The office of the public protector is one of the most powerful and important positions in public office. In the battle royal between former public protector Thuli Madonsela and former president Jacob Zuma over the upgrades at his Nkandla home, the Constitutional Court ruled that the remedial action of the public protector could not be ignored or modified and could be taken only on review by a court.
This ruling — that the office of the public protector held a status similar to that of a court — was enormously important. It made it clear that in establishing the office of the public protector the makers of the Constitution had given citizens real and effective recourse in the event of abuse of power.
But in 15 months the incumbent, Public Protector Busisiwe Mkhwebane, has shown she does not want to protect the public. In the two main cases on which she has issued reports, she has done the opposite. In one, she has actively protected those accused of corruption by refusing to investigate; and in the other she has played an ugly political game, performing the bidding of her political masters for an ulterior motive.
In the 15 months she has occupied office, Mkhwebane has brought shame on herself and the institution
The first, a report on an apartheid-era bail-out of Bankorp — a failing bank rescued by the South African Reserve Bank and then bought by Absa — was designed not to get to the bottom of what happened but rather to land blows in the fight against "white monopoly capital" by smearing Absa with claims that it illegally benefited from apartheid corruption. In making her finding, Mkhwebane ignored the evidence that had been gathered over years in the public domain, consulting instead with Zuma and the State Security Agency before making her report final.
On review, the High Court in Pretoria was scathing in finding that she had "failed to understand her constitutional duty to be impartial". Her remedial action — that Parliament amend the Constitution to change the mandate of the Reserve Bank — was set aside as unlawful. The court stopped short of saying she had abused her office, but invited the applicants to apply for such an order. It hit her with a portion of costs, which she must pay from her pocket.
In the second, the scandal of the Estina dairy farm, in which funds from the Free State provincial government were siphoned off to pay for an elaborate Gupta wedding, her agenda was even more transparent. While she recommended subjecting government employees to disciplinary procedures, she did not mention the names of the Free State politicians involved — Ace Magashule and Mosebenzi Zwane — both of whom have been implicated in state capture. Her reason for refusal to investigate obvious transgressions was that she had been unable to do so due to financial and capacity constraints.
In the 15 months she has occupied office, Mkhwebane has brought shame on herself and the institution. In addition to her obvious political prejudice and her professional incompetence, she has no integrity. She is unfit to be the public’s protector.
In Parliament on Tuesday, Mkhwebane fended off these criticisms as if they were merely differences of opinion. Asked whether she would resign, she told MPs that she would not and intended to serve the full seven years of her term. This was because, she said, she had been appointed in a fair process to serve South Africans.
The process of her selection was indeed a fair and much-publicised process. So too, then, should be her removal. Her abuse of office, her manipulation of information, her lack of commitment to the truth and her neglect to investigate obvious transgressions are all grounds for her removal.
The civil society organisations and lobby groups that brought the Nkandla case to the Constitutional Court must now take on the next fight to protect the integrity of the office.
It is unfortunate that Mkhwebane insists on taking the long route to the exit. There is no choice but to embark on what will in the end be a humiliating removal.