Seldom has an individual been so poorly suited or inappropriate for high office as Public Protector Busisiwe Mkhwebane. If there is one thing we learnt from the Nkandla scandal it is that the public protector’s office is enormously powerful. As the rulings of the public protector can be overturned only by a court, she in effect has the standing of a judge.
Mkhwebane’s short tenure has been filled with controversy, as well as more than enough of two of the three elements the Constitution requires to remove her: misconduct and incompetence. Out of 50 reports she has published since she took over, 10 face or have faced judicial review.
The latest one — her astonishing ruling that a tweet by Western Cape Premier Helen Zille, in which Zille stated that colonialism was not all bad, constituted a violation of her constitutional duty — would be funny if there weren’t dozens of violations of the Constitution that would have been more worthy of her attention.
The other instances of her misconduct are more serious and are nothing less than an abuse of power.
Soon after taking office, in a process that was clearly politically driven, Mkhwebane engineered a specific outcome of the Bankorp investigation, which had already largely been completed before her time. It focused on the apartheid-era bail-out of Bankorp, and Mkhwebane found that the Reserve Bank had behaved illegally in bailing out the troubled bank.
She also found that Absa, the entity that had bought Bankorp (along with its debt) back in the day, had illegally benefited and should pay back the money.
The remedial action she suggested was that Parliament review the independence of the Reserve Bank as enshrined in the Constitution. It so happened that at the time this call was popular among a radical grouping aligned to then president Jacob Zuma, which was set on undermining the invaluable institutions that govern the economy.
The put-down by the high court was punishing. As well as being hit with an order to pay personal costs, the court found "that she did not conduct herself in a manner which should be expected from a person occupying the office of the public protector". Her remedial actions were "a product of a procedurally unfair process and are unlawful".
Not much more was needed to be said after that. However, as Mkhwebane continued in office, so did her transgressions.
Her next big report was a whitewash. Politicians who were demonstratively involved in buying a farm for the Gupta family with state funds, which were later laundered and used to pay for a family wedding, somehow escaped all culpability for the transactions. Again, these politicians were close allies of Zuma and his faction, whose bidding she had done before.
This report, too, is now before the courts for review.
In Parliament on Wednesday, the DA tabled a dossier along with a motion to have Mkhwebane removed. As argued above, there are ample grounds to do this.
The ANC, though, was ambivalent. Mathole Motshekga, the chairman of the justice committee (where the motion was brought), has previously strongly opposed Mkhwebane’s manipulations. In the Bankorp matter, the Speaker of Parliament, Baleka Mbete (with Motshekga’s co-operation), filed a scathing affidavit opposing Mkhwebane’s remedial action to instruct Parliament to amend the mandate of the Reserve Bank.
In response to the DA, Motshekga argued appropriately that Mkhwebane needed a chance to respond to the charges against her before the committee was able to take the matter further. This also may be because to push for a decision of this magnitude Motshekga knows he will need to secure political support way beyond that of the committee.
Luckily there is an ANC special national executive meeting coming up this weekend. It is a matter we hope Motshekga will argue must be on the agenda.