South Africa’s Public Protector, Busisiwe Mkhwabane is not fit for office and her appointment has been left wanting by those involved in the process. Mphuthumi Ntabeni examines these statements and finds this critical office has been left wanting.
The Catholic Parliamentary Liaison Office (CPLO) hosts roundtable discussions that are always apt and relevant. spotlight.africa recently attend one which sought to evaluate the work of the new Public Protector. The speaker’s list seemed balanced and comprehensive enough: Ms Nthoriseng Motsitsi, the executive manager on the office of the Public Protecto) was there to give the usual feedback on the achievements of her office in the past twelve months; Mr Lawson Naidoo, the executive director for the Council for the Advancement of the South African Constitution, was there to read us a riot act and praise where appropriate; and Dr Makhosini Khoza, former chairperson of the parliamentary ad hoc committee for the selection of the public protector was present to indicate whether their trust in Advocate Busisiwe Mkhwabane has been vindicated, or if it was misinformed, as the Democratic Alliance – the only party to objection to her appointment – seemed to suggest.
The first disappointment came in the introduction of the of the day. Fr Peter-John Pearson, the director of the CPLO, informed us that the Public Protector’s office had “revoked the participation of its official” the previous day. This attitude worried the attendants, especially since the current Public Protector was appointed on the rallying ticket of interacting directly with the public and stakeholders. It seemed to me that we qualified in that department. The announcement didn’t damper the mood though, nor put a spanner in the wheel of proceedings. If anything, it energised the discussions.
“Scourge of our government”
Mr Naidoo began by drawing our attention to the odd absence of the Institutions Supporting Democracy (ISD), the parliamentary office dealing with Chapter Nine institutions, whose aim is to assist Presiding Officers, Portfolio Committees and the ISDs to have better relationships. It points to the glaring lack of public accountability Naidoo identified as the scourge of our government, and the serious threat to our democracy. Unfortunately the president, Naidoo declared, is not leading by example in this area “if we’re to judge by the evasive manner he obfuscates when answering questions in Parliament”. Sadly his behaviour is allowed, even encouraged, by the presiding officers through their incompetence or political bias. The failure of parliament, which was highlighted on the Nkandla judgement by the Constitutional Court also, begins with lack of strident application of rules and regulations of Parliament, Naidoo said. Our constitution and rules of parliament allows the president, or any member of the executive, to defer a question while obtaining material to satisfactory answer it. But it does not allow them to obfuscate in avoidance of dealing with the substance of the question. The presiding officer is supposed to step in and insist that the reply be concise, substantive and relevant to the question asked. This almost always never happens in the South African parliament. And is the reason why the executive gets away with murder, with the assistance of the parliamentary presiding officers.
Mr Naidoo says the Public Protector office claims to have made eighty four proclamations to the Investigative Unit since 2008, but fails to disclose how many real convictions have been obtained from that. He suspects it is because hardly anyone gets convicted and go to jail; at best settlement deals are made. And this creates the impression that the protector’s work is not effective, and has no real sting. Mr Naidoo congratulated the Public Protector’s office on reducing the backlog of its work, but cautioned that this seems to be only ‘a quantitative shift’, because they do not reveal to the public the stats for previous years, to enable us to make a qualitative comparison. As for the incurred R22 million irregular expenditure, Naidoo was prepared to give the current protector the benefit of the doubt. He suspected part of it was incurred under the previous Public Proctor, Thuli Madonsela. He was concerned with the adverse effects the reduction on consultants has obviously had on report production. He cited the bad report on the Reserve Bank saga as an obvious example.
Mr Naidoo claims the thing that overwhelms the office most is the public expectation that it play a role as an anti-corruption agent. The Public Protector’s office, Naidoo said, was “established to promote good governance of the state, not to act as an anti corruption agent. It simply does not have resources to do that. It would, for instance, require about R30 million t to establish a judicial commission on state capture alone. It just does not have that sort of budget.” To compound its problems, the ruling party MPs have demonstrated hostility towards the office, which led to its requests for budget increases being frustrated.
By way of conclusion, Naidoo, threw the gauntlet to Dr Khoza by stating that her ad hoc committee had erred in waiving the strident legal experience requirements for the candidacy of the protector. It was evident, according to Naidoo, that Adv Mkhwebane was out of her depth; “Frankly, the country doesn’t have a luxury to give her the benefit of the doubt in allowing her to learn on the job.” He believed that if the state had been strident on accountability practices, the Reserve Bank incident alone would have resulted in her being charged with misconduct and asked to appear before the National Assembly. Instead, the Chairperson of Parliament’s Portfolio Committee on Justice and Correctional Services, Dr Mathole Matshekga, was obviously given a political instruction to drop the inquiry on the fitness of the Public Protector to hold office, after he and the committee had agreed to do so.
Public official deceit
Dr Khoza began by disputing that their process of electing the Public Protector was flawed, and not robust enough, as suggested in Naidoo’s talk. But she didn’t give any tangible reasons why she thought so, except that they were more preoccupied with making the process as transparent as possible. We never got to hear the answer to Naidoo’s question as to why the five year legal practice as an advocate was wavered for Mkhwabane.
Dr Khoza went on to give a passionate presentation about the bankruptcy of morals and the Machiavellian standards in our public square. She conceded that her committee was deceived by Mkhwabane’s mercurial tongue even as she maintained that Mkhwabane possessed most of the requirements for the job. She said the ad hoc committee was mostly impressed by her plea for greater public accessibility to the office. When asked if the protector had fulfilled that mandate during the past year Dr Khoza doubted it, “as demonstrated by how she has responded to this invitation. She could have come and used this platform to explain her side of the story. But she has, instead, chosen to demonstrate contempt towards the public she claimed to prioritise.”
Dr Khoza gave a leadership comparative graph. “We’re a nation of extremes if you look at where we started with Mandela and where we are now with Zuma. The current leadership style is antithetical to the aspirations we began with. The same applies with Madonsela and Mkhwabane who has a Machiavellian deceit of eloquence. She deceived all of us, especially me. I feel personally cheated into believing she was the best we could deliver.” Dr Khoza went to quote the Thuli Mandonsela: “To be a politician you need to have a PhD in lying.” She claimed the current Public Protector qualifies as a politician in that sense.
Dr Khoza’s remaining talk was about devising means to detect deceit when appointing leaders and public officials. She made repeated mention of the former SABC CEO Hlaudi Motswaneng as the paradigm of public official deceit. Counteracting the spread of such leadership style, will be our national challenge post Zuma administration. It has cast a dark shadow over government’s executive affairs that’ll not be easy to get rid of. As such, positions like director generals, are now anathema in the eyes of honest officials, because they are seen as career graveyards.
She ended on a positive note, praising our thriving democracy, its free media, independent judiciary – “just about the only arm of government that still takes the duty of public accountability seriously”. She said we must call for the resignation of the Public Protector, because she is not fit for purpose, and showed a serious case of misconduct regarding the Reserve Bank saga. Dr Khoza said we must be prepared to take legal action against the protector, and refuse to abide with the usual practice of giving golden handshakes to dishonourable releases of public officials.
The general consensus at the meeting was that the current Public Protector is not fit for purpose, and has, at least, one serious case of misconduct to answer. No real solution emanated as to how to solve the predicament of Parliament’s politisation of its mandate, and the subsequent failure to hold government and its institutions accountable. There is also a real question of how sustainable it is for the judiciary to carry the burden of public accountability. A suggestion was made that perhaps it is time we serious look at ways of tightening up our parliamentary rules and regulations without necessary going as far as changing our constitution. SA.