GARETH VAN ONSELEN: How Malema got the Public Protector completely wrong

“We didn’t know what we were doing. Now we regret that thing. We regret it. SA, we regret supporting this comrade. She is going to collapse that office.”

~ EFF leader Julius Malema, on the appointment of Public Protector Busisiwe Mkhwebane, January 23 2017

Julius Malema’s admission that he and his party made a monumental mistake when it came to its support for the appointment of Public Protector Busisiwe Mkhwebane, came and went with the usual superficial glee that marks so much EFF rhetoric.

It was amusing that Malema had got it so wrong. Funny in the way he fell on his sword, seemingly so completely. Worth a few headlines but, really, now that he had aligned himself with conventional thought, in a press conference of fire and brimstone, all was forgiven. At least he had come to his senses.

And so the mistake itself was never interrogated and soon forgotten, like so much EFF hypocrisy and contradiction. Just another fleeting fireworks display from SA’s leading political pyromaniac.

But the appointment of the Public Protector is no small matter. It is made only once every seven years. The office has the ability to profoundly influence the political landscape. Its independence is a critical battleground in the contemporary fight for the constitution. As Mkhwebane’s predecessor, Thuli Madonsela demonstrated, and her predecessor, Lawrence Mushwana, in turn, the incumbent can go some considerable way towards making or breaking the country’s democratic culture. The power the office wields is immense and thus, the process to elect a Public Protector, considered and extensive.

So, rather than simply dismissing Malema’s mistake as a mere momentary indiscretion, let us give him the respect he deserves as an elected public representative and political leader and look in some detail at how the EFF’s dire performance in that committee led to it supporting a candidate that has, to date, been severely and comprehensively criticised by the courts, the opposition and the fourth estate as legally incompetent, biased or inept.

Malema was absent from many of the initial interviews with Mkhwebane and it was only when the process reached the finalisation stage, that he dealt with her directly

The brilliant Parliamentary Monitoring Group (PMG) provides on its website a summation of the whole process to appoint the Public Protector, which ran from May 26 to August 30 2016.

The two sub-processes of primary concern were the initial interviews with all candidates for the position and the finalisation of the appointment, after considering five shortlisted candidates. The PMG’s documented minutes for those meetings, supplemented by Parliament’s YouTube channel, provide a full record of the EFF’s contribution, as it does for all parties involved.

It is worth noting that the EFF assigned to the ad hoc committee appointed to nominate the new Public Protector — no less than its leader, Malema himself. He was the designated EFF member. His deputy leader, Floyd Shivambu, was appointed as the EFF’s alternate. Ostensibly, this was a sign of how seriously the party took the process. That said, Malema was absent from many of the initial interviews with Mkhwebane and it was only when the process reached the finalisation stage, that he dealt with her directly.

On July 13 2016, 14 out of the 59 candidates were shortlisted for interviews by the committee. Adv Busisiwe Mkhwebane was proposed by Prof Christian Msimang, of the IFP and accepted as one of the 14 shortlisted candidates. The EFF made no proposals for the shortlist, because, according to the PMG, neither Shivambu nor Malema were present for that meeting.

Thus, they abdicated any responsibility for the shortlist.

The relevant interviews took place on August 11 2016. According to the PMG, Shivambu was present; Malema was not.

Mkhwebane was the seventh candidate to be interviewed. Shivambu’s questions to her were the following: whether she had ever been a member of a political organisation; if she had any proximity to a politician at national level; for her to explain her approach to radical economic change; limits to the Constitution’s ability to address “the needs of the people” and poor service delivery with reference to her “political nature”; how she would improve access to the office of the Public Protector; her approach to funding the Office of the Public Protector; and, finally, how she would enforce the Executive Members Ethics Act.

The first thing to notice about all these questions is that they are essentially political in nature. Shivambu made no attempt to interrogate Mkhwebane’s capability: her legal experience and expertise; her understanding of the law and its application; her knowledge and insight into how the Office of the Public Protector operated as a Chapter 9 Institution; its mandate and the extent or limit of its legal powers. In short, he made no attempt to vet her skill and ability, merely her attitude to various political questions.

