GARETH VAN ONSELEN: The public protector is now a public enemy

The public protector, advocate Busisiwe Mkhwebane, needs to resign; if not, to be fired.

Her finding, that the justice committee "must" initiate a process to change the Constitution and the Reserve Bank’s mandate, is a symptom of gross incompetence. It is as dangerous as it is destructive. She has violated her very mandate. She cannot continue, in good faith, to ostensibly represent the public interest.

The context of her decision is telling. There has been a systematic political drive to bend SA’s financial apparatus to a populist left-wing agenda, one enmeshed with various profound and personal kleptocratic interests. Initially these revolved around the manipulation of tenders, then control of key state-owned entities, then the South African Revenue Service and finally the Department of Finance itself. The only remaining obstacle was the Reserve Bank.

It is an obstacle because it is the only thing that stands in the way of a desire to print money, a response to debt and state expenditure that is out of control. Once that happens, Zimbabwean-style economic decay on a grand scale will follow. And collapse is inevitable.

Nevertheless, it is clearly the path those in power wish to pursue. And, through the public protector’s actions, the door to that particular debate, and the consequences attached to it, has now been formally opened.

Whether or not the public protector is a stalking horse, set up specifically to manipulate the powers granted her office by the Constitutional Court on the Nkandla matter, in order to give this discussion the veneer of legitimacy, remains to be seen. But that is now a valid question. She has much explaining to do.

But the primary problem is the role of the public protector, one she does not understand. And as tempting as it is to act against her for the dangerous political repercussions of her actions, it is her lack of understanding as to her role that demands her removal. The problem is profound. You cannot have a public protector who does not understand the Constitution. It is the very thing from which the power of that office flows.

With regard to the incompetence of her decision, the Constitution cannot be changed by diktat. Not only does it require a supermajority in Parliament, but any such change is premised on the free will of those representatives who make up the National Assembly. An outside authority, with no democratic mandate, cannot determine Parliament’s business. That would be to negate its democratic essence.

Likewise, the conception of the Reserve Bank itself is not an isolated clause in the Constitution; it is the consequence of an ideal — independence — that runs throughout the Constitution. It is an idea that defines far more than the Reserve Bank and tampering with it is to tamper with the fundamental edifice itself. The consequences would be far-reaching. It is, ironically, to subvert the office of the public protector itself; for it too relies heavily on that prescript.

To denude a constitutional body of its independence is to set one’s self directly at odds with our constitutional order, and the principles and values that define it. It is also to enter the arean of politics, for monetary policy is not her concern. It is not the act of a public protector, but a public enemy. And that is what advocate Mkhwebane has now become. She cannot be allowed to continue.

Whether or not the public protector is a stalking horse … remains to be seen. But that is now a valid question

The public protector might argue she was recommending only the initiation of a process. That is not true. Her intent, in her words, is clear enough. She determined the outcome of that process too. Indeed, she even provided the wording for it. She is not just out of her depth but also out of control.

Her recommendation is as devious as it clever. What she has done, is use what political capital her predecessor won, through a years-long legal battle to have her recommendations confirmed as binding, in order to try to stand apart from democracy itself. More importantly, her finding was entirely unnecessary. Whether Absa is liable for money it owes or not, she went far and beyond the matter at hand, by turning her attention to the Reserve Bank.

As advocate Paul Hoffman, who lodged the original complaint, said: "She’s on a frolic of her own, it has nothing to do with the complaint."

But there is more. The reckless abandon with which she casually made her announcement, suggested little or no attempt to consider the volatility of the South African marketplace.

Business Day reported, "The announcement sent the rand into a tailspin, with the local currency quickly weakening more than 2% against the dollar." 

Her pronouncement comes on the back of a shock recession, with business confidence at its lowest in 29 years, and several significant credit rating downgrades. It was done in reckless fashion and, it appears, with no forethought.

It is worth noting that, while the integrity of SA’s international bonds have been downgraded to “junk” status, our domestic bonds, which are responsible for about 90% of our debt, have not yet been downgraded to the same level. One of the reasons, cited by credit ratings agencies, is the independence of key institutions such as  the Reserve Bank. She will have dealt that fragile faith a blow.

For someone supposedly concerned with the public interest, her clumsy reveal cost the public a great deal. She has to date demonstrated not even the slightest concern about the impact. That alone is grounds for serious interrogation.

Those who will defend the public protector’s finding, who wish the Reserve Bank to be neutered, will argue she was simply fulfilling her mandate. She was not. Changing the Constitution is not remedial action. The Constitution is the remedy, from which action flows. She is mandated by the Constitution, she is not the Constitution itself. She serves it; it does not serve her. This whole debacle would seem evidence of a personality that, in no time at all, has allowed what power she has to go to her head. It is a total indictment.

No doubt, in typical South African fashion, the call will be to wait for the Reserve Bank to challenge the finding in court. It has already announced its intention to do so. That option is legitimate enough.

But it will take months; in the interim, the risk is that she will deliver a series of other, deeply flawed and problematic findings. And the violation is clear enough. The justice portfolio committee has a duty, at the very least, to call her before it and scrutinise her behaviour. It is wholly unacceptable and, frankly, embarrassingly inept.

It will be a test too of those who claim to have SA’s best interests at heart, in the face of the crisis that is the ANC. Cyril Ramaphosa and Nkosazana Dlamini-Zuma need to pronounce on this issue decisively, urgently and against it. Likewise, it is litmus test for the EFF. Julius Malema has held the Constitution up and sworn by it. Time to put his money, so to speak, where his mouth is. A great deal hangs on this debate.

Advocate Mkhwebane owes Parliament and the South African people an explanation. They put their faith in her, to uphold the Constitution. She has responded — for no reason, it appears, other than some personal motivation — by attacking the very thing she is supposed to be guarding. It is unacceptable. And the situation is untenable.