How Busisiwe Mkhwebane is hollowing out her office's moral authority

Public Protector Busisiwe Mkhwebane is seated in Parliament to face questions from the portfolio committee on justice. (Paul Herman, News24)

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The ominous signs were there. It started off as an office fight over the DSTV remote control. Her preferred channel, the one that is a product of state capture, had to prevail.

She abruptly moved staff around before she could appraise their strengths and weaknesses. It was as if a politician had just been appointed into a new office, bringing with her own advisors.

In addition to refusing to partake in a proper handover process, she went on to start a quarrel over the usage of a car by her predecessor, Thuli Madonsela. She triggered a war of words with Madonsela, who eventually accused her of lying – an accusation more prescient than the public would have imagined.

Bizarrely, she accepted an invitation to give a public lecture before she could prove herself on any aspect of the work of the public protector. She had not investigated any matter.

From the beginning, Busisiwe Mkhwebane, the public protector of our Republic, had the wrong priorities. Without showing she had an interest in what she was employed to do – to protect the public against corruption, abuse of power and maladministration – she asked the police to investigate Madonsela.

Madonsela’s sin was to release a recording of a state capture interview she conducted with then president Jacob Zuma where he refused to answer questions. How the release of the recording by Madonsela to protect the integrity of the public protector’s office, which was under attack by Zuma, constituted a breach of law to warrant police intervention is a matter Mkhwebane is yet to explain.

Madonsela had tried to prove Zuma was lying when he told the public and the court he had never been given an opportunity to answer the allegation that he was involved in state capture.

All the above were Mkhwebane’s preliminaries of what was to come. We can’t say warning shots were not fired. Notwithstanding the warning, the public response was that she should be allowed to continue with her job. It was too early to judge her. Very fair indeed.

But the Bankorp-CIEX report laid bare Mkhwebane’s incompetence and malicious behaviour for all to see. She challenged the very constitution that established her own office by recommending that it be amended to change the mandate of the Reserve Bank.

Instead of protecting the value of the currency, as is currently the case, she said it should be given some undefined socio-economic responsibilities.

To support her argument, she referred anonymously to "leading scholars" without citing scholarly publications on the subjects of monetary policy and banking systems. She never explained why a complaint about the handling of Reserve Bank life boat given to Bankorp, later inherited by Absa, had anything to do with the bank’s responsibility to protect the value of the currency.

She also never said, after her proposal to change the mandate of the Reserve Bank, who should protect the value of the currency. But what was clear in her report was that she had been influenced by people with vested interests.

She uncritically swallowed their ideological garbage – a sign of sheer lack of independence on her part. It was also an irrefutable case of dishonesty. Even worse was that she did not fully disclose the details of her meeting with people who were extraneous to the case. Nor did she give other parties like the Reserve Bank and Absa the right to respond to information she got from meetings with the Presidency and state security officials.

Following a public uproar and an appeal to have her report set aside, she responded by saying she was merely making a recommendation. A response judge John Murphy correctly described her as "disingenuous". The synonym for the word is "untruthful". Remember Masonsela’s words about lying?

If this did not disqualify her to be a public protector, surely nothing will. Her conduct had now gone passed the warning shots. She was now substantively involved in hollowing out the moral and constitutional authority of her office.

Her report on the Free State dairy farm scandal would take the hollowing out of the office to deeper levels. Mkhwebane inherited the investigation from Madonsela. But before Mkhwebane could conclude it, allegations surfaced of Gupta links and widespread looting. It was widely reported that money meant to uplift aspirant black farmers was looted in an elaborate scheme that would have been impossible to implement by officials without political approval.

But Mkhwebane’s report said nothing about politicians. Instead, it asked the very same politicians to discipline the officials who were invariably instructed by politicians to misappropriate public money for nefarious ends. In response to public concern, she said she didn’t investigate politicians because she had not received complaints related to them.

This was an insult to the collective intelligence of South Africans. The Public Protector’s Act makes it plain that she is entitled to institute an investigation even if there is no complaint.

She was called to explain herself in Parliament. The grilling by MPs was dangerous. She will now investigate politicians not because she, on her own, thought there is something worth investigating, but rather because the people who employed her say so.

Now, where is her independence if she was ever predisposed to such? It should be evident by now that having an incompetent and dishonest person occupy such an important office opens it up to the wrong influences. It compromises the integrity of the office.

By allowing her to continue in office with full knowledge of her incompetence, Parliament itself might be in breach of the Constitution.

- Mkhabela is a political analyst with the Department of Political Sciences at the University of South Africa.

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