The lessons learnt from the process to remove Busisiwe Mkhwebane from office

12 Sep 2023

On Monday, the National Assembly overwhelmingly voted to remove Public Protector Busisiwe Mkhwebane from office on the grounds of incompetence and misconduct. President Cyril Ramaphosa is now constitutionally required, diligently and without delay, to give effect to this decision.

With this vote, the National Assembly belatedly corrected its calamitous decision to appoint Mkhwebane as Public Protector more than six years ago. But I fear that the political parties who supported Mkhwebane’s appointment may well learn the wrong lessons from this fiasco.

Lessons on the appointment of Chapter 9 office bearers

It should not be controversial to point out that the decision by ANC MPs, supported by some opposition party MPs, to appoint Mkhwebane as Public Protector was bad for the office of the Public Protector, bad for the country and its citizens, and, it must be said, ultimately also bad for the politicians who secured her appointment with the aim of using that office to target and discredit their political foes inside and outside the governing ANC.

In the Nkandla judgment, former Chief Justice Mogoeng Mogoeng, in full Pentecostal flight, described the Public Protector as “the embodiment of a biblical David… who fights the most powerful and very well-resourced Goliath… one of the true crusaders and champions of anti˗corruption and clean governance”.

This would only be remotely true if the person appointed to the position was truly independent, fearless and principled.

But this is not enough. A Public Protector cannot be a truly effective anti-corruption “crusader” if he or she lacks basic legal knowledge, is incompetent, acts in a dishonest manner, and then fails to seek proper legal advice, relying instead on the advice of charlatans and political opportunists.

Not only does this lead to scathing court judgments invalidating investigative reports, but it also erodes public confidence in the office of the Public Protector and weakens the authority and political influence of that office.

The politicians who secured Mkhwebane’s appointment must be kicking themselves for selecting her. Had they appointed a knowledgeable and competent ally (one more skilful at hiding their dishonesty) to go after their political foes while shielding members of their own political camp, the office of the Public Protector might have had some success in destroying these perceived enemies and would have done far more damage to our democracy than Mkhwebane did.

Sadly, the National Assembly has only once (and probably by accident) appointed a truly fearless and independent person to the office of Public Protector. This is probably because the appointment requires the support of 60% of the members of the National Assembly, which currently means that ANC MPs have a veto over the appointment.

Given this track record, I worry about the wisdom of the appointment of Deputy Public Protector Kholeka Gcaleka as head of that office.

Gcaleka is far more knowledgeable about the law and far more competent than Mkhwebane, but during her short stint as acting Public Protector, she has not shown the kind of fearlessness one would expect from a “true crusader” against corruption willing to challenge the proverbial Goliath head-on.

Lessons on the effective functioning of parliamentary committees

Not a single speaker opposing Mkhwebane’s removal from office attempted to refute any of the damning factual findings made against her by the Section 194 committee. Instead, they complained about the alleged unfairness of the process followed by the committee. This is somewhat ironic, given the fact that the Section 194 process provided a rare example of a parliamentary committee taking its constitutionally imposed accountability function seriously.

As the Zondo Commission Report pointed out, parliamentary committees have a lamentable track record in holding members of the executive accountable.

Party political grandstanding by MPs from across the political spectrum often bedevil these proceedings, sometimes leaving one with the impression that a committee hearing is for show only; MPs already having had their minds made up for them by their party bosses. (To be fair, this is not always the case, especially when the issue before a committee is not politically divisive.)

The Section 194 process was not without its faults. Too much time was taken up by the testimony of witnesses dealing with minor infractions by Mkhwebane.

Moreover, the absence of ground rules on the exact role of evidence leaders, as well as of lawyers representing Mkhwebane, complicated the job of the chair of the committee, who mostly erred in favour of Mkhwebane and her lawyers. This was ruthlessly, but seldom skilfully, exploited by Mkhwebane and her lawyers in an attempt to turn the proceedings into a political trial of her critics.

Despite these shortcomings, the committee reached the only conclusion it could rationally have reached, given the evidence presented, and given Mkhwebane’s refusal to answer questions from evidence leaders.

Except for the committee members supporting Mkhwebane (who had made clear from the start that their minds were made up), committee members largely refrained from political grandstanding, and more or less seemed to keep an open mind about specific factual disputes. (To what extent a body made up of elected politicians can do so, remains a tricky question.)

