Adv. Mkhwebane merely played the hand she was given

In August, former Democratic Alliance leader, Tony Leon berated current party leader, Mmusi Maimane, for having asked Public Protector Adv. Busisiwe Mkhwebane to investigate President Cyril Ramaphosa over the Bosasa donation to the CR17 campaign and related matters.

Leon’s remarks came just a month after Adv. Mkhwebane made adverse findings against Prsident Ramaphosa. He chastised Maimane for accepting the findings “at face value”.

Maimane, as leader of the opposition, lodged the complaint in terms of the Executive Members’ Ethics Act (EMEA). Another complaint came from the Economic Freedom Fighters Chief Whip, Floyd Shivambu.

Leon, who in December 2017 tweeted that he knew of a property owner who allegedly donated some R30m towards the CR17 campaign and that the generous donor might have had second thoughts after President Cyril Ramaphosa made known his views on the expropriation of land without compensation, was echoing the sentiments of his successor, Helen Zille.

Speaking to the Cape Town Press Club in July, Zille told journalists that Maimane should not have turned to the Public Protector about the President’s indiscretions.

To paraphrase Leon, his utterances, should not be taken at face value. Along with Zille, he commands a lot of influence and thus his views have what it takes to shape the perceptions of large sections of the population.

Any effort on his part to create doubt in the minds of the public about a Public Protector report would certainly find favour with a section of society.

This may explain why certain people in political circles, civil society, the media and the public at large have seemingly adopted the ill-conceived position that public accountability must be administered selectively.

This disturbing trend, which first emerged when Adv. Mkwhebane directed that steps be taken to claw back the R1.125million in interest owed for the illegal loan given to Bankorp by the Reserve Bank in the twilight days of apartheid, appears to be aimed at projecting certain institutions and members of the Executive arm of government as winged and haloed.

According to this twisted view, allegations of wrongdoing against this apparently virtuous lot must be summarily discarded even when the law dictates otherwise.

If you dare to go against the grain, as did Adv. Mkhwebane, you are seen as scuppering the clean-up of State-Owned Enterprises, undermining the fight against corruption. You are vilified as a governing party factionalist, hell-bent on “targeting” those bringing about reforms and stability in public sector governance systems.

For that, you must be branded incompetent and hounded out of office. Unfavourable review decisions against some of your findings are brandished as proof of your ineptitude. That you are not the first Public Protector to have the courts find against you is conveniently thrown out the window.

Incidentally, the rumpus over investigations into Bosasa and “Rogue Unit”, among others, comes at the time when Adv. Mkhwebane is crisscrossing the country to workshop Members of the Executive about the Executive Code of Ethics.

“The Code expects you to act like saints,” she told Premiers Stanley Mathabatha, Oscar Mabuyane and Sihle Zikalala and their cabinets in June, July and September respectively. Indeed, the Code holds Presidents and their deputies; Ministers and their second-in-command; Premiers and Members of Executive Councils to angelic standards.

For instance, it has provisions that prohibit Cabinet members at national and provincial levels from undertaking any other paid work; exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests and using their positions or any information entrusted to them to enrich themselves or improperly benefit any other person, among other things.

But what many, including critics in political circles, civil society and the media, tend to miss is that the EMEA imposes certain non-negotiables on the Public Protector.

First, out of the entire arsenal of governance and oversight institutions in the public sector, only the Public Protector must receive complaints about breaches of the Code of Ethics, which is a creature of the EMEA.

Second, only Members of the Provincial Legislature (MPL) and Members of Parliament (MP) can lodge complaints of the alleged breaches of the Code and, on receipt of the complaints, the Public Protector must investigate and conclude such investigations within a month.

The effect of this is that MPLs and MPs, often those who sit on opposition benches, can take their political rivals in the Executive to task using the Public Protector, who must investigate and “prioritise” such investigations in line with the legally-imposed 30-day deadline.

From the outside looking in, a regular member of the public would no-doubt see a Public Protector who has entered the political arena, doing the bidding of the opposition and “rushing” to conclude an investigation at the expense of complaints lodged by ordinary people.

Unfortunately self-serving politicians, who know better, opportunistically fan the flames of these misconceptions. After this comes the name-calling, the insults and threats of impeachment.

The pertinent question is: how should Members of the Executive – who have a constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness – deal with the institution’s findings? Perhaps we must look to former President Nelson Mandela for moral guidance.

When she addressed Premier Mabuyane and his team in July, Adv. Mkhwenae recalled how President Mandela, despite his occupation of high office, submitted himself to accountability processes whenever his conduct was under scrutiny. She referred to the precedent that was set in 1998 when Madiba, as a sitting Head of State, took the witness stand in the Pretoria High Court.

He had been summoned to appear before Judge William de Villiers in connection with his decision in 1997 to establish a commission of inquiry into the affairs of the South African Rugby Football Union, including allegations of racism, corruption and nepotism. Adv. Mkhwebane, told the meeting that being held to account was never a source of irritation to President Mandela.

“Even when his own supporters saw his appearance in court as humiliation, President Mandela was not offended. Instead he saw his attendance of the proceedings as a sign of respect for the administration of justice,” she said.

It is going to be important for the public to read Adv. Mkhwebane’s reports for themselves rather than relying on propaganda from the likes of Leon and Zille. They will also need to familiarise themselves with sections 96 and 136 of the Constitution, the EMEA and the Executive Code of Ethics.

There, they will realise that Adv. Mkhwebane merely played the hand she was given. She did not go around canvassing opposition politicians for the complaints that led to the findings she is being lambasted for. She was approached in terms of the law and entertained the complaints as the law requires.

During the investigations, she came across overwhelming evidence of wrongdoing, tested it and proceeded to make findings before taking what she deemed to be appropriate remedial action. Any other rational Public Protector faced with the same facts, evidence and circumstances would have undoubtedly arrived at the same conclusions.

*Oupa Segalwe is spokesperson of the Public Protector