Busisiwe Mkhwebane’s first 100 Days as the Public Protector How vigorously is she protecting the public against abuse of state power?

Introduction

The Office of the Public Protector was first established in the interim Constitution and later confirmed as an institution which would “strengthen constitutional democracy in the Republic” in the final Constitution.[1] As a ‘constitutional watchdog’ the Public Protector is tasked with strengthening constitutional democracy by “investigating and redressing improper and prejudicial conduct, maladministration and abuse of power in state affairs.”[2]

The history of the Office

South Africa has seen four Public Protectors since the Office’s establishment. The first, Selby Baqwa, held office between 1995 and 2002. He has been described by one commentator as a “canny operator” who was careful “not (to) upset too many political apple carts too early in the life of a new institution. Prudence was the watchword of his investigations.”[3]

The second, and most heavily criticised, was Lawrence Mushwana who held office between 2002 and 2009 and has been denigrated as a “lapdog for the ruling party” and a “watchdog with no bark or bite”.[4]  This was due to his party loyalty and failure to investigate ANC top brass thoroughly. This is exemplified in the Oilgate Report of 2005 in which the Public Protector’s Office was forced by a court order to instigate a full and proper investigation of the matter.[5] Other botched high profile cases during this period included the 2006 investigation into then deputy president Phumzile Mlambo-Ngcuka, who had allowed her family to travel with her on holiday to Dubai in a South African Air Force aircraft at state expense.

Thuli Madonsela was the third person to occupy the position. Her tenacity saw the Public Protector’s Office grow in significance, not only in its media presence but also in what we as South Africans have come to expect from it as our constitutional watchdog. A number of high profile cases which Madonsela investigated during her time in office consolidated her reputation. These ranged from the investigation of Police Chief Bheki Cele back in 2011, to the recent, and most significant, State Capture Report of 2016 involving President Jacob Zuma and the Gupta family.

The new Public Protector

Our current Public Protector, Busisiwe Mkhwebane, has been in office for 100 days, as of January 23rd 2017. It is therefore fitting at this time to start asking questions as to what South Africans can expect from their fourth Public Protector. Has our ‘constitutional watchdog’ been reined in, as the Public Protector reverts back to the “lapdog for the ruling party” it once was?  What insights can we draw from her actions over these last 100 days to understand better what the next seven years have in store for the Chapter 9 institution?   

Within her first week Mkhwebane’s office as our new Public Protector was put to the test when the Presidency applied to interdict the release of the State Capture Report. Her decision not to oppose the court interdict raised the first troubling question.[6] Regardless of the fact that the interdict was denied with costs, it is remarkable that the Public Protector showed little interest in what can be considered the most significant reports to be released by her Office during its existence.

Mkhwebane’s perceived indifference to the fate of the State Capture Report is not limited to a failure to oppose the Report’s interdict but is also evident in the Report’s pending judicial review. Whilst President Zuma’s lawyers and opposition parties have released statements concerning the President’s decision to challenge the Report, the Office of the Public Protector has remained silent on what its course of action will be.[7] While the Report may not have been written by Mkhwebane, it is a report which is intrinsically linked to the trust we place in the Public Protector’s Office. It is Mkhwebane’s duty to ensure that the State Capture Report does not, ironically, fall victim to “state capture”.

It has also been disconcerting since her appointment that Mkhwebane has faced two separate Commission for Conciliation, Mediation and Arbitration (CCMA) hearings regarding the unfair dismissal of staff.

The first dispute concerned Janine Hicks in which the CCMA ordered Mkhwebane to pay her the duration of her contract after she was found to have been unfairly dismissed.[8]

The second dispute concerns former Chief of Staff, Bonginkosi Dhlamini, who has only recently taken his dismissal to the CCMA.[9] Recognising that it is standard for the incoming Public Protector to restructure their staff and the way they run their office, as her predecessors have done, it is unsettling to see that Mkhwebane’s efforts have resulted in two legal disputes, not to mention that lead investigator of the ABSA-Bankorp Bailout Report, Tshiwalule Livhuwani, saw fit to resign at the end of 2016.[10]

These developments raise questions regarding not only Mkhwebane’s leadership but also her professionalism. By themselves, the CCMA hearings are of minor consequence. However, the end of Mkhwebane’s first 100 days in office have been overshadowed by the leaked ABSA-Bankorp Bailout Report, with potentially far more serious consequences.

Most interested parties have concerned themselves with the details within the Report.  According to Absa the Report contains “a number of errors”; and that former Reserve Bank governor Chris Stals stated that if the inaccuracies in the Report were not remedied he would resolve the matter in court. But the “poisonous politics around the Report”[11] are of graver concern.

Thuli Madonsela has warned that the leaked Report could be used for ‘nefarious’ purposes. COPE has spoken out against the leak’s ‘political agenda’ to draw attention away from the State Capture Report,[12] and some analysts even believe that “Absa is being targeted for closing Gupta-linked accounts”.[13] While the Public Protector’s Office has confirmed that an official mistakenly sent the full Report out to the implicated parties,[14] one may be forgiven if one struggles to dismiss the perceived political agenda, leadership issues and lack of professionalism under the guise of an innocent mistake. 

Conclusion

There is no doubt that Busisiwe Mkhwebane was always going to have her work cut out for her. However 100 days is not a particularly long period of time and it is disconcerting to see that questions regarding the Public Protector’s leadership, professionalism and independence have already been raised.  One hopes that this inauspicious start to Mkhwebane’s tenure does not come to characterise her period in office. If our worst fears are true and we have reverted to a  “watchdog with no bark or bite”, more strain will be placed on South Africa’s other institutions that protect our constitutional democracy and the rule of law.

Richard Griffin
Research Intern
richard@hsf.org.za

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