Picture: Armand Hough/African News Agency (ANA) – The first day of suspended Public Protector Busisiwe Mkhwebane's parliamentary impeachment hearing in Parliament on July 11. Six years ago when Advocate Busisiwe Mkhwebane took over the reins as Public Protector, she could never have imagined that she would ever be back to face impeachment, before that very same Parliament that she had won over in 2016, the writer says.
By Kim Heller
“The doomed queen approached the black-draped stage on which she was scheduled to die. Eyes straight ahead, back rigid and head high, she paused at the foot of the steps leading to the scaffold. Reaching the platform, the 44-year-old queen was directed to sit in a chair. Looking about the Great Hall of Fotheringhay Castle, she saw the crowd gathered to witness her demise.”
This extract from Off with her head! The execution of Mary, Queen of Scots, 1587, by Michael Farquhar of the Washington Post, continues, “More than 100 people were riveted by the unfolding spectacle. Her eyes met the hooded axe man dressed entirely in black, the instrument of his trade lying on the floor nearby.
The warrant for the execution of Mary, Queen of Scotland, was read aloud, signed by her cousin, England's Queen Elizabeth I. The end of a tumultuous life was approaching rapidly on this cold February morning. This was to be an unprecedented execution.”
Many, many ages ago, in a bloody game of royal rivalry, Mary was accused of being part of a plot to assassinate Queen Elizabeth I and found guilty of treason. The betrayal of the crown carried with it the ultimate punishment, and Mary, Queen of Scots, had her head chopped off, in one of the bloodiest of executions history has witnessed.
The present day “off with her head” proceedings against Advocate Busisiwe Mkhwebane is a spectacle of majestic scale, as the stage is set for toppling her as South Africa’s Public Protector. From the very beginning, the DA wanted Mkhwebane’s head on a platter, and has pushed hard for Parliament to give her the chop. And as in the gruesome beheading of Mary Queen, the crowd has now gathered to bear witness to this brutal act. In the front seats are the zealous DA protagonists, the bloodthirsty media, and the aggrieved and rancorous VIP’s who Mkhwebane dared to investigate. In the back seats, sits the self-muted ANC.
Queen Mary’s execution was unprecedented. So too, is the current impeachment inquiry into Busisiwe Mkhwebane’s fitness to hold office. It was the DA who hurriedly prepared the rules for such an inquiry while the ANC appeared to look on in passive acquiescence. The DA’s chief whip, Natasha Mazzone argued that this inquiry was necessary to ensure that the ‘interests of the vulnerable’ were protected above the ‘the interests of the politically connected’.
But unlike Mary, Queen of Scots, Mkhwebane did not commit any traitorous act, or betray any crown or cause. Neither does it appear, as if she has betrayed the interests of the vulnerable as the DA would have us believe. By all accounts, Mkhwebane has spent the lion’s share of her time focusing on and resolving matters that have plagued the neediest and most neglected of people and communities. And despite the angry cut-throat allegations of political bias, there is no hard cut evidence that Mkhwebane has acted in a prejudiced or partisan manner on any matter before her. Accusations of partisan political allegiance is a popular bloodied dagger, in the game of power, for all three of the Public Protectors who came before her were also accused of political bias.
Six years ago when Advocate Busisiwe Mkhwebane took over the reins as Public Protector, she could never have imagined that she would ever be back to face impeachment, before that very same Parliament that she had won over in 2016. In a field of fifty-nine candidates competing for the position of Public Protector, including some serious heavyweights and senior high court judges, Mkhwebane emerged as the candidate of choice for all the political parties in Parliament, baring the DA who voted against her and COPE, which abstained from voting.
At the time, Corruption Watch’s David Lewis, remarked about the Parliamentary process as constitutional and transparent, saying “the entire country could be satisfied that the final candidate got the job on merit and not for any other reason”.
Dr Makhozi Khoza, the chairperson of the adhoc committee that was established to appoint the Public Protector was quoted as saying, “All members that spoke on Advocate Mkhwebane’s candidature agreed that her interview was superb, a marvellous communicator and her experience as former investigator in the Office of the Public Protector worked in her favour. Members considered these attributes, over and above her having met all other requirements dictated to by the legislation.”
Six years later, Mkhwebane appears to be faring well, with almost 59,000 completed cases, over 2,000 public education activities, and two back-to-back clean audits. So why is it that she is facing the axe?
If Mkhwebane is being persecuted because some of her rulings have been overturned, it is unreasonable. Technical errors, missteps and overreaches can and do occur, on the neck of human fallibility. That cases are overturned is not exceptional. The Supreme Court of Appeal has had many cases overturned by the Constitutional Court. In the matter involving Gordhan vs Public Protector and Others, Judge Potterill cuttingly described Advocate Mkhwebane’s rulings as “nonsensical”. But the very same Potterill had her convictions and sentences set aside by the Supreme Court of Appeal in Gumbi and Others vs the State. The SCA noted Potterill’s lack of compliance with basic criminal procedures.
