On Sunday, South Africans woke to the news that the public protector advocate Busisiwe Mkhwebane, has laid a criminal charge against her predecessor, advocate Thuli Madonsela. According to the Sunday Times report, Mkhwebane says she laid the charge because Madonsela had violated section 7(2) of the Public Protector Act, which prohibits the disclosure of evidence given before the public protector during an investigation, unless the public protector grants permission.
There are a number of issues with this. First, Madonsela did receive permission: from herself. As Madonsela herself has recounted on a few occasions, the audio of her interview with President Jacob Zuma was released on the October 13 2016 and her last day in office was on October 14 2016. She was therefore still the public protector of the republic and well within her rights to release the interview.
Second is that Mkhwebane is not leading; she appears to be following and taking orders. Speaking to the Sunday Times, she revealed that she laid the charge following complaints from Zuma, “The National Assembly” (the ANC? Interpret that however you wish) and Vytie Mentor. The latter has since said that she did not lay a complaint with Mkhwebane and has apparently instituted legal action against her.
Mkhwebane has been the public protector for a little over a month now and, since the release of the audio by Madonsela, she has had enough opportunity to make her own, independent determination on whether or not this act by Madonsela is unlawful. She did not need to wait for a complaint from Zuma to do this, but she did. This is problematic.
This is a nightmare for Mkhwebane because the impression this, rightly or wrongly creates is that she is a puppet and is “captured” by Zuma and his faction in the ANC. This episode reveals that she lacks the judgement, foresight and political savvy needed for the office she holds. Politics or any high public office is all about perception and so far Mkhwebane does not look good. Could she not reasonably foresee how this would play out publicly? Or did she simply not care?
Early yesterday I tweeted that Mkhwebane did not have to lay a charge against Madonsela. She could have told Zuma to do this himself as an “aggrieved party” and at his own cost. Why should the public purse suffer? This would have demonstrated good judgement from Mkhwebane. Sadly, although she may have acted relied on legal advice, her public relations and political advisors failed her. Ultimately she failed herself as this was her decision to make.
So in her latest explanation, #Mkhwebane expects us to accept that she asked the police to investigate a nameless person? It’s about Thuli.
— Mondli Zondo (@MoZondo) November 28, 2016
Yesterday, following the damning Sunday Times report, Mkhwebane issued a statement explaining how she had not laid charges against Madonsela but that rather, she had asked the police to investigate if the Public Protector Act had been violated with the “leaking” of this evidence. I find this disingenuous and I am offended that Mkhwebane expects South Africans to believe that she asked the police to investigate the actions of a nameless, faceless person. The truth, I believe, is that Mkhwebane and her advisers realised the backlash and sought to do damage control. Was their effort successful? Please make your own judgement.
Mkhwebane is supposed to be in a “honeymoon” period during which she gains the confidence of her countrymen and women. She has instead come into the position determined to show that she is not Thuli Madonsela. Believe me, we know she is not.
Even before taking office, she sought to distance herself from Madonsela by saying she would not pursue the report on state capture. In hindsight, this should have been a red flag for us all. She then stunned the nation by publicly criticising Madonsela on her very first day at work. Who does that? She then infamously told Parliament that staff morale was low at the public protector’s office, which was widely and correctly seen as an effort to discredit Madonsela and blight her legacy. Even if this is true, we did not need to know this because Mkhwebane’s duty is to instill public confidence in her office. This attempt to demonise Madonsela failed. Epically.
What Madonsela understood that Mkhwebane does not is that, instead of alienating the media, one can use it to enhance the work of the public protector. I mention this because supporters of Mkhwebane defend her by alleging that Madonsela was working for the West and had the media in her corner to advance this agenda. Mkhwebane is supposedly the antithesis of this. We should remember that, before Madonsela, many of us did not know who the public protector is or that such an office exists. It seems as if Mkhwebane wants to return us to that bygone era.
I do not believe Madonsela is without flaws; like any human being and public servant I am certain she has her share of shortcomings. This essay is not about defending her. It is about encouraging Mkhwebane to choose her battles wisely and this is not her battle to fight.
I have written this because I want Mkhwebane to be a successful Public Protector because this is what our country needs. Strong constitutional institutions like hers are the very backbone of our democracy in a time when government acts with shameless impunity and disdain. Now more than ever, South Africans need a champion in the public protector’s office. Mkhwebane needs to decide whose champion she is: Is she the public protector or the state protector? So far, the answer is not so clear and this should worry not only Mkhwebane but all of us.