Despite a stinging judicial rebuke about his work while he was head of another Chapter 9 institution, Lawrence Mushwana says he will not resign as Human Rights Commission chairperson because the court did not order him to.
The Supreme Court of Appeal last week threw out Mushwana’s investigation in 2005, while he was the public protector, of the Oilgate party funding scandal.
Judge Robert Nugent, with four colleagues concurring, found that Mushwana’s investigation “was so scant as not to be an investigation at all”. It confirmed a 2009 High Court ruling setting aside Mushwana’s report.
Reaction towards Mushwana has been muted following the judgment, although AfriForum publicly called for his head. It argued that “as public protector [he] protected the ANC, [which now] raises serious questions about the impartiality of the [Human Rights] Commission”.
But Mushwana told the Mail & Guardian this week that “resignation is not an issue” because the court did not order him to step down.
“I have no doubt that if the court had found that I was not a fit and proper person to hold office it would have said so and would also have recommended or ordered that l should resign,” he said.
The M&G, which brought the application to have the report set aside, did not ask for an order forcing Mushwana to resign. It would have been highly unusual for the court to make an order not sought.
At the core of the Oilgate scandal was a 2005 M&G investigation which revealed that R11-million in taxpayer’s money was channelled from state-owned PetroSA to ANC coffers via politically-connected oil trader Imvume.
Mushwana’s investigation following the exposé allowed both Imvume and the ANC to wriggle off the hook. Mushwana effectively argued that he could not follow the money as his mandate did not extend to oversight of non-state entities such as Imvume and the ANC.
The M&G challenged what it called Mushwana’s “whitewash” in court. A lengthy legal battle ensued, culminating in last week’s appeal judgment in the M&G‘s favour.
Nugent criticised Mushwana for not pursuing the thrust of the allegations by artificially excluding private entities from his purview. This, he said, “had the effect of disembowelling the complaints right from the start”. But even where Mushwana had purported to investigate, said Nugent, “the investigation was so scant as not to be an investigation at all”.
The judgement noted that the public protector’s job is to approach investigations of state abuses with “an open and inquiring mind”, to actively seek the truth, and to work “without fear, favour and prejudice”.
Mushwana’s report, by implication, failed in each respect.
After the M&G‘s initial court victory in 2009, Mushwana’s office parried criticism by saying in a statement: “It is particularly significant, especially in the light of numerous media reports criticising the report and the public protector personally — that the High Court found that there was neither any evidence nor any indication that the public protector deliberately wanted to ‘shield the ANC’.”
Nugent’s judgment, however, went well towards suggesting that he had done just that, noting: “It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact.
“An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case.”
Mushwana’s term as Public Protector came to an end in 2009, and he left with a R7-million golden handshake to take up his current position as Human Rights Commission chairperson.
Meanwhile, incumbent public protector Thuli Madonsela has other priorities to investigate and has “not had time” to review the appeal judgement, according to her spokesperson Kgalalelo Masibi.
In his judgement, Nugent stopped short of ordering Madonsela to conduct a new investigation, saying that she must be allowed to determine what is required.
For more on the Oilgate saga go to our special report.
The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, produced this story. All views are the centre’s. www.amabhungane.co.za.