Like Caesar's wife, the Public Protector must be above suspicion
8 September 2023
On 29 August 2023, Kholeka Gcaleka, who is the Acting Public Protector (APP), was nominated as the candidate to succeed the disgraced Busisiwe Mkhwebane as Public Protector (PP). Mkhwebane's predecessor, Advocate Thuli Madonsela, demonstrated how the office of Public Protector could play a crucial role in holding to account state institutions that were suspected of improper conduct. Indeed, her fearless exposure of state capture under President Jacob Zuma played a pivotal role in forcing his resignation. Sadly, Mkhwebane did not continue this proud tradition and instead mired the office in unseemly controversy after controversy, racking up an unprecedented number of judicial rebukes in the process.
What is needed now is a visionary leader, with an irreproachable record who will be able to regain public trust by investigating, without fear or favour, allegations of improper conduct at all levels of Government. Unfortunately, there are doubts whether Adv Gcaleka fits the bill.
Section 181 of the Constitution requires the PP to be “independent, and subject only to the Constitution and the law”. It goes on to require that he or she “must be impartial” and must exercise his or her powers and perform his or her functions “without fear, favour or prejudice.”
On 30 June, Adv Gcaleka, as APP, cleared President Ramaphosa of allegations that he had violated the executive ethics code in connection with the theft at his Phala Phala farm in February 2020. Yet towards the end of last year, an independent panel headed by former Chief Justice Sandile Ngcobo found that the President may have committed serious violations of the Prevention and Combating of Corrupt Activities Act and the Constitution “by exposing himself to a situation involving a conflict between his official responsibilities and his private business”. Accordingly, questions were inevitably raised regarding the credibility of Adv Gcaleka’s investigation.
A central concern regarding Gcaleka's nomination is the degree to which she will be able - or willing - to carry out her duties impartially and without fear or favour. Doubts have been raised – not only by her Phala Phala finding – but also by her previous role as a legal adviser to former Home Affairs Minister Malusi Gigaba, who was found to have lied under oath; and by her reported support for Menzi Simelane – former Director of Public Prosecutions (DPP) – who was removed from office in 2012 after the Constitutional Court found that he was not a fit and proper person. After his appointment as DPP, Simelane reportedly said, “I am here to implement the policies of the ruling party.”
The role of the Public Protector is crucial in fearlessly investigating improper conduct in state institutions and in holding the Government to account. The PP must have the courage and independence to challenge those in positions of authority. Appointing a Public Protector with perceived political affiliations could jeopardise the integrity of the office and further erode public trust in the institution.
The decision on the PP’s appointment lies with the National Assembly, at least 60% of whose members (240 out of 400) must, according to the Constitution, vote in favour of the new PP. The ANC holds 230 seats, and with the IFP also in support of Adv Gcaleka, she will probably succeed in attaining this majority.
Our democracy hinges on the ability of key state institutions, such as the Public Protector, to operate without fear or favour in holding the Government to account. Like Caesar’s wife, the Public Protector must be above suspicion. If Adv Gcaleka is appointed, her first task will be to restore the credibility of her Office and to show that she is a worthy successor of Adv Thuli Madonsela.
Issued by FW de Klerk Foundation, 8 September 2023