Some of those political concerns are, of course, important — but they were asked entirely and absolutely at the expense of any critical interrogation of her legal proficiency. This element — Mkhwebane’s legal expertise — would later come to be the defining criticism, among many, of her conduct in office.

On August 18 2016, the committee met to shortlist five candidates for final consideration. According to the PMG, Shivambu was present, Malema was not.

There was almost no discussion in the committee when it came to Mkhwebane. And she was retained without any opposition.

On August 24 2016, the committee met to finalise its nomination to the president for the position of Public Protector. According to the PMG, both Shivambu and Malema were present.

When it came to a discussion about Mkhwebane, both Malema and Shivambu spoke. Malema started by saying that, so excited was he by the prospect of Mkhwebane, he had already Tweeted his approval. He had done so on August 11, when he said, “Ms Busisiwe Mkhwebane deserves to be given a chance and by the way I don’t know her. I'm impressed with her performance so far...”

Malema went on to say, according to the PMG minutes, that he had, however, developed some reservations when he had heard she was the preferred candidate of then president Jacob Zuma. But, he said, he could not believe that and, besides, Zuma would be leaving office soon. He said the institution would expose her if she was politically biased and so “this made him comfortable to recommend Adv Mkhwebane”. He argued, “What Adv Mkhwebane did in her interview dismissed all rumours and she should be given an opportunity.” He said tough interviews had revealed she had a “cool head”, which was what was needed. The PMG minutes paraphrase Malema as saying, “If anything, Adv Mkhwebane was very close to what was seen in Adv Madonsela.”

The truth is, the EFF’s contribution to the selection of Mkhwebane as Public Protector was not a only a matter of poor judgment, it was an exercise in rank incompetence and disdain for Parliament

When it came to Shivambu, he used the opportunity to grandstand somewhat, speaking about how the Public Protector was a “David” in the face of a “Goliath”, not vice versa, before returning to his more obscure concerns, like the fact that, “Adv Mkhwebane, during her interview, was one the few candidates to talk about the accessibility of the Office of Public Protector to the most rural areas”. PMG records him by concluding as arguing, “Adv Mkhwebane was experienced, patient and had the correct temperament — she should be recommended to the President to make the appointment.”

Again, what is significant about both these contributions, is the utter and total lack of any consideration as to her actual legal skill or ability. By way of comparison, DA representative on the committee, Werner Horn, made the following observation, according to PMG: “His opinion was that because Adv Mkhwebane was an investigator during that specific time meant it was not necessarily to her advantage. He thought Adv Mkhwebane was primarily a civil servant — while this might have given her good experience and operational knowledge of the Public Finance Management Act (PFMA) and perhaps specific insight on maladministration and even corruption, the fact was that it did not necessarily give one the best legal experience.”

The DA, on the basis of this and other reservations, did not support the recommendation of Mkhwebane. All of its members placed great emphasis throughout the process on her superficial legal background.

Since her appointment, Mkhwebane has been taken through the legal ringer. The primary argument, above all others, is that she does not understand the law or its application and, in particular, as evinced by her Bankorp/CIEX report, that she does not understand the Constitution itself or the role of her office in relation to it.

In a scathing judgment on February 16 2018, the North Gauteng High Court set aside the Bankorp/CIEX report, saying among other things, “In the matter before us it transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear‚ favour or prejudice.”

Various other reports of hers have been damned as legally incompetent, ignorant and biased.

The EFF itself has come to this conclusion. In a January 11 2018 statement, the EFF said, “Busisiwe Mkhwebane’s ignorance of the law has long caused us to question her constitutional literacy and judgment” and on February 16 it went further still, saying in response to the High Court judgment, “The court openly said that it was clear Adv Mkhwebane does not fully understand her constitutional duty to be impartial. This is due to not disclosing her meetings with [the] state President and state security during the court process and investigations.

