Zambian Public Protector claims SA parliamentary probe into Busisiwe Mkhwebane is ‘odd’

30 Jan 2023

Zambia’s Public Protector, Advocate Caroline Zulu-Sokoni, has offered the opinion that the parliamentary impeachment inquiry into her suspended South African counterpart, Busisiwe Mkhwebane, is ‘odd’.

Caroline Zulu-Sokoni, who has been the Public Protector in Zambia for almost 20 years, testified in defence of SA’s suspended Public Protector, Busisiwe Mkhwebane, at the resumption on Monday of the Section 194 inquiry into Mkhwebane’s fitness to hold office.

Meanwhile, former Public Protector Thuli Madonsela has indicated that as a “law-abiding citizen” she will be attending the inquiry as she had a “duty to comply” when subpoenaed.

On Monday, Zulu-Sokoni told the committee she found it “odd” that employees of a Chapter 9 institution would “take their gripes” to Parliament.

In so doing, she obliquely supported Mkhwebane’s legal representative Advocate Dali Mpofu’s stance that almost all the witnesses who testified were “disgruntled employees” with a score to settle.

“I don’t know how the system is here in South Africa. In my office, they are all civil servants … if they were all to testify against me it would be flying against all the principles in the book regarding the functional autonomy of the ombudsman,” said Zulu-Sokoni.

She added that every institution experiencing “staff turnover” issues would have people who “have issues with their supervising officers or heads of institutions”.

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What about the courts?

In response to Mpofu’s statement that 90% of the charges the inquiry is probing against Mkhwebane were based on court judgments, Zulu-Sokoni replied: “There is no reason why the court findings should be taken up by another arm of government.”

However, the South African Constitutional Court, in February 2022, ruled that parliamentary proceedings against Mkhwebane could proceed, that she could be represented by a lawyer and that judges could be part of an independent panel.

It was that panel, led by retired Judge Bess Nkabinde, which recommended that Mkhwebane face an inquiry related to various alleged instances of misconduct. The original complaint was lodged by the country’s largest opposition party, the Democratic Alliance.

This came after Mkhwebane suffered several defeats in high-profile court matters which also led to her facing criminal charges for perjury for failing to disclose secret meetings with the State Security Agency as well as former president Jacob Zuma.

Read more in Daily Maverick: “Section 194 inquiry into Public Protector impeachment starts, litigation minefields loom”

Zulu-Sokoni, whom Mpofu described earlier as “Ombud Royalty”, said that disgruntled employees should go to the Labour Court or seek other relief. Earlier, Mpofu said Zulu-Sokoni’s testimony would provide “context” on ombudsmanship, quoting the Venice Principles drafted by the European Commission while also sketching the history of ombud institutions.

Mpofu, while stating that South Africa’s Constitution was mere “legislation”, spent much of the day relying heavily on and referring to the Venice Principles as if these formed the bedrock of some immutable law.

The Venice Principles set out core values of independence, objectivity, transparency, fairness and impartiality for the office of an ombud.

They also set out how an ombud should not engage in political or other activities that are in conflict with their independence. A self-regulatory code of ethics should bind the office of an ombud and their staff, the Venice Principles state.

This section, however, appeared to have escaped Mpofu’s scrutiny as he did not raise the issue of political meddling when he led Zulu-Sokoni through her testimony.

With regard to terms of office, the 20-year incumbent in Zambia said fixed terms of office guaranteed independence and that endlessly renewable contracts could pose a threat.

“So, if someone says if you take an investigation in this particular way we will give you another term of office … there should be no reason for a term of office to be disturbed or for an ombud to be disturbed or enticed or distracted to compromise his position.”

She was a proponent of fixed or renewable terms of office of between five and seven years.

Fiddling with the Constitution

With regard to Mkhwebane’s attempt at slipping in a back-door amendment to the Constitution with regard to the mandate of the SA Reserve Bank, Mpofu said this had annoyed “big capital”.

The Venice Principles, said Mpofu, stated that an ombud should be allowed to recommend legislative changes. Zulu-Sokoni said that a Public Protector should be able to make a recommendation and Parliament would then have to follow its own procedures unless a report by the Public Protector was challenged.

Zulu-Sokoni opined that Mkhwebane should not have been subjected to personal costs orders or criminal prosecution, as this sounded like “victimisation”.

With regard to the Constitution, Zulu-Sokoni said South Africa had opted for a constitutional democracy and that its Constitution was a model in the world with regard to human rights and ombudsmanship.

“What has been going on here in South Africa has been very telling on the [African] continent,” she added.

She said that giving an ombud or Public Protector binding powers made the office vulnerable to constant litigation by those who take reports on review.

“It becomes expensive for the ombud as a budget has to be created for litigation,” she said.

The inquiry has heard that Mkhwebane spent R147-million on legal costs during her six-year tenure, with Mpofu himself receiving R13-million.

Read more in Daily Maverick: “Mpofu says his Public Protector R13-million legal bill is 'peanuts' and he could have charged twice the amount”

Corrected figures for Mkhwebane’s expenses indicate that advocates Vuyani Ngalwana and Muzi Sikhakhane had received R3.4-million and R3.9-million, respectively.

Her personal firm, Seanego Attorneys, earned R55-million on 24 matters and bagged the bulk of work from Mkhwebane. She also spent R5.9-million on CR17 litigation.

Mpofu suggested the only way to escape the “trap” was by amending the Constitution — to which Zulu-Sokoni replied she was not an expert on South African constitutional law.

The inquiry continues on Tuesday. DM

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What about the courts?

Fiddling with the Constitution