South Africa

Politics, South Africa

And then there was one: The woman likely to be the next Public Protector, Busisiwe Mkhwebane

And then there was one: The woman likely to be the next Public Protector, Busisiwe Mkhwebane

With the public focus on the Hawks machinations against Finance Minister Pravin Gordhan, State Security Agency (SSA) analyst Advocate Busisiwe Mkhwebane emerged as the compromise nominee Public Protector. Rumours that she was President Jacob Zuma’s “candidate for the job” were strategically raised, and dispelled, by Economic Freedom Fighters leader Julius Malema during Wednesday’s parliamentary committee meeting to finalise the process. “Even if she was Zuma’s preferred candidate, he will not be there at some point… If she tries any shenanigans, the institution will expose her for who she is,” he said. And after two-and-a-half hours of an intricate political chess game, and the DA reserving its position, MPs called it a day. By MARIANNE MERTEN.

In March, the damning Constitutional Court Nkandla judgment found Parliament had acted “unlawfully” and “inconsistent with the Constitution” in adopting a resolution absolving President Jacob Zuma from repayments for nonsecurity benefits at his rural homestead. The swimming pool, cattle kraal, chicken run, amphitheatre and visitors’ centre had been identified as “undue” benefits in the 2014 Public Protector’s report “Secure in Comfort” and liable for repayment of a reasonable percentage of costs.

While Parliament could adopt its own processes to fulfil its constitutional duty of oversight over the executive, “there was everything wrong with the National Assembly stepping into the shoes of the Public Protector”, according to the Constitutional Court. The Constitutional Court ruled that the Public Protector’s findings and remedial actions were binding – unless found otherwise after a court review – and ordered Zuma to personally repay monies following a National Treasury assessment according to a determined timetable.

The judgment cast a pall over the national legislature, but entrenched the Public Protector’s mandate in Section 182 of the Constitution 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…”

Against this background, and the sharp criticism against many public appointments like the top post of the Hawks, various levels of the SAPS, the National Prosecuting Authority (NPA) and elsewhere, who would be nominated to succeed Public Protector Thuli Madonsela was always going to be very closely watched.

The ANC knew it would be under scrutiny. Steamrolling a preferred candidate into the job on the back of ANC numbers in the House, as has happened in the past, would not pass muster. So the process was thrown open: the public could make nominations and submit comments, candidates had to submit a separate questionnaire, and the committee meetings were broadcast live. Civil society organisations watched, and Corruption Watch conducted a public awareness and advocacy campaign.

The applications were whittled down to 14, who were interviewed in a 19-hour one-day session also broadcast live. While concerns were expressed over the marathon sitting, and a shambolic shortlisting process, it eventually came down to five candidates. Wednesday’s committee meeting would finalise the matter. It came down to a law professor, two judges and two women advocates with links to intelligence.

Judge Siraj Desai was one of the ANC MPs’ front-runners. He was the only one left after Sheriff for Belville Advocate Nonkosi Cetywayo, who after working for Baleka Mbete during her first stint as Speaker moved with her to the deputy presidency in 2008, dropped off after the public interviews amid the grapevine that there was potentially embarrassing information to emerge. The DA preferred Professor Bongani Majola. The African Christian Democratic Party (ACDP) Judge Sharise Weiner. The EFF kept its cards close to its chest.

However, all opposition parties objected to Desai. “I’ve just come to ask you not to appoint Judge Desai,” was Malema’s opening gambit. “Oh, we are not there yet. I thought we are debating.”

But the list of short-listed candidates kicked off with Weiner. She dropped off after a brief discussion in which her corporate law experience before appointment to the Bench was deemed against her.

Then it was Desai’s turn. And no matter how ANC MPs emphasised his experience and his “bias to the poor and downtrodden”, none of the opposition MPs would bite. “He has no control over his tongue. He has no control over his temper,” said DA MP Glynnis Breytenbach. “Judge Desai will be little less than a puppet and we could never support his appointment.”

It was Desai’s failure to answer EFF questions on the #RememberKhwezi protest at the local government elections announcement that again emerged as a negative against him. “The issue of rape is a very, very difficult issue in our society,” said Malema, who brought up the 2004 rape complaint laid, and withdrawn, against the judge. “This is supposed to be an honourable man (but) he himself has one dark cloud of the rape issue handing over him.”

ANC MP Madipoane Mothapo’s comment “The Bible says: forgive so that you are also forgiven”, was neatly rebuffed by ACDP MP Steve Swart: “We have forgiven him for what he’s done, but there are consequences.”

And then came the emergence of Mkhwebane amid positive comments almost all round. ANC MPs described her as “very good” with a wide set of skills, a “cool head” under pressure and the one interviewee who had remembered all the MPs’ names. IFP MP Themba Msimang, who had nominated her, said she was “a lady of guts” and that, listening to his fellow MPs positive comments, “I want to pat myself on the back.” The National Freedom Party also came out in support.

Mkhwebane joined SSA on 1 July as an analyst after years in various management positions at the Home Affairs Department. She spent four years as immigration councillor at the South African embassy in China from 2010, a six-year stint as senior investigator in the public protector’s office and before than eight months as senior researcher at the South African Human Rights Commission (SAHRC). She worked for two years as a prosecutor, and then as a legal administration officer, between 1994 and 1998.

DA concerns that she was more a of a civil servant were given short shrift. Malema argued that even if she was Zuma’s preferred candidate, she would be exposed, and that previous candidates thought to be pliant turned out quite different. Chief Justice Mogoeng Mogoeng was an example, he said, as Shivambu described Mkhwebane as the “compromise candidate”. There was no word otherwise.

After that it was a quicker move to the finish. Pensions Fund Adjudicator Muvhango Lukhaimane, who previously worked for seven years at the SSA, was commended for tackling the backlog, but MPs decided she would still be needed there. While Majola was “excellently qualified”, concerns over the more than 10 years he spent at the United Nations International Criminal Tribunal for Rwanda (UN-ICTR) and more recently as UN assistant secretary general held sway.

With no objections to Mkhwebane – the DA reserved its position – the (near) consensus was what committee chairperson Makhosi Khoza hoped, and worked, for. “Is this the final decision of the committee?” she asked, before announcing that Mkhwebane’s name would be the one tabled for approval in the National Assembly by the 31 August deadline.

Corruption Watch executive director David Lewis said Mkhwebane had done “excellently” in the interview. “She’s unknown to most people, but so was Madonsela,” he added. “I’d rather (the SSA position) was not in her CV, but I’m not prepared to hold it against her.”

For Mkhwebane’s nomination to be approved, and then sent to Zuma for appointment, it must receive 60% of support in the House, according to Section 193 of the Constitution.

If all these requirements are met, once Madonsela leaves office on 14 October, Mkhwebane steps in. And one of the first matters across her table will be the probe into state capture by the Gupta family through business dealings with government and prior knowledge of Cabinet appointments. DM

Photo: Advocate Busisiwe Mkhwebane (YouTube via TechCentral)

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