Kholeka Gcaleka’s Public Protector mandate starts with a mountain of distrust to climb
Last Thursday, Parliament endorsed the appointment of Kholeka Gcaleka as our new Public Protector. The trust crisis under which Busisiwe Mkhwebane’s tenure collapsed, the nature of complaints to come and the 2024 elections will all test this important Chapter Nine institution. To add to this potent mix, Gcaleka takes office under a cloud of clearing President Cyril Ramaphosa of wrongdoing in the Phala Phala scandal.
The history of the Office of the Public Protector can charitably be described as mixed, with several of the tenures of those who occupied the office defined by the politically challenging complaints they dealt with and their responses to them.
SA’s first Public Protector, Selby Baqwa, may have wished for an easy time, considering that he had to form the inaugural office and create precedents. Instead, he had to lead an investigation into the Arms Deal.
As Corruption Watch has noted, he sometimes gave the appearance of deferring to the ANC and its leadership.
While the Arms Deal was the original sin of corruption in SA’s democratic era, what set the tone for how the ANC would protect itself was the Sarafina 2 scandal. Baqwa’s investigation did not make findings against the health minister at the time, Dr Nkosazana Dlamini Zuma, instead holding a mid-level official responsible.
Baqwa is now a high court judge.
Lawrence Mushwana also appeared to have little appetite to make findings against the ANC. However, as the ANC became divided between then President Thabo Mbeki and his deputy, Jacob Zuma, he had to make a finding on whether then National Prosecuting Authority head Bulelani Ngcuka’s comment that he would not charge Zuma “despite prima facie evidence of corruption against him” violated Zuma’s rights.
In the end, he found in favour of Zuma.
At the end of Ngcuka’s term, as the Mail & Guardian reported, he was given a gratuity of R7-million and took up a new post as chair of the SA Human Rights Commission.
As is well known, things were very different with Thuli Madonsela.
Even though Zuma formally appointed her, she was prepared to investigate corruption against government figures, no matter who they were. This led to her findings about the Nkandla scandal, that Zuma had benefited from the taxpayers’ money that was spent on his home.
While ANC MPs, to their shame, accepted claims that a swimming pool at the property was a “fire pool”, Madonsela found that Zuma had to pay back some of the money spent by the government.
This led to much contestation, with Zuma refusing to pay the money. In the end, after a long battle, the Constitutional Court found that the remedial action, as outlined in Madonsela’s findings, was binding on Zuma.
It was this action that gave the Office of the Public Protector the power it now has: suddenly a president and everyone in the government had to abide by the Public Protector’s rulings.
Madonsela, despite nonsensical investigations by David Mahlobo into bonkers claims that she was working for the CIA, continued on her course (that Mahlobo is still in government is a mark of shame for Ramaphosa).
It was her findings about a “State of Capture” that led to the appointment of the Zondo Commission and all that followed.
By this point, the ANC and Zuma realised how the Nkandla ruling had changed the game.
A lucky break for the RET faction
In 2016, after Madonsela’s tenure expired, the IFP nominated Busisiwe Mkhwebane for the position, which to this day seems awfully lucky for the RET faction of the ANC. After a single day in which every candidate was interviewed in one sitting, she was nominated by an ad hoc committee.
Despite warnings from the DA that she had worked for the State Security Agency, she was elected by the National Assembly.
After changing the internal television screens to Mzwanele Manyi’s ANN7 on her first day, she made findings that benefited Zuma and his allies.
These included a finding that Parliament must change the Constitution to change the inflation-targeting mandate of the Reserve Bank. When it was challenged in court she withdrew it, effectively throwing her own finding under the bus.
Much more was to follow, including facing charges of perjury.
She was eventually removed from office and is now a member of the EFF and an MP.
Now, Gcaleka comes to the position with her own track record.
When it first became clear that Mkhwebane could be suspended, this reporter suggested, based on what was publicly known at the time, that Gcaleka might continue in Mkhwebane’s direction of supporting Zuma.
As is now obvious, that was wrong.
Instead, in her role as Acting Public Protector, Gcaleka has made an important finding about the Phala Phala scandal in favour of Ramaphosa.
While she has robustly defended this finding, her critics have pointed to her “lack of curiosity” about what really happened.
The challenges ahead
Considering how many times Ramaphosa has changed his story about Phala Phala, her finding may come to haunt her during her seven-year tenure.
The challenge for her now is to define her own role and path in this position. With an ever-growing number of scandals, claims of corruption and an election next year, it is likely that the great majority of her work will involve the ANC. Her findings will need to be clear and legally, technically and morally correct.
The pressure will be intense, with the legal power of the Nkandla ruling and the incoming stream of future claims of corruption within the ANC creating a toxic mix.
It is entirely possible she will have to deal with more scandals involving people at the highest level of government. And, considering the News24 reporting about Deputy President Paul Mashatile, some of the cases she will have to rule on will have explosive political consequences.
She appears to be coming into office with less support than any other Public Protector.
Both Baqwa and Mushwana had the backing of a dominant ANC, while the National Assembly voted unanimously in favour of Madonsela. Mkhwebane’s appointment was opposed by the DA but supported by the ANC and the EFF.
Gcaleka was supported by 244 MPs, a sliver above the 240 that she needed to be appointed. The public is now more cynical than ever about our leaders and office-holders — which will make it harder for her to restore legitimacy to the office.
Her personal conduct will be important. Many saw Mkhwebane as playing an actively corrosive political role, and because her findings were not generally accepted, it was expected that they would be challenged in court.
Gcaleka will have to find a way to restore legitimacy to her office across a diverse range of constituencies, at a very difficult time for South Africa.
Her findings will be criticised and challenged by many and she may find the job much more difficult than her predecessors did. DM