“If this important office is to have integrity, it cannot be occupied by people who lie or are misleading. Above all, who are impartial [sic] and hell-bent on undermining the mandate of the office and the Constitution. We call on her to step down with immediate effect; this judgment means she has failed in her duty.”

But when it came to selecting the Public Protector, the EFF — via its two designated committee members, Shivambu and Malema — failed fundamentally and absolutely to ever interrogate this aspect. Indeed, Malema, in particular, showed little more than contempt for the entire process, choosing only to appear at the final meeting, then having the temerity to argue that, although he “did not know her”, she “was very close to what was seen in Adv Madonsela”.

The truth is, the EFF’s contribution to the selection of Mkhwebane as Public Protector was not a only a matter of poor judgment, it was an exercise in rank incompetence and disdain for Parliament. And the two primary culprits are the EFF leader and deputy leader. They have escaped without a single, meaningful critical interrogation of their dire and costly performance on that committee.

But why? The first reason is that, as argued elsewhere, the media does not take the EFF seriously. It refuses to interrogate in any detail its actual character or performance, choosing instead to focus exclusively on the provocative rhetoric of its leader. In doing so, the media allows the EFF to get away with a great many political crimes other parties would be publicly hung, drawn and quartered for.

Consider, by way of illustration, the DA’s crisis on affirmative action in 2013. Back then, two rogue DA MPs, either as a consequence of the DA’s ideological incoherence or as a result of incompetence, argued in favour of the Employment Equity Act in the labour committee, the result of which saw the party then vote in favour of it in the National Assembly and a wide range of highly racialised amendments to the legislation.

It precipitated a crisis so big inside the DA, as public and internal pressure rocketed, that Helen Zille dedicated a whole chapter to it in her recent autobiography. For some idea of scale and extent of the fallout, see this Politicsweb timeline.

But that, of course, is the DA. The EFF is another beast altogether. Who cares how it behaves? It can take South Africans for a complete ride, as it did in August 2016, and escape without any damage. The very next day, Malema — who would not have been held to account anyway — can hold a new press conference and he will be welcomed, his reputation without a single blemish. Yesterday forgotten. His conduct whitewashed. It is disgraceful.

Shivambu made no attempt to interrogate Mkhwebane’s capability: her legal experience and expertise; her understanding of the law and its application ... In short, he made no attempt to vet her skill and ability, merely her attitude to various political questions.

There is a short YouTube video of Malema ranting and raving to press on January 23 2017, as he realised just how fundamental his error on Mkhwebane had been. Watch it.

“We didn’t know what we were doing”, he says. “We”? No, not “We”. There is a single letter Malema is looking for. It is “I”.

Astonishingly, Malema said during his fireworks display, he was told by no less than the security services themselves that Mkhwebane was a “spy”, an allegation that has dogged Mkhwebane ever since the appointment process. “I was the first one to receive a message she was a spy, by reliable spooks,” he says. “I was told by spooks themselves, she was a spook”. In the background you can hear the media laughing. Malema was already applying his amnesia to their minds.

He says he told the committee. There is no record of him even being in the committee for most of the time, never mind telling it.

“But”, he says, “why deny an African child an opportunity, she has proved herself through an interview, let’s give her benefit of doubt [sic]”. More laughter from the media. Oh how the media laughed and chuckled its way through that press conference. He really is so funny, is Malema. Later he says, “[Her appointment] was an achievement for black females, and that was our argument, that we cannot replace an African female with a male.”

In essence, all Malema did was compound his complicity in the shambles that was the EFF’s performance on the Public Protector, as he demonstrated it was the party’s racial agenda, rather than the pursuit of excellence and merit, skill and expertise that informed its decision-making. But no one held him to account. He is the most unaccountable politician in SA and the media lovingly facilitates it all, in the name of entertainment.

Well, the EFF has now turned no less than the selection of the Public Protector into a game. SA will pay the cost for that. But not the EFF. It will carry on, blameless and without consequence, in an environment where its actions mean nothing in the face of its words.

• Van Onselen is the Head of Politics and Governance at the South African Institute of Race Relations