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Preventing manipulation of the institution requires vigilance

Advocate Busisiwe Mkhwebane was appointed by former president Jacob Zuma. In the history of the Office of the Public Protector, no one has been criticised as much for incompetence by a court of law, says the writer. Picture: Jacques Naude/African News Agency (ANA) Archives

Advocate Busisiwe Mkhwebane was appointed by former president Jacob Zuma. In the history of the Office of the Public Protector, no one has been criticised as much for incompetence by a court of law, says the writer. Picture: Jacques Naude/African News Agency (ANA) Archives

Published May 21, 2022

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By Zelna Jansen

The Office of the Public Protector is established by section 182 of the Constitution and its mandate is to: investigate any conduct in state affairs or in the public administration that is alleged or suspected to be improper; report on that conduct, and take remedial action.

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In terms of the Constitutional Court judgment of the Economic Freedom Fighters (EFF) v the Speaker of the National Assembly (NA) and others (2016), it was declared that the remedial actions are not merely recommendations that can be ignored. They are binding.

In hindsight, perhaps this interpretation gives the public protector too much power? In terms of the Office of the Public Protector’s annual report for the 2019/2020 financial year, it has conducted 237 outreach programmes and with a budget of R181 million, the investigations finalised 11 643 cases. This allowed people to lodge complaints about service delivery and abuse of state power.

The public protector, therefore, assists communities at the grassroots to hold the government accountable. Judge Selby Baqwa was appointed by then-president Nelson Mandela as the first public protector. He was known to have expanded the investigative skills capacity of staff and initiated outreach programmes to raise awareness about the Office of the Public Protector and its functions.

He was, however, regarded as “toeing the line”, particularly in the investigations into former minister Nkosazana Dlamini Zuma for flouting tender processes, misusing funds, and misleading Parliament.

Baqwa was accused of shielding Dlamini Zuma from grave consequences by blaming a mid-level official. Advocate Lawrence Mushwana succeeded Baqwa. He was appointed by then-president Thabo Mbeki.

Baqwa was known for not speaking out on crucial matters relating to misconduct in the government and for making soft recommendations in cases involving high-profile politicians.

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For example, in the 2005 Oilgate scandal, involving Phumzile Mlambo-Ngcuka, in her role as minister of Minerals and Energy Affairs, the Supreme Court of Appeal (SCA) found that the basic principles of investigations, at the heart of the Office of the Public Protector’s mandate, was lacking.

The SCA stated that no investigations were conducted into the substance of the complaints and ordered Mushwana to undertake a full investigation. Advocate Thuli Madonsela was appointed by then-president Jacob Zuma.

She issued a report on state capture. One of the recommendations was to appoint a commission of inquiry into state capture. After several court battles, the commission was eventually established and documented how state capture was implemented.

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Advocate Busisiwe Mkhwebane was appointed by Zuma. In the history of the Office of the Public Protector, no one has been criticised as much for incompetence by a court of law. Misconduct, and interference by Mkhwebane in certain investigations, were alleged by some employees of the Office. Affidavits alleging this was sent to the Speaker.

A panel was established by the National Assembly and found prima facie evidence of incompetence and misconduct. The DA subsequently tabled a motion for the removal of the public protector. This was followed by applications by Mkhwebane for interdicts and rescission of judgements to stop the impeachment process. These applications were dismissed, paving the way for Parliament to continue with the process.

President Cyril Ramaphosa also issued a notice, asking Mkhwebane to provide him with reasons why he should not suspend her in terms of section 194(3)(a) of the Constitution.

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Mkhwebane has also been accused of using the Office to advance the agenda of a certain faction in the ANC. This leads one to ask, should the public protector be politically affiliated? There seems to be a resounding no. However, let’s look at how the public protector is appointed.

When a post becomes vacant, Parliament calls for submissions, conducts interviews and submits a report to the National Assembly recommending a candidate. Once adopted it is referred to the president, who appoints the public protector. Although processes are transparent, political discussions in a party are not.

It is possible that the president could convey his choice to the Speaker and the chairperson of the committee conducting interviews. A 2017 Constitutional Court judgment on the process of impeaching the president, declared that members of Parliament took an oath to uphold the Constitution.

This is above their affiliation to their political party and they must therefore vote according to their conscience and information. However, if Zuma were the sitting president, would Parliament have followed through with the impeachment process of Mkhwebane?

This is one of the reasons why a more activist Parliament is essential to have oversight and hold accountable those that do wrong. The mandate of the Office of the Public Protector and the potential harm it can inflict on a political party means that even if the DA or EFF were governing the country, they too would appoint a public protector sharing their political views.

Civil society must therefore be vigilant about who is appointed as public protector, or in any institution charged with holding the government accountable. The reason is that any party will be tempted to manipulate and control institutions mandated to guard against its governing powers.

* Jansen is a lawyer and CEO of Zelna Jansen Consultancy

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