What is to be done about the Public Protector?

Public Protector Busisiwe Mkhwebane’s handling of the investigation into the lifeboat provided to Bankorp has raised serious questions about the extent of her legal knowledge and her judgment. This has led some people to call for her removal from office. But one should think twice before calling for the removal of somebody from an office whose independence is guaranteed by the Constitution.

When Public Protector Busisiwe Mkhwebane released her report into the government’s failure to recover the money paid by the Reserve Bank as a “lifeboat” to Bankorp, anyone with even a smattering of legal knowledge who has not been captured by the Guptas immediately knew that the report was a legal disaster.

The report did not only make findings which, at least on the face of it, was not justified by the evidence presented. It also ordered Parliament to amend the Constitution to change the mandate of the South African Reserve Bank, something the Public Protector is not legally empowered to do.

The report has seriously tarnished the image of the Public Protector. When parties turned to the courts to challenge the report, she immediately caved in and conceded that she did not have the power to order Parliament to amend the Constitution. The fact that her spokesperson embarrassed herself and the office of the Public Protector further by seemingly claiming in a radio interview that the remedial action ordering Parliament to amend the Constitution was a typo, further contributed to the problem.

It is therefore understandable that fair minded members of the public will have serious doubts about the ability of the Public Protector to do her job as prescribed by the Constitution. Section 181(2) states that institutions like the Public Protector are:

independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.

The way in which the Public Protector dealt with the Bankorp report therefore raised suspicions that she may not be independent and impartial and that she may have been captured by a political faction within the governing party. Does this warrant the removal of the Public Protector from office?

I would argue that it does not. One should never remove an independent person from office on the basis of suspicions.

Section 194 of the Constitution provides for the removal of the Public Protector from office. This section states that he or she may only be removed from office “on the ground of misconduct, incapacity or incompetence”.

The removal can only occur after a factual finding by a relevant committee of the National Assembly (NA) that the Public Protector is indeed guilty of misconduct, suffers from incapacity or is incompetent”. The NA must then adopt a resolution calling for that person’s removal from office, but the resolution must be supported by at least two thirds of the members of the NA. Once this resolution is passed, the President must remove the Public Protector from office.

This provision is important to safeguard the independence of the Public Protector and should be construed narrowly to ensure that politicians in the NA do not remove the Public Protector (or members of other chapter 9 institutions) form office merely because they do not agree with findings made by her office or merely because the Public Protector got the law wrong.

There needs to be conclusive factual evidence (not just suspicions) to justify the move. Otherwise, politicians may remove the Public Protector from office on spurious grounds and may thus fatally undermine the independence of that office.

To remind ourselves of the principle involved, recall what happened to another person who served as the head of an independent constitutional institution.

Advocate Vusi Pikoli, who headed the National Prosecuting Authority (NPA), was suspended from office by President Thabo Mbeki because he dared to charge the then Police Commissioner Jackie Selebi with corruption. In other words, he was suspended from office for acting in an impartial and independent manner.

Even though the Ginwala Commission found that Pikoli should not be removed from office, the NA voted to remove him from office on the spurious ground that he was guilty of misconduct. It is difficult not to conclude that he was removed from office because it was feared that he could not be manipulated and that he would proceed to prosecute President Jacob Zuma on more than 700 counts of corruption and money laundering.

Pikoli was by far the most competent and honest National Director of Public Prosecutions (NDPP) South Africa has ever had. Yet he was removed from office despite the lack of overwhelming evidence that he was guilty of the type of misconduct required by the constitution for his removal.

This removal dealt a fatal blow to the independence and impartiality of the NPA, from which it has not recovered. Is there anyone who seriously believes that Advocate Shaun Abrahams, the incumbent NDPP, would ever dare to charge the Police Commissioner (let alone the President) with corruption? I sure don’t.

It is for this principled reason that I would caution against the hasty removal of the Public Protector from office because of suspicions that she is either incompetent and/or captured.

Now, as I have alluded to above, there is reason to suspect that the Public Protector is at the very least incompetent. After all, no half-competent first year law student who has studied the Constitutional Court judgment in the Nkandla matter would have believed that the Public Protector has the power to order Parliament to amend the Constitution.

That judgment clearly held that while the remedial action imposed by the Public Protector would, in appropriate cases, be binding, the Public Protector remained subject the Constitution and the law. By purporting to order Parliament to amend the Constitution the Public Protector was, in effect, trying to subvert the Constitution whose discipline she is subject to.

But I do not believe it would be appropriate to remove individuals who head up independent institutions from office merely because they make one catastrophic legal mistakes. Even good lawyers get the law wrong sometimes. And some less competent but not inherently wicked lawyers may get the law wrong quite often.

This is why more would be required to remove the Public Protector from office than mere proof that she got the law badly wrong. Otherwise, politicians may threaten to remove such an individual from office every time that person gets the law wrong. That will undermine the independence and impartiality of the office.

Now, if credible evidence emerged that the findings and remedial action imposed by the Public Protector were not her own, but that she followed orders from somewhere else, that would clearly warrant removal from office for misconduct. Such evidence would prove that she deliberately failed to comply with her constitutional obligations to act in an independent and impartial manner.

Furthermore, if it could be shown (mere suspicion would not do) that the Public Protector imposed the remedial action knowing full well that she did not have the power to do so (in other words, if it could be shown that she was not only amateurishly inept, but malicious) that would also warrant removal from office.

The independence and impartiality of the office of the Public Protector is safeguarded by the Constitution, partly by making it difficult legally to remove her from office. This is why it is so important to appoint an independent and legally skilled person to that post. Once appointed, the horse has bolted, so to speak, and it would then only be in extraordinary circumstances where removal would be warranted.

If we do not insist that this difficult but sound principle is followed in the case of Advocate Busisiwe Mkhwebane, who is to say that politicians will not in future remove a more effective and independent-minded Public Protector from office merely because they can point out that he or she got the law wrong in an individual case.

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