Public Protector advocate Busisiwe Mkhwebane Picture: Henk Kruger African News Agency (ANA)
By Professor Sethulego Matebesi
The recent suspension of Advocate Busisiwe Mkhwebane from the office of the Public Protector by President Cyril Ramaphosa has once again thrust the anomalies that have confronted this key state institution to the fore.
I cannot agree more with the statement that ‘President Ramaphosa and Advocate Mkhwebane are both obligated to act in the best interest of the country’. The statement – made after Mkhwebane’s suspension – is not unusual because South Africans are accustomed to political rhetoric without substance.
If there are doubts about this assertion, we should not look further than these vexing questions: Why is the office of the Public Protector so highly politicised? Is this primarily an outcome of the conduct of the leaders of this office?
The legacy of Advocate Thuli Madonsela
Numerous media reports of the seven-year tenure of Advocate Thuli Madonsela as Public Protector provides a glowing account of her performance. That she won the Transparency International’s annual Integrity Award in 2014 is a testimony of her pedigree for protecting the interests of the South African public.
Notably, many citizens were not surprised by various headlines that aptly described Madonsela’s resolve to ensure that the office is accessible to ordinary citizens while undertaking her work without fear or favour.
One of many headlines – No 2nd term for Madonsela, opening way for another fearless force for good – signalled the pressure on Madonsela’s successor.
Fast-forward to the past four years, and despite the mixed reactions to the appointment of Mkhwebane, the overriding headlines have been about her shortcomings. These shortcomings include the numerous unsuccessful battles she had to defend herself in court.
But what is certain about the tenures of both Madonsela and Mkhwebane is that the office of the Public Protector has become highly politicised. In fact, political interference during the past two decades has become an existential threat to South Africa’s constitutional democracy. The dawning awareness is that the office of the Public Protector has become a battleground for politicians threatening our democracy.
What is telling about the two public protectors, though, has been their ability to use countervailing power to thwart attempts by the political elite to weaken this Chapter 9 institution for nefarious reasons. What will it take to produce a less politicised office of the Public Protector? I am not surprised by the chain of events facing the current Public Protector. Despite the public assurances about the independence of Chapter 9 institutions, we have witnessed how these institutions have been used to fight the battles of the political elite. This is evident in cases reported by political leaders many years after they happened.
In his classic text, The Wretched of the Earth (1961), prolific writer, Frantz Fanon, hypothesised how political leaders in the post-colonial period would advance their personal interests over those of the citizens.
But why are we still talking about colonialism? Has South Africa not been freed – albeit politically only – from colonialism? There is, of course, much more that could be said about the past political dispensation in South Africa. But the post-apartheid dispensation in the country has thrust upon citizens a kind of leadership that still has to grapple with a simple idea: to respect the rule of law and constitutionally mandated institutions.
As things stand, Advocate Mkhwebane will remain suspended until the section 194 process in the National Assembly has been completed. Section 194(3)(a) states the President ‘may suspend a person from office at any time after the start of proceedings of a committee of the National Assembly for the removal of that person.’
While I agree with the assertion that the President used his prerogative to suspend Mkhwebane, I disagree with the assertion that her absence will not impede the progress of pending or current investigations. In one way or another, the work of the office of the Public Protector will be affected by the suspension of Mkhwebane. This is the kind of action South Africans want to see the President take consistently when dealing with other state organs. Overall, systemic political interference in this office will continue. And the consequences will be far-reaching.
Therefore, there is a need to revisit the foundational principles of the office of the Public Protector to ensure that its leadership is centred around ethical leadership that does not cower to political pressure.
Prof Matebesi is Associate Professor and Head of the Department of Sociology at the University of the Free State.