Why the Public Protector will not be axed

Eugene Brink says the last thing the ANC needs is another Thuli Madonsela

It is an accomplished fact by now that the Chapter 9 institutions provided for in the Constitution and that are supposed to bolster our democracy, do not function properly.

Some admittedly function better than others – as seen recently in the Auditor General’s (AG) very critical audit opinions and feedback on the dismal state of local governments. On the other hand, the public does not even know what institutions like the Commission for Gender Equality (yes, it exists) do, while the work of the Human Rights Commission (HRC) bears evidence of prejudice and inefficiency.

The most marked and most sudden retrogression, however, is noticeable at the Public Protector’s (PP) office. Since Adv. Busisiwe Mkhwebane’s appointment in October 2016, it has become increasingly evident that she won’t emulate the example of her predecessor, Adv. Thuli Madonsela, through a mixture of selective inactivity and actively pursuing more sinister motives.

Her appointment was passionately supported by former President Jacob Zuma and the ANC, and more reservedly by the EFF – never a good sign. She had also ended up working at the State Security Agency (which has strong ties to Zuma) under rather suspicious circumstances.

A public menace

She started off by having the Public Protector office’s TV tuned to the Gupta-controlled ANN7 channel, thereby changing the staff’s ideological orientation. She then began targeting Madonsela in various ways.

However, her true loyalties – and complete exposure as an incompetent pawn – were swiftly revealed by the Absa-Bankorp report. In the report, she requested that Absa pay back R1,1 billion as a result of an apartheid era loan by the South African Reserve Bank (SARB) to Bankorp, Absa’s predecessor. She also took it upon herself to propose that the SARB’s mandate be amended to no longer target inflation, but to focus on social-economic matters – something that is quite beyond her powers and mandate.

She was subsequently defeated in the High Court in Pretoria when her findings were dismissed with costs. Among other, she was also ordered to pay 15% of the SARB’s legal fees from her own pocket.

Barney Mthombothi recently wrote in The Sunday Times that Mkhwebane should have been showed the door immediately after this fiasco. But alas.

Then there was the Estina dairy farm investigation and report. This was a textbook exercise in whitewashing something as scandalous as this. The ANC’s Secretary General and former Free State Premier, Ace Magashule, and Mosebenzi Zwane, former Minister of Mineral Resources, were never mentioned or investigated. She simply encouraged Magashule to investigate provincial officers.

It’s not only what she did that makes her questionable, but also what she failed to do. She frequently implored the media and public to be patient with the investigations into the Guptas and state capture, because these were complex issues that took time to probe. The National Prosecuting Authority (NPA) and the Hawks have also made similar statements.

It is quite understandable that this was the case initially, but to be honest, it’s now becoming rather outrageous. In October Mkwhebane will have been in the hot seat for two years, and we have yet to see how she intends to tackle the Gupta elephants in the room. Neither does she, of her own accord, give feedback on these matters and only says something when prompted by journos to do so. In fact, she does nothing to execute her core constitutional mandate to investigate corruption and irregularities in the public sector. She has also failed on nurmerous occations to take responsibility for her actions before Parliament. This is blatant disdain for the people who gave her the position in the first place.      

Instead of investigating true crimes and irregularities, she busies herself with trivialities. The latest is the order to the Western Cape legislator to take “appropriate steps” against the Western Cape Premier Helen Zille after a tweet in which Zille said that colonialism’s legacy had not only been negative.

Billions of rand were embezzled by the state and state-controlled institutions over the last decade – and yet she is concerned about a tweet that does not even fall within her mandate! Zille will now have the ruling reviewed by a court, and Mkwhebane may very well see a repeat of the Absa debacle. Even if Zille does not go that far, the whole affair remains a sad indictment against Mkwhebane and her office.

Not simply a Zuma lackey

The ultimate question is why she is still being being tolerated in the post-Zuma era. She is an easy target to remove as incompetence and misconduct are qualifying requirements for her dismissal in terms of the Constitution. The National Assembly, the ANC and President Cyril Ramaphosa can certainly have her removed without much ado.

And yet she is still in office and continues to unabashedly abuse her position by grinding axes and covering up malfeasance, while there are no real indications that the ANC, as the largest political party, wants to get rid of her (their support is crucial in achieving this). The Zille debacle is instructive in this regard. The ANC keeps Mkwhebane in this important position to get to opponents like Zille and the DA, and conceal their own transgressions. They know that if the process to appoint a new PP starts all over again, this may lead to the appointment of someone similar to Madonsela. Another question revolves around what she knows about the ANC higher-ups. Emphatically, her removal is a risk that they will not want to venture before next year’s elections (or indeed at any other time).

The best for them and her is to keep her in her post (and loyal) and for the unholy alliance between her and the ANC to continue until her term expires in 2023. And this is most probably what will happen, unless the public, opposition parties, civil society and media start to agitate much harder for her removal.

Dr Brink is Strategic Advisor for Community Affairs at AfriForum.