occupy the destructive and unprincipled position previously occupied by a former president, allowing the incumbent to occupy the position previously occupied by the former public protector.

The courts were left with no choice but to crack the whip, describing the Public Protector in the most unpleasant and vicious terms in their judgments.

Going after the president had turned Madonsela into an instant celebrity and Mkhwebane may have been tempted to lift her own fortunes but, in doing so, she turned the Public Protector into a tool of spite, raising questions – correctly – about alternative interests she might be serving, most likely those who had besieged the citizens’ purse and were in survival mode because of the new president.

Both Madonsela and Mkhwebane turned the Public Protector’s office into a bully’s pulpit, armed with constitutional powers that seemed to give them a certain righteous high.

With constitutional responsibility come the legal obligations which must be met because of the risk of abuse of those constitutional powers.

Unfortunately, in each and every case Mkhwebane has had to defend in court, she has been found to have done exactly that – abuse her constitutional powers.

Of course, the damage a Public Protector can do in the state happens before her cases reach the courts and this poses a particular problem.

One cannot help but wonder whether this is what Cape Town High Court Judge Ashton Schippers foresaw in his judgment that was subsequently overturned.

“If the Constitution wanted the recommendations of the Public Protector to be binding, it would have said so,” he had said in his ruling.

Schippers was clearly trying to avoid the very morass we are in today of giving people’s powers to unelected people and then hoping for the goodness of their hearts in exercising those powers correctly.

Of course, this is but reactionary, for the matter was fully ventilated in the Constitutional Court and the Justices must have concluded that such a risk did not outweigh the potential to summarily dismiss the findings of that office.

The dilemma of course is that, while such an office has shown the potential to stop even an elected government from abusing its own people, such power can in turn be used to paralyse an elected government.

Why win elections then if you can attempt to influence this one person, the Public Protector, to use her singular powers, to frustrate the elected out of power.

There is today a very likely risk that the Public Protector, with her zeal and cavalier attitude towards the limits of her mandate, may cause an irretrievable mockery of democracy where she could, obviously unbothered by the broader responsibilities, just charging the walls with her fanaticism, instruct the removal of a president.

Her recommendations are binding.

There are, however, lessons to be learnt and maybe matters to be taken to court for further ventilation and guidance.

Firstly, the question of whether the Public Protector should investigate a complaint of one politician against another, or political parties is deeply problematic.

This turns the office into a political weapon to be used by politicians against one another.

Politicians and political parties already have access to multiple avenues for pursuit of one another, due to their resources and proximity, that ordinary South Africans could only dream of, and the Public Protector is meant to be the power of the people against institutional abuse.

Keeping the Public Protector busy with politicians’ complaints against one another robs ordinary people of time and attention from the office, in the name of the high and mighty who could afford powerful alternative avenues.

Secondly, and this is a wish at this stage, is that, in hindsight, the most appropriate procedure should have been for the Public Protector, on concluding her investigations, to submit them to the high court for determination of whether there was a case to answer and whether all legal requirements had been met.

The periods between when the Public Protector makes her binding recommendations and the conclusions of judicial reviews have proven to be very destructive and a tool for political mud spats that sucks the political life out of the country, only to find there was nothing to it.

This is unnecessary and avoidable.

Thirdly, there must also be a midterm review of the work of the Public Protector so that she is not measured only on the basis of the political hot-button cases but on the overall work of her office.

This should also help us determine whether she is in fact working on all issues in a balanced and equitable manner and is not obsessed with headline issues or specific individuals.

The adhoc parliamentary committee that will look into her fitness to hold office may well do some of these things.

Whether their final verdict will be to get rid of her or to restructure the systems of her office, in the end, something rigorous must be done to ensure that this office does not become a political tool for nefarious ends.

Our institutions are not static, they must be continually strengthened and refined.

That strengthening and refining may well require a new Public Protector.

Yonela Diko is a social commentator

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