We hoped we had seen the last of Busisiwe Mkhwebane when the National Assembly voted 318 to 43 to remove her as public protector last September.
We should have known better. In hindsight, her tenacious fight to cling on to power — using every legal manoeuvre she could conjure up — was a hint that she would not go quietly into the night.
This week, she popped up at the centre of yet another controversy: her rather awkward involvement in the appointment of a deputy public protector, after the previous incumbent, Kholeka Gcaleka, was appointed as Mkhwebane’s replacement.
That Mkhwebane should be involved in the appointment of a deputy PP is in itself uncomfortable, but its acceptability can be argued given that as soon as she was given the boot, she joined the EFF and became an MP, quickly taking a spot on the portfolio committee on justice and correctional services (the same one she had to account to when she was PP).
Interestingly, also on this committee is ANC MP Qubudile Dyantyi, who chaired the section 194 committee that found Mkhwebane incompetent and guilty of misconduct and recommended her removal to the National Assembly — and who she twice tried to have recused. It also includes DA MP Glynnis Breytenbach, who opposed Mkhwebane's appointment in 2016 and whom Mkhwebane sued for calling her a former spy (that case has stalled after Mkhwebane did not hand over documents requested by the court). One can only imagine the spirited discussions that go on in this committee behind closed doors!
Mired in contention
No big surprise, one of Mkhwebane's first big tasks as a member of the committee has been mired in contention. On Tuesday, the committee said it couldn't continue with deliberations after last month's interviews for deputy public protector because the process had been tainted by conflicts of interest between Mkhwebane and two of the candidates.
This means the process will have to start all over again, including all the interviews — a massive waste of time and money.
Mkhwebane had declined to recuse herself from the process despite a relationship with the two candidates. Candidate advocate Sekgame Tebeila is representing Mkhwebane pro bono in the African Court on Human and People’s Rights in a matter relating to her impeachment proceedings, while another candidate, Ponatshego Mogaladi, is an executive manager in the office of the public protector who testified about an alleged culture of fear and intimidation in the public protector's office during the parliamentary inquiry into Mkhwebane's fitness for office.
Mkhwebane claimed that as a legal professional, she could be objective during the committee’s interview process. “I'm representing the masses. I’m not here as Mkhwebane the public protector,” she insisted when initially asked to recuse herself two weeks ago.
But others felt differently, and a parliamentary legal opinion presented on Tuesday found that Mkhwebane’s relationship with the two candidates created a reasonable apprehension of bias and that she should have recused herself from the process or in respect of interviews and deliberations regarding the two candidates.
Telenovela
While the drama plays out like a low-budget telenovela, there are important questions to be asked about how Mkhwebane came to be on this committee, and what impact she will have on its success and productivity.
While we respect the rule of law, which allows political parties to appoint qualifying members to the committees of their choice, the fact that an impeached public protector is now part of a committee whose job it is to demand accountability from the very same institution she so clearly abused, does not seem just, practical or helpful.
While it is essential for parliamentary committees to include people with different views and perspectives, Mkhwebane brings a track record of misconduct, incompetence and unethical behaviour. For this reason her entry via the EFF cannot be condoned. Already, her involvement has resulted in the delay in the appointment of a deputy public protector, a vitally important role.
And what does this debacle say about our parliamentary processes?
The Mkhwebane issue is not the first case of uncharted territory for parliament this year. Another first was that tricky question of what to do with a speaker accused of bribery. Fortunately that dilemma was solved when Nosiviwe Mapisa-Nqakula, who was on special leave and facing a motion of no confidence vote, resigned on Wednesday afternoon after losing a legal bid to stop her arrest.
But as parliament increasingly finds itself faced with new controversies, it has become clear that its legal processes need closer inspection with a view to closing any loopholes that may thwart the flow of justice and leave our lawmakers — and our country — with egg on their face.
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