EDITORIAL | Mkhwebane’s removal is long overdue. SA deserves better

The decision by a panel appointed by parliament to investigate public protector’s Busisiwe Mkhwebane’s competence has arrived at a predictable but welcome conclusion. Parliament should start a process to remove her. 

At the heart of this long and arduous battle, as a result of which our democracy is poorer, is the question whether Mkhwebane is possessed of the necessary will and wherewithal to discharge responsibilities bestowed on her and the office she leads by the constitution. The panel, led by Constitutional Court judge Bess Nkabinde, found prima facie evidence of her incompetence and misconduct. This includes her bold but misguided decisions that parliament must amend the constitution.

While the three-member panel, which included adv Dumisa Ntsebeza and adv Johan de Waal, found a plethora of errors of the same kind, incorrect interpretation of the law, selective use of information and failure to provide subjects of investigations a right to respond, it worryingly suggested she was unteachable: “This (repeated errors) suggests an inability to learn from mistakes by adopting a more careful approach.”

The panel cited, as examples of misconduct, Mkhwebane’s failure to reveal that she privately consulted former president Jacob Zuma and her former employers, the State Security Agency, during her SA Reserve Bank investigations, in addition to her failure to honour an agreement with the SARB. The less said about Zuma and Mkhwebane’s continued association with intelligence structures the better. 

South Africans deserve a public protector who will be fearless without being needlessly antagonistic.

What is now expected is that a sitting of the national assembly will either reject or adopt the recommendation, after which a parliamentary inquiry into her fitness to hold office will get under way. Should this happen, Mkhwebane will go down in history as democratic SA’s first head of a Chapter 9 institution to get the dubious honour of being impeached. 

Two key issues arise from the recommendation by the panel for her removal. 

First, we must, as a country, ensure that the process undertaken to remove Mkhwebane will stand the test of time. Put differently, we must not, in our rush to get rid of a patently rogue public protector, set in place processes that make future protectors fearful of taking courageous decisions in the national interest because they fear being removed. And for the record, Mkhwebane is not such a leader. If anything, her decisions were not in the interests of our country and her removal is long overdue. 

Second, we must ensure that future protectors know and fully understand that their longevity in office is not dependent on them taking decisions that meet the approval of whoever runs the country at a given time. In other words, our future protectors must understand that being a sweetheart protector is equally a disservice to our democracy. 

South Africans deserve a public protector who will be fearless, without being needlessly antagonistic; who will be patriotic without seeking to please; who will use the law, on behalf of the voiceless, to get the high and mighty to deliver on the democratic promise.