This week, the DA took the decision to motivate for the removal of Busisiwe Mkhwebane as Public Protector. We believe this is in the best interests of the people of South Africa who, more than ever before in our democracy, need protection from a highly corrupt state. Sadly, Mkhwebane has chosen to side with, rather than fight, corruption.
On Monday, the South African Reserve Bank filed an affidavit revealing that Mkhwebane conspired with the Presidency and the State Security Agency (SSA) to achieve a Constitutional amendment to the mandate of the Reserve Bank. The Constitution envisages an independent Reserve Bank mandated to protect the value of the currency. Mkhwebane and her Zupta co-conspirators would apparently prefer a State Bank able to print money.
This attack on the Reserve Bank’s independence may be in retaliation for the Bank’s role in the closure of Zupta bank accounts. Ostensibly, it is to enable the bank to achieve “socio-economic transformation”, but more likely, it is to fund various nefarious Zupta activities. Whatever the reason, it is clear that Mkhwebane has an ulterior motive. And it is clear she is not acting independently.
In the Nkandla judgement, the Constitutional Court went to great pains to establish the central role of the Public Protector in strengthening our constitutional democracy. The Public Protector’s role is to counterbalance the power of the executive; to stand with the people when the government turns on them and abuses its considerable power.
“The Public Protector is therefore one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance. The tentacles of poverty run deep in our nation. Litigation is prohibitively expensive and therefore not an easy option for the average citizen. For this reason our Constitution conceived of a way to give a voice especially to the poor and marginalised, and teeth that would bite corruption and abuse effectively. And that is the Public Protector. She is the embodiment of a biblical David, who fights the most powerful and very well-resourced Goliath. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.”
The Court stressed that this crucial objective demanded two defining characteristics for the institution: authority and independence. It established the power of the Public Protector to hold the executive accountable, ruling that the Public Protector’s findings are binding. But it also emphasized that to be effective, the Public Protector has to be independent - able to act without fear, favour or prejudice. Reading the judgement, Chief Mogoeng Mogoeng could not have made it clearer:
"Her investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power."
And yet that is exactly what Busisiwe Mkhwebane has done; she has allowed her office to become a pawn of the corrupt criminal syndicate that has captured our state and many of our institutions.
Furthermore, in ordering a Constitutional amendment – a finding that is so clearly not within her powers to make – she is forcing the court to rule that this remedial action is not legally binding. This contradicts the Nkandla ruling that the Public Protector’s remedial action is binding, giving the President reason not to comply.
Mkhwebane has chosen to act on matters beyond her mandate, while reports such a that into the Vrede Dairy Farm scandal – a clear case of Gupta state capture – gather dust on her desk.
In August last year, the DA opposed Mkhwebane’s nomination to the office, first and foremost because she was simply not the best candidate for the position - based on her qualifications and experience. But also because she was closely connected to the State Security Agency (SSA), which itself we knew to be captured by the Zuptas. In fact, we concluded she was on their payroll, and said as much at the time.
This week’s revelations of Mkhwebane’s partiality vindicates our opposition to her nomination, and compels us to initiate proceedings against her. If Parliament makes a finding of “misconduct, incapacity, or incompetence”, she can be removed from office through a resolution of the National Assembly, requiring a two thirds majority.
South Africa needs an independent Public Protector, especially since all other institutions with an investigative capacity have already been captured, bar the Judiciary. At essence, this is a tug of war between those who respect the Constitution and those who don’t. This is why we South Africans need to unite behind shared values, and why we need to do it while we still have something to protect.