In different circumstances, Lawrence Mushwana and Bulelani Ngcuka would belong to the same support group for civil servants aggrieved by perceptions that they would sacrifice their professional integrity in the interests of their political party.
Both are former deputy chairpersons of the National Council of Provinces, with Mushwana having replaced Ngcuka, who had taken up the newly created post of National Director of Public Prosecutions.
In the 18 months that Mushwana has been in office, very few of the 37 000 cases his office has dealt with have been politically challenging, although they are primarily complaints against government officials.
As a result, there is no real basis to confirm or debunk perceptions about political influence on the Public Protector’s office, and the jury is hung on whether Ngcuka and Mushwana have always dealt with matters concerning their erstwhile comrades without “fear or favour”, as the Constitution requires.
Wits University’s Professor Tom Lodge feels it was too early to say whether Mushwana has proved to be his own man. “So far he has not really proven his independence or whether he is a lapdog.”
Lodge says the Public Protector’s office is, however, ill-equipped to function as an efficient watchdog of corruption in the public service, partly because of limited resources.
But not everyone is prepared to be so circumspect about Mushwana’s record. Colm Allan, director of the Public Service Accountability Monitor, based at Rhodes University says: “Constitutional oversight bodies such as the Public Protector should investigate compliance with codes of conduct governing public officials and members of the executive and establish whether there have been breaches of public service and public finance legislation. But the Public Protector’s track record is a poor one, particularly where it concerns the investigation of members of the executive.
“Any findings of non-compliance with these codes and regulations need only be established on the basis of a balance of probability. Yet there has not yet been a single case to date where the Public Protector has made a decisive finding of wrongdoing against any member of the executive. It has repeatedly failed the litmus test of ensuring effective oversight of the executive.
“Instead it is fast developing a track record of entertaining apparently frivolous complaints referred to it by people under investigation by the Director of Public Prosecutions.”
While Mushwana has ruled on issues affecting politicians, this investigation, which pits ANC stalwarts Jacob Zuma and Ngcuka against each other, was always going to be his toughest test.
Last August Mushwana was accused of reading the Executive Ethics Code too narrowly when he cleared Minister of Defence Mosiuoa Lekota of a charge that Lekota’s undeclared business interests exposed him to a conflict of interests, leading President Thabo Mbeki to close the book on the matter.
In October last year Mushwana found that Zuma had declared all his financial interests related to companies and loans in the confidential section of the register. He accepted Zuma’s explanation that funds the deputy president had received from Schabir Shaik were interest-bearing loans exempted from compulsory declaration. The decision meant that Zuma had not contravened the members’ register rules.
But in the uncertain world of politics, instead of the two crying on each other’s shoulder, Ngcuka and Mushwana find themselves in different corners. Mushwana is expected to release his findings on Friday May 28 on whether Ngcuka abused his powers while investigating Zuma in relation to the arms deal.
Zuma, who lodged the complaint with Mushwana’s office, said his gripe was “particularly related to the manner in which the investigation was conducted and the conclusion, and the manner in which this was communicated, as well as the reported continuation of the investigation”.
At the time of his appointment in September 2000, he told the Sunday Times that the DA “[is] saying that the Public Protector should be apolitical. That’s an ideal situation — but it’s not a real one,” Mushwana’s finding on Ngcuka could well be used, rightly or not, to determine on which side his political bread is buttered.