Tomorrow, all eyes will be on parliament as a ground-breaking impeachment process against suspended public protector Busisiwe Mkhwebane gets under way. It will be the first impeachment of a public official in democratic South Africa – and hopefully not the last.
On the eve of her impeachment, odds appear heavily stacked against Mkhwebane. It follows a week in which she was dealt several blows by acting public protector Kholeka Gcaleka, who withdrew the institution’s funding of Mkhwebane’s several (last-ditch) court attempts to halt her impeachment.
Mkhwebane’s impeachment is significant in several aspects.
The public protector’s office is regarded as the most powerful institution among Chapter 9 institutions.
Its role is even more significant as its remedial actions – unlike other Chapter 9 institutions – are legally binding, except in situations where they are successfully challenged in court, as we witnessed in many of Mkhwebane’s questionable findings.
The impartiality and fundamental knowledge of the law are critical factors in the success and legitimacy of this important office. They must be procedurally and substantively justified, and not found wanting, as we have witnessed under Mkhwebane’s leadership.
In assessing Mkhwebane’s competence, it is worth reflecting on some of her decisions that have led to the current state of affairs. From the moment she walked into that office, Mkhwebane appears to have allowed herself to be consumed more by ANC factional battles than the integrity of her office.
Warning signs of Mkhwebane’s ineptness started as early as 2018, when she ordered Absa (in the Bankorp investigation) to pay R1.25-billion to the government and recommended – as remedial action – that the South African constitution be changed.
Even her report on the Gupta-linked Estina dairy failed to meet the required standards expected from such an important office.
The Estina report was described by the courts in unsavoury terms such as “flawed”, “negligent” and a “dereliction of duty”.
The above are just a few examples in a series of Mkhwebane’s blunders, not to mention her report on donations made to the CR17 campaign, and on an investigating unit at the South African Revenue Service, which drew the ire of the country’s senior judges, who did not mince words as they questioned her “quality of reasoning”.
Mkhwebane’s failures must, however, serve as a lesson to the ANC and its MPs to henceforth stop putting party loyalty ahead of professional integrity when making crucial appointments that have an impact on good governance.
Mkhwebane has, by all accounts, brought this important institution under a level of constant public scrutiny never before experienced since the establishment of the public protector’s office.
It is our sincere hope that the process of Mkhwebane’s impeachment is going to herald a new era of public accountability.
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