Mkhwebane: Anatomy of a serious stuff up
'Nothing in the constitution‚ the Public Protector Act or in our case law gives her the powers to instruct lawmakers to change our supreme law'
Public Protector Busisiwe Mkhwebane must have learnt her first important lesson since she took office in November last year — that holding office doesn’t give one the carte blanche to do as one pleases.
It’s common sense to expect the findings and instructions of the head of a Chapter Nine institution to be legally sound‚ especially a body like the Public Protector‚ which has become so central in combating the flagrant abuse of public power we have witnessed under President Jacob Zuma’s scandal-prone administration.
What was bizarre about Mkhwebane’s report was her instruction that parliament should change the wording of Section 224 (1&2) of the constitution
Mkhwebane has made a number of questionable moves and statements since she took over from her revered predecessor Thuli Madonsela.
Her worst decision in her short tenure has got to be her instruction to parliament to change the constitution in order to tinker with the mandate and the independence of the SA Reserve Bank.
A few weeks ago‚ Mkhwebane found against Absa/Bankorp in a case involving the bank’s liability for the repayment of the R1.1 billion lifeboat the Reserve Bank extended to it between the late 1980s and the early 1990s.
The facts around whether or not Absa should repay the lifeboat in full are still in dispute. However‚ what was bizarre about Mkhwebane’s report was her instruction that parliament should change the wording of Section 224 (1&2) of the constitution.
She even gaves MPs the exact words they should substitute for the ones used by the crafters of our supreme law‚ something that would have taken away the independence of the central bank.
She has united the Reserve Bank‚ the national Treasury and parliament against her findings.
Yesterday‚ Mkhwebane announced that she would not oppose the central bank’s decision to take her remedial action on review. Her backpedalling confirms what many people have always suspected — she has overstepped her authority.
Nothing in the constitution‚ the Public Protector Act or in our case law gives her the powers to instruct lawmakers to change our supreme law.
Not even the courts have done that in the past 23 years.
She has previously indicated that she would state her case in court when her findings are challenged.
It must be embarrassing then for her to admit that her lawyer advised her not to challenge the review of her first major report. It says she had no legal leg to stand on from the onset.
Many people have been questioning her good intentions ever since she took office amid unconfirmed allegations that she has a cosy relationship with the executive — the very people the institution she heads was created to keep an eye on.
If she goes on like she is doing now‚ she might find herself out on a limb
Even more worryingly‚ her flip-flopping when asked about the basis of her instructions to parliament suggests that her grasp of the law is a bit shaky for a public official at the helm of an institution mandated to support our constitutional democracy.
Noble as her sentiments about transforming the economy may have been‚ the remedial action she prescribed has hurt an already fragile economy. It has also led to unnecessary litigation at the expense of the public purse.
One can only hope she has learnt her costly lesson‚ and that she’d recover from this faux pas. But if she goes on like she is doing now‚ she might find herself out on a limb.
It is possible that someday a lobby group might use the outcome of a court case like this one — if it is scathing on her professional standing — to challenge her fitness to hold office.
She’ll find herself joining the long list of public officials who have been forced to vacate office prematurely.