Public Protector Appointment: Mkhwebane is simply not the best candidate

07 September 2016

Release: immediate 

Note to Editor: This was the speech delivered by the DA Shadow Minister of Justice, Adv Glynnis Breytenbach MP, in Parliament today during the debate on the nomination of Ms Busisiwe Mkhwebane for the Office of the Public Protector.

The Democratic Alliance will not be supporting the nomination of Ms Busisiwe Mkwebane as the new Public Protector today. Before I deal with the reasons why not, I want to remind the Honourable Members what the Constitutional Court has said about the office of the Public Protector and what its function really is.

In the now famous Nkandla judgement the Court unanimously stated that:

“Like other Chapter Nine institutions, the office of the Public Protector was created to “strengthen constitutional democracy in the Republic”. To achieve this crucial objective, it is required to be independent and subject only to the Constitution and the law. It is demanded of it, to be impartial and to exercise the powers and functions vested in it without fear, favour or prejudice. This would not ordinarily be required of an institution whose powers or decisions are by constitutional design always supposed to be ineffectual. Whether it is impartial or not would be irrelevant if the implementation of the decisions it takes is at the mercy of those against whom they are made. It is doubtful whether findings and remedial actions taken would make any sense if the Public Protector’s powers or decisions were meant to be inconsequential. The constitutional safeguards in section 181 would also be meaningless if institutions purportedly established to strengthen our constitutional democracy lacked even the remotest possibility to do so.

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.”

Yesterday, in the McBride matter, our Constitutional Court stated that:

“Independence primarily means that the anti-corruption bodies should be shielded from undue political interference. To this end, genuine political will to fight corruption is the key prerequisite.”

Bearing in mind the direction provided by the highest Court in our country the DA cannot support the nomination of Ms Mkhwebane for the simple fact that her appointment would be unreasonable as she was by no means the best candidate for the position and was illogically preferred over other qualifying candidates.

Ms Mkhwebane may possibly turn out to be a capable candidate for the position of the Public Protector. However, we contend that her qualifications and experience make her unsuitable for this position.

The simple fact is that she is not the best candidate for the following reasons:

She has little or no practical experience to justify such an appointment when compared with the experience of the other four candidates;

She was employed by Home Affairs as a Director (salary level approximately R1 million annually) immediately prior to this process being initiated;

She changed employment around June 2016, and went to State Security Agency (SSA) as an analyst.

When asked in the interview why she had changed jobs for what is ostensibly a demotion, her reply was that she “was passionate about the Constitution”. While this is noble value to hold; it alone does not make her eligible for the position or separate her from the other more qualified candidates; and 

We have been advised that the time spent as an “immigration officer” in China is also suspicious, having been informed that this is simply coded language for being on the payroll of SSA.

In the absence of a logical explanation for what is seen as a demotion the ineluctable conclusion is unfortunately that Ms Mkhwebane is on the payroll of the SSA. This situation is problematic in the current climate in the country, where the justified view is held that President Jacob Zuma is abusing State departments, the SSA in particular, (cast your minds back to SONA and the signal jamming debacle) to hang on to power at all costs. We hold the view that the Public Protector cannot be seen as even remotely connected to the State Security Agency.

While this doesn’t make Ms Mkhwebane the worst candidate, it does not make her the best either. Further to this, the secrecy around her work at the SSA makes it almost impossible to ascertain whether or not her role and conduct are beyond reproach and befitting the office of the Public Protector who is constitutionally mandated to be “a fit and proper person to hold such office.”

Additionally, Ms Mkhwebane could not confirm that she had “acquired any combination of experience … for a cumulative period of at least 10 years” as is demanded by the Constitution.

Other issues that gave rise to concern and moved us to be unwilling to support her nomination are the following:

Both Judge Weiner and Prof Majola were stronger candidates, in terms of experience and in terms of the quality of their interviews;

Prof Majola as a candidate brings the bonus of his involvement in the Special Tribunal in Rwanda over the last seven years, he, unlike Adv Mkhwebane, has been at a certain distance from Government in South Africa. 

Ms Mkhwebane, on the other hand, has always been employed in and around government and has already indicated that she wants to have a more “friendly relationship with government”;

Much was made of the fact that she was a senior investigator at the office of the Public Protector previously, but in our view, the fact that she served during the tenure of Lawrence Mushwana, when the office showed little to no appetite to vociferously investigate government corruption.

With the ever present danger of state capture by the President, and the fact that all independent institutions with an investigative capacity have already been captured leaving only the Office of the Public Protector and Judiciary relatively untouched, it is of enormous importance to ensure that the appointment of the new Public Protector is beyond any suspicion.

Given the overall performance of the candidates at the interviews and a comparison of their qualifications and experience, the single-minded support for Ms Mkhwebane is unreasonable in our view.

We hold the view that Judge Sharise Weiner had the best interview, but that Professor Majola is the best candidate. We would be very comfortable nominating him for the post. 

The DA believes in the Rule of Law and stopping corruption. To this end we have worked tirelessly during this process to appoint the new Public Protector, to ensure that the best person is appointed to serve the interests of the people instead of the narrow interests of a political cabal set on advancing their own self-interested agenda.

We should also remember, amid all the howling now about the DA opposing this nomination and the cosy relationship Ms Mkhwebane enjoys with State Security, that Ms Madonsela was vilified by the ANC in and outside of this House. Those now supporting Ms Mkhwebane, saying she must find her own moral compass are precisely those members who accused Ms Madonsela of being arrogant, a law unto herself and a spy. Do not for one moment lose sight of the fact that the Honourable, sophomoric, Dep Minister of Defence called Thuli Madonsela a CIA plant and accused her of undermining the ANC. Of course, all this dried up alarmingly when the Nkandla judgement was delivered. 

In the Glenister matter, about the independence of the DSO (Scorpions) the Constitutional Court held that:

“the appearance or perception of independence plays an important role in evaluating whether independence in fact exists…….

If Parliament fails to create an institution that appears to the reasonable public to be independent, it has failed to meet one of objective benchmarks for independence.”

We simply cannot risk another Nkandla and we cannot risk these principles and this House cannot again fall foul of the Constitution with the nomination of Ms Mkhwebane. We will not be supporting her nomination.

Statement issued by Adv Glynnis Breytenbach MP, DA Shadow Minister of Justice, 7 September 2016