Mkhabela's analysis of Mkhwebane superficial and stale

Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)

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Sibusiso Nyembe

Since the appearance of the Public Protector Adv Busisiwe Mkhwebane before the parliamentary justice and correctional services portfolio committee (JCPC) on 17 April, there have been several articles about what transpired at the committee on various electronic media platforms but, more importantly, what the Adv Mkhwebane announced when responding to questions by journalists subsequent to the JCPC meeting.

Of the many articles I have seen yet the 19 April News24 piece by Mpumelelo Mkhabela titled “How Busisiwe Mkhwebane is hollowing out her office’s moral authority” captivated my attention. 

I must state upfront that the article is written in beautiful English. It makes for good reading, particularly if the reader is familiar but has a superficial understanding of the issues the article addresses. While on the issue of superficiality let me right away deal with what I regard to be the grave weakness of the article by Mkhabela.

I take liberty and say the fact that Mkhabela is attached to an academic institution and is a political analyst leads any critical reader to view this article through the rigours against which analytical, academic writings are always subjected and peer reviewed. This I do despite Mkhabela not having labeled his writing academically researched work.   

For analytic writing to be credible and for a trustworthy synthesis of ideas to flow from such analysis, the information upon which the activity is carried out must itself be subjected to and distilled from a credible process that subscribes to objectivity and balanced approach rules.  

Objective and balanced approach to available information is a cardinal attribute of a good academic. Not to begin and stop at the superficial, (because doing so is devoid of any analytic exercise and can never produce reliable conclusions) and instead going beyond the obvious has illuminating effect on “dark area of knowledge”. Also, it assists greatly in building capacity for critical thought in the public mind – a rare commodity during these days of fake news. The responsibility to defeat fake news lies on all well meaning academics.      

This much is true for an analysis both in the hard sciences and social sciences fields, and politics is a social science.  

Much of the issues coming up from Mkhabela’s article are not new and have long been responded to by Mkhwebane. That information is readily available in the public domain and Mkhwebane’s explanations were never rebutted. Although such information is stale by now, in much the same manner as Mkhabela has brought up stale issues by highlighting certain information (he likes) through his article, he must be objective, balanced and honest, and tell us also about what AdvMkhwebane said on those issues. 

If Mkhabela’s set goal was never to embark on an analytic exercise expected of a seasoned academic, at least he must be courteous and acknowledge that part of information by Mkhwebane already in the public domain, dealing with the many issues he cites. This is so even though Mkhabela may not like and/or believe in Mkhwebane’s information.

From a simple reading of Mkhabela’s article, it is obvious he is no fan of Mkhwebane and reminisces about the former public protector, Thuli Madonsela. That much I can’t do anything about. Mkhabela has already shown us his fondness of stale things. However, we must reject with contempt misrepresentation of facts to suite his favourite personality.

Mkhwebane never refused to partake in a proper handover process. I challenge Mkhabela to go and discover for himself like a well-meaning academic will do, from the information already in the public domain the details and the time sequence of events immediately preceding Mkhwebane’s first day at work. Despite lack of handover before 15 October 2016 she’s found her way, stepped on landmines but is still standing on her own two feet.

Until Mkhabela demonstrates in the fashion an unbiased academic will do, credible, objective and balanced processes through which he comes to many of the wild allegations and conclusions made in the article, these deserve no response.

Of course, the dairy farm complaint investigation had been finalised in 2015 at the time of the surfacing of the alleged Gupta emails. Other than a prudential approach to a constrained financial situation Mkhwebane did not mero motu deem it necessary to proceed with investigations of the matter because these matters surely will receive due attention by the State Capture Commission. Yes, she will now, with the specific request of the portfolio committee proceed and investigate the issues, albeit under a new file as she’s functus officio in so far as it pertains the matter already reported on.

In conclusion I must point out the dogma and static approach with which Mkhabela regards the Constitution. Although the Constitution is the supreme law that shouldn’t and is not often subjected to amendments, it is not cast in stone. It is not like a Bible, particularly for a young and transforming democracy as ours. You may be correct that Mkhwebane’s remedial action 7.2 of Report 8, which she has since agreed should be reviewed and set aside, seems disconnected to the entire report.

Many people, (I hasten to also include the courts) have never considered fully, or at all the merits of the CIEX Report and almost all and sundry have fallen into the trap by the banks to “chase off" people away from consideration of the merits of the matter.

Understanding the analytic process (an exercise you failed to do in a mere article under reply) Mkhwebane employed when crafting her report (which was also ready before she assumed duty as public protector) and the legislative guidelines within which she operates and must meet in her remedial actions, all which are stated in the report itself, it must be easy for an academic like you to extrapolate how she came to take a piece of remedial action proposing constitutional amendment, which seems disconnected to the entire complaint. All you really require is to approach the report with an objective, unbiased mind.

Having explained the legal strategic approach adopted by the banks in the matter it bears mentioning that there never was any "public uproar against the CIEX Report", instead there was an appeal by the banks to have the report set aside, which became a media spectacle. While the remedial action has been reviewed and set aside, the jury is still out on whether the findings of the report remain valid or not.

Lastly, your swipe at Adv. Mkhwebane when insinuating culpability on the part of Parliament by her continuity in holding office is bizarre to say the least. It reminds me of the biblical verse where Jesus invited “anyone that was pure to first throw a stone at a woman that was accused of adultery”. If I were you I would also wonder what university authorities think about the quality of your article and its impact on the academic rigour the University is supposed to uphold.  

- Sibusiso Nyembe is an admitted attorney of the High Court of South Africa specialising in property law and a special advisor.