The ‘off with her head’ squad would have us believe that most of Mkhwebane’s cases have been upturned when it is in fact just a small percentage of the hundreds of investigative reports she has issued. Of 412 investigation reports, only 17 have been reviewed and set aside by the courts. What never forms part of the word count of newspaper columns is that while Public Protector Advocate Busisiwe Mkhwebane has been unsuccessful in defending eleven matters, she has successfully defended eleven other cases, and costs have been awarded in favour of her on 11 occasions and against her on 10 occasions.
Previous Public Protector’s Lawrence Mushwana and Thuli Madonsela also had their rulings set aside and several of their reports, like Mkhwebane’s, were heavily criticized.
But unlike her predecessor, Advocate Mkhwebane has been treated with disdain. In his well-balanced thought piece, A Tale of Two Public Protectors: Separating Fact from Fiction, Advocate Vuyani Ngwalana, writes how Madonsela and Mkhwebane have both been prone to moments of wisdom and moments of foolishness. Ngwalana writes, “The difference is that – for reasons about which it would be foolish to speculate – Madonsela’s moments of foolishness have drawn little or no censure, while Mkhwebane has virtually been burnt at the stake for hers, even by people who have not bothered to read her reports, relying instead on media reports or commentary as their only source of information for the contents of the Public Protector’s reports.”
Advocate Ngwalana points to how in one of her provisional reports, Madonsela took remedial action in which she instructed the head of the SIU to conduct a forensic investigation into serious maladministration in connection with the Vrede Dairy Farm Project. Ngwalana writes, “this remedial action was legally incompetent because Madonsela purported to issue an instruction to the SIU. She had no power to do that. No one attacked her competence for this. It did not even make page 5 of the Sunday tabloids”...
Ngwalana writes about how in her final report on the Vrede Dairy Farm project, Mkhwebane removed Madonsela’s instruction to the SIU on conducting a forensic audit. “Mkhwebane did so because she knew she had no power to instruct the SIU, as the Full Bench of the Pretoria High Court was to confirm a week later,” writes Ngwalana. “Instead of commending her, the official opposition attacked her for this in court papers. The media cheered on. No apology was extended to Mkhwebane after the Full Bench had confirmed the correctness of her legal position. Not even an acknowledgment.”
Dr John Guy, a British historian wrote, ‘Mary Queen of Scots, has been as much ‘a victim of the pen as the executioner’s ax.” Guy writes of how Elizabeth succumbed to evidence fed to her by advisers and sentenced Mary, her cousin, to execution.”
Mkhwebane has like Mary, been a victim of the pen. Media attacks against Mkhwebane have been brutal. One cartoon depicted the Public Protector as beheaded, dismembered and eagle-spread on the road after a truck portraying the Constitutional Court supposedly drove over her.
In stark contrast to the flurry of media portraits of Mkhwebane as unfit and incompetent, a different picture is emerging as testimony unfolds at the Parliamentary Inquiry. When UDM President Bantu Holomisa asked Vussy Mahalangu, the former CEO in the Office of the Public Protector about Mkhwebane’s competence, Mahlangu responded by saying that she is competent, extremely hard working and referred to the two clean audits she achieved. Senior manager in the Office of the Public Protector, Futana Teble, said that it would be unfair to say that the quality of reports issued under Mkhwebane were compromised despite several being set aside by the courts.
So once again, the question arises, why is Mkhwebane is facing the axe? The answer, in my opinion, is to be found in the fact that from the onset she did not follow the script. She dared to touch the powerful and protected. A thorn in the side, Mkhwebane has to be undermined and ultimately removed, by whatever means.
The African Ombudsman and Mediators Association (AOMA), a network of Public Protector-like institutions, of which Mkhwebane is President, issued a statement in support of her. In the statement, the AOMA raises concerns about the suspension of the Public Protector and the impeachment process ‘noting that these developments are a direct consequence of investigative work done in a professional capacity by the Office of the Public Protector which should enjoy functional immunity from threats, reprisals or difficult working conditions as a minimum guarantee for institutional independence’.
Locally, there has been a deafening silence from legal scholars, civil societies, advocates for justice and women’s groupings on the persecution of Mkhwebane. The deadly silence from the ANC, as they bear witness the to horrific, almost surreal execution of a highly accomplished black woman, is both shocking and unforgivable.
The executioner stepped forward and knelt before Mary, Queen of Scots. "Forgive me," he said. "I forgive you and all the world with all my heart," she answered with a smile, "for I hope this death will make an end to all my troubles. Three axe blows later, she was dead, her severed head lofted high as a warning to those who defied Elizabeth.
Heller is a political analyst and author of ‘No White Lies: Black Politics and White Power in South Africa.’
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