To err is human, says Mushwana
Lawrence Mushwana has acknowledged he made mistakes as the Public Protector, but says he is looking forward to new challenges at the South African Human Rights Commission (SAHRC).
Parliament has recommended Mushwana and five others as new SAHRC commissioners, and he is tipped to be the next chairperson.
Speaking to the Mail & Guardian, he said one of his priorities is to assert the authority of human rights commissioners against the seemingly more powerful role of the commission’s chief executive officer—a view likely to create fresh friction at the SAHRC.
But Mushwana’s plans might be complicated by the fact that the South African Human Rights Commission Act of 1994 does not provide a clear definition of the work of commissioners and the CEO, who is the accounting officer at the commission. The lack of definition has in the past created tensions between the secretariat, led by the CEO, and the commissioners, led by the chairperson.
Mushwana told the M&G he would push for an amendment to the Act to define the seperate roles clearly.
“As long as you don’t have an executive authority in any institution, then you have problems. The CEO must be subjected to an executive authority,” Mushwana said.
His plans might pit him against current CEO, Tseliso Thipanyane, said to be hands-on, fearlessly independent and outspoken in the running of the commission. In an internal memo leaked to the media, Thipanyane requested that high-profile cases be handled “in consultation with the CEO” according to his “risk management responsibilities”.
Mushwana said the CEO should deal with the organisation’s finances and administration: “When it comes to matters of human rights, the Act gives powers to commissioners.” He said CEOs were “bureaucrats” who must provide financial and administrative support for commissioners.
Commissioners should be hands-on in formulating the strategy and goals of the SAHRC, which the CEO will be responsible to fund, he said. “The way I see it, it is the other way round [at the moment],” he said. “It is wrong, it cannot work. I saw it with [Lindiwe] Mokate when she was there, [and] it did not work.” Former CEO Mokate left the SAHRC under a cloud in 2005 after months of alleged infighting and claims of mismanagement of the commission. She is now making a return as a full-time commissioner.
Recalling his time as Public Protector, Mushwana reflected on his bruising fight with former justice minister Penuell Maduna and former National Prosecuting Authority (NPA) head Bulelani Ngcuka. The two launched scathing attacks on Mushwana, accusing him of “arrogance” after he found that Ngcuka had acted improperly and unfairly towards Jacob Zuma (then deputy president). Ngcuka had said that although there was a “prima facie” case of corruption against Zuma, he would not be prosecuted.
Maduna dismissed Mushwana’s report on the matter as “junk” and, together with Ngcuka, called the Public Protector a “sad case intellectually” who had no “backbone”.
“Here I had my own minister who is supposed to protect me coming out in the media attacking me,” Mushwana told the M&G. “I had the NPA, which is part of our corruption-fighting team, attacking me. That was a more brutal [case] than Oilgate.”
In his farewell speech last week, Mushwana told guests that the job of Public Protector can be “lonely”. He expanded in his M&G interview this week: “Who was there to defend me? Nobody came out, I was just hammered—until very late when Parliament came in and endorsed my report. [That caused] a sigh of relief. At least there was somebody out there who saw this thing the way I see it.”
He called Oilgate “an eye opener” on how to approach cases in a manner that would be defendable. In July the Gauteng North High Court overturned Mushwana’s report on the Oilgate scandal and ordered a new investigation that would include matters Mushwana had claimed were outside his mandate.
He had refused to pursue the money trail to the ANC. “I’m also a human being, I can err, like a judge would err in any case. I don’t err because I favour the ANC, I just err because of human error or the facts before me.”
Regarding the effectiveness of the SAHRC, Mushwana said if the SAHRC had focused enough on socio-economic issues, maybe people would not have had to resort to service delivery riots.