Mkhwebane Threatens To Return Public Protector To Obscurity

She's been in office for 100 days, and it ain't looking good.

24/01/2017 13:26 SAST | Updated 25/01/2017 12:07 SAST


The public protector has over the last years firmly established itself as one of the major bulwarks against the common problems a growing democracy experiences: corruption, poor governance and criminality.

Advocate Thuli Madonsela and her team ensured that the public protector became the consequential and relevant constitutional body that her predecessors –- Advocates Selby Baqwa and Lawrence Mushwana – were either unable or refused to do.

Her successor, Advocate Busisiwe Mkhwebane, is however not building on the successes of Madonsela, but seems to be retreating and exercising extreme deference to government, which, she is on the record as saying, she doesn't want to antagonise. Since she was appointed to the position in October 2016, the public protector has bled expertise, refused to defend its own investigations and seemingly provided the counterweight to the state capture narrative.

Before Madonsela took the job in 2009, the public protector's office just off Lynnwood Road in Pretoria looked like any other government building. Nobody knew exactly what it was supposed to do. Did it investigate consumer issues? Was it at hand to assist aggrieved government employees with pension issues? Could it help angry owners of Ford Kugas?

By the time Madonsela left, the façade of the building was instantly recognisable, the office's logo a regular feature on the news and its mandate known far and wide. Former police commissioner Bheki Cele and police buildings, President Jacob Zuma and Nkandla and the Guptas and state capture were all investigations that pushed back the growing creep of corruption.

The interview Madonsela conducted with Zuma in October last year, before finalising the report into state capture, remains one of the most remarkable documentations of the president, giving insight into his ethics and morality.

Mkhwebane thus inherited an office with a well-established reputation of challenging authority, questioning the political elite and using the Constitution and courts in order to achieve redress.

On Monday, Julius Malema, leader of the Economic Freedom Fighters (EFF), said he regretted his support for Mkhwebane during the parliamentary interview process, describing her as a "Gupta puppet". The Democratic Alliance (DA) have already registered its disappointment, while Steve Swart, experienced and respected MP from the African Christian Democratic Party (ACDP) is worried, but believes she should only be judged once her first report is released.

Swart is correct in that Mkhwebane's office has yet to release its first findings –- it's however also true that a leak of its first draft report (into the controversial lifeboat extended to Absa by the South African Reserve Bank) is a poor effort, badly drafted and ignorant of previous investigations into the same issue.

It also true that a number of senior people have left the office, including the former chief of staff as well as senior investigators.

During Madonsela's term –- during which she wasn't universally loved and regularly suffered under the tongue of the late Dene Smuts, fiery DA MP –- the public protector became one of the last vestiges where the rule of law and constitutionalism was upheld.

Senior staff say they are very proud of what was achieved with the Nkandla investigation, and rightly so. The African National Congress (ANC) went out of its way to undermine and deligitmise her office, accusing it of spying for the United States, among other things. Eventually, however, the matter was decided upon by the Constitutional Court and the judgment it delivered over Zuma will remain precedent setting.

But the investigations they are most proud of aren't those that dominated social media and hogged hits, it was the gogo's who were let down by the system and left with nowhere to go, staffers say. And yes, they all agree, it was those investigations that form the backbone of the work the public protector does and the core of what the drafters of the Constitution (of which Madonsela was one) envisaged it should do.

But there are real fears that Mkhwebane will not go after a Nkandla when it arises. Already it seems the second phase of the investigation into state capture won't go ahead and that Mkhwebane has no appetite to challenge vested interests.

Over the last years we have lost the police (perennially suffering under leadership crises), the Hawks (Zuma's praetorian guard) and the National Prosecuting Authority (staffed by lackeys). There is no doubt the public protector, over the last seven years, helped safeguard the central tenets of our democracy and beat back pervasive corruption. It will be called on to do so again.

Madonsela established the public protector as a constitutional champion. Mkhwebane threatens to return it to obscurity and irrelevance.