We should ask if we can learn anything from this process as we consider ways of fixing some of the problems with the committee system identified in the Zondo Report.

Lessons on lawfare and the funding of legal fees

The Constitutional Court ruling that Chapter 9 office bearers were entitled to full legal representation during the Section 194 process no doubt contributed to the excessive cost of the process (the precise cost is not known, but amounts of up to R160-million were mentioned in the National Assembly debate on Monday) as well as to the interminable delays.

As a result, the Public Protector’s office funded Mkhwebane’s legal cost to the tune of R34-million. Peanuts for some; an astronomical amount for the rest of us.

Mkhwebane and some of her supporters claim that the refusal to fund her legal team beyond this sum amounted to a grave injustice. This is a preposterous and cynical claim. In South Africa, no one (not even the public office bearer of an independent body facing impeachment) has a right to legal representation of their choice funded by the state.

I would be shocked (really shocked, not Cyril Ramaphosa shocked) if any court in South Africa held that the Section 194 process was unfair because the state “only” forked out R34-million for Mkhwebane’s legal fees.

But this is a side issue. The dispute about legal fees raises a larger question about the use of public funds or private wealth to subvert accountability processes. A large chunk of the R34-million paid towards Mkhwebane’s legal fees was used to fund a series of court challenges and applications for the recusal of various individuals involved in the process.

While not all the challenges were entirely meritless, several were clearly hopeless and had no prospect of success. (None of the recusal applications had any prospect of success either.) These challenges were initiated only because the state provided the necessary funds.

The purpose of some of these challenges seemed to have been to delay the process and to use court hearings to gain political sympathy for the then-incumbent Public Protector. This is unfortunately part of a larger trend to demand funding for legal challenges aimed at protecting litigants from accountability.

For me, different lessons can be drawn from this aspect of the process.

First, there is an urgent need to adopt clear guidelines on when public office bearers will be entitled to state funding to cover their legal fees. Such guidelines would also need to make clear how much funding would be available and would need to make clear what the funds could be used for.

This is a practical as well as an ethical problem. Practically, the absence of guidelines leads to abuse as litigants often use the issue of funding to delay proceedings against them, leading to long delays. Ethically, it seems unconscionable that the state would pay R34-million for one person’s legal fees when it could have used that money to, say, feed 45,000 children for a month.

Second, it is striking to me that a large chunk of the available funds in this case was used for the purposes of lawfare, a term I use here to mean the strategic use of legal proceedings to intimidate opponents or gain a political or legal advantage over them, including attempts to get courts to resolve contentious political disputes.

As a result, the cost spiralled out of control and the process dragged on for far too long.

But I wonder if the litigation and threats of litigation may not also have helped to ensure the fairness of the process – at considerable cost. In this view, while the careful and considered manner in which the chairperson of the Section 194 committee dealt with both the reasonable and absurd complaints about the process did at times threaten to derail the entire process, it might have also enhanced the credibility of the process and removed any doubt in the minds of reasonable people about the fairness of the outcome.

Even if this is correct, I do not believe it would warrant the unlimited funding of legal challenges launched by public office bearers. But it does suggest that in different circumstances (for example, where an attempt is made to impeach the Public Protector for no valid reasons), litigation by civil society groups might be useful to prevent abuse.

A last word on law, facts and politics

The story of the rise and fall of Busisiwe Mkhwebane is in many ways a curious and sad one. But it is also, looking beyond the individual, a rare good news story in which the responsible institutions more or less did what they were constitutionally required to do.

Despite their limited power to do so, courts reviewed and set aside many of Mkhwebane’s irrational and incoherent reports. (Courts have no power to overturn reports merely because they disagree with the factual findings or legal arguments in a report.) In these judgments, the facts and the law almost always mattered much more than the identity or political affiliations of the person against whom the Public Protector made adverse findings.

It should not be, but I find this insistence that facts, law and the quality of one’s reasoning matter, quite encouraging.

While it will not, it ought to shame the many politicians and other citizens who project their worldview on to others and therefore believe that facts, law and principles are irrelevant and that every legal decision or piece of analysis is therefore necessarily based on whose “side” the person is on or on who paid them. DM

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South Africa

Lessons on the appointment of Chapter 9 office bearers

Lessons on the effective functioning of parliamentary committees

Lessons on lawfare and the funding of legal fees

A last word on law, facts and politics