GOOD Media Statement by Brett Herron,
GOOD Secretary-General & Member of Parliament
11 September 2023
As GOOD we felt procedurally and morally obliged to vote for Advocate Busisiwe Mkhwebane’s impeachment.
However, it was done with a heavy heart.
Mkhwebane’s legal strategy not to respond to evidence placed before her at the inquiry denied the country the opportunity to hear her perspectives.
Mkhwebane failed to make numerous committee deadlines or make final closing arguments pertaining to the allegations against her.
Despite the Office of the Public Protector allocating R4-million in additional funds to support her legal fees, Mkhwebane was unable to secure legal counsel.
She also rejected the legal counsel arranged for her by the Solicitor-General.
Members of the Section 194 inquiry committee only heard one side of the story.
This Inquiry was an opportunity for the suspended Public Protector to explain her version but by choosing to remain silent she left committee members no legal grounds not to recommend her impeachment.
It is important to note that Mkhwebane faced an unprecedented amount of scrutiny.
She was the first Public Protector to serve following the Nkandla judgment, which removed the perceived ambiguity of the Public Protector’s power.
In March 2016, the Constitutional Court ruled that the remedial action imposed by the Public Protector was legally binding and could only be set aside by a court of law.
Mkhwebane took office in October of that year. Her office’s findings faced more scrutiny than any of her three predecessors, with her decisions commonly being taken on legal review.
However, the unprecedented impeachment of the Public Protector is not a moment to celebrate.
It is a sombre moment in our country’s history that should rather inspire introspection.
The whole sorry saga of Advocate Busisiwe Mkhwebane’s tempestuous occupancy and, now, forced removal from the Office of the Public Protector reflects the steady politicisation of the office that was not the intent of those who drafted the Constitution.
The objective of Chapter Nine institutions is to strengthen constitutional democracy – not to work as politicised levers.
The institutions must be independent and impartial, may not be interfered with by any person or organ of the State, and are accountable to the National Assembly.
Chapter Nine lists five functions of the Public Protector, the first of which is, “to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”.
Another function, critical to the right of the people to hold the state to account, states that the Office “must be accessible to all persons and communities”.
But what’s happened over the past decade or so is that politicians have increasingly used the Office as a political football to pursue political goals – including “litigating” against perceived enemies without having to incur legal fees.
This existential challenge pre-dates Mkhwebane’s appointment.
Mkhwebane’s removal will be seen as a victory for politicians but it is not necessarily a victory for the integrity of our systems.
What we should be asking ourselves, as public representatives, is what this process has taught us about the appointment of Public Protectors, and how to prevent the Office from being subsumed by political interest.
The Executive Ethics Act demands that the Public Protector investigate any alleged breach of the Act and Code. The only hedge we have to insulate this requirement from subjective political abuse is the integrity of the office-bearer.
The appointment of the next Public Protector should not be political.
It should be made with the aim of strengthening and supporting constitutional democracy.
Media Enquiries:
Brett Herron, GOOD Secretary-General & Member of Parliament
Cell: 082 518 3264
Email: bretth@forgood.org.za
Samantha Jackson, GOOD Acting Media Manager
Cell: 083 550 9875
Email: media@forgood.org.za