To allies of President Cyril Ramaphosa, South Africa’s anti-corruption watchdog is a wrecking ball who is abusing her office and could derail efforts to clean up government and turn the economy around.
To Ramaphosa’s opponents, Busisiwe Mkhwebane is holding the country’s top officials to account without fear or favour.
Mkhwebane, who was plucked from relative obscurity when she was appointed public protector in 2016, denies playing politics.
She says some of her most attention-grabbing investigations were the result of complaints raised by members of the opposition, which she has a duty to scrutinise.
But her recommendations for disciplinary action against Ramaphosa and one of his closest allies, public enterprises minister Pravin Gordhan, have placed her at the centre of a bitter power rivalry in the governing African National Congress (ANC) between supporters of the president and his scandal-plagued predecessor Jacob Zuma.
Political analysts warn that the powers of Mkhwebane’s office, which played an important role in keeping Zuma in check, can just as easily be used to settle political scores.
The public protector has authority enshrined in the constitution to investigate alleged wrongdoing by public officials and demand remedial action.
Because Ramaphosa and others are bound to comply, the consequences of her investigations can be far-reaching. One danger, analysts say, is that Mkhwebane will tie up Ramaphosa and his allies with questionable investigations, which will take them months to fight in the courts.
“The public protector is polarising politics and exacerbating factionalism in the ANC,” said Ebrahim Fakir, an analyst at the Johannesburg-based Auwal Socio-Economic Research Institute. “She could distract Ramaphosa from critical tasks like creating jobs and attracting investment.”
Mkhwebane, who did not respond to questions submitted by Reuters last week, remains an enigmatic figure to many South Africans.
A former security analyst and mid-level bureaucrat, she worked in the public protector’s office between 1999 and 2005 before moving to the home affairs ministry. She did a stint in the South African embassy in China before joining the state security agency in 2016.
When her candidacy was discussed before a parliamentary committee, two opposition parties, the Democratic Alliance (DA) and Economic Freedom Fighters (EFF), said they had been tipped off that she was Zuma’s pick and were worried about her links to the state security agency, a ministry staffed by Zuma loyalists.
ANC lawmakers, who made up roughly half the members on the parliamentary committee that recommended her nomination, said they found her interview impressive.
“But Mkhwebane had less legal experience than some other applicants, and former colleagues have since raised questions about her competence.”
An official who worked with Mkhwebane at the home affairs ministry told Reuters her approach to the law at that time was reckless.
Mkhwebane supported a policy change to house refugees in processing camps pending a decision on their status, which would have been in contravention of the constitution and an international refugee convention, according to the official, who requested anonymity to discuss internal deliberations.
Only when home affairs got a legal opinion from the foreign ministry advising against the move did Mkhwebane back down, the official said.
SELECTIVE JUSTICE?
One of the main accusations against Mkhwebane is that she is selective in the cases she pursues.
Mkhwebane says she has issued more than 100 reports since she took office and dealt with more than 34,000 complaints.
Many of those haven’t attracted much media attention.
But when she has taken on high-profile cases, such as her investigations into an apartheid-era bank bailout by the central bank, a donation to Ramaphosa’s 2017 campaign for ANC leader or an investigative unit set up by Gordhan while he was tax commissioner, they have often ended up in the courts.
Part of the problem, legal experts say, is that she has made errors that fuelled suspicions of bias.
South Africa’s highest court ruled last week that Mkhwebane’s investigation into the bailout was flawed and that she had misrepresented important facts under oath.
Pierre de Vos, a constitutional law expert, said her reports concerning Ramaphosa and Gordhan also contained errors. In blog posts, he described her finding that Ramaphosa had misled parliament about the donation as a “legal and factual mess” and called the Gordhan investigation “irrational.”
Ramaphosa has said he will challenge Mkhwebane’s findings in court. A judge on Monday granted Gordhan’s request for an urgent interdict to stay disciplinary proceedings against him.
“Her blunders were a product of her secretive approach to investigations.”
ANONYMOUS SOURCE
One person who has worked closely with Mkhwebane in her current role said most of her blunders were a product of her secretive approach to investigations.
The person, who was not authorised to speak to the media, said Mkhwebane did not consult widely and had surrounded herself with people who agreed with her.
Mkhwebane has said civil society groups are waging a campaign against her and that her office is underfunded and has skills shortages.
That doesn’t wash with Ramaphosa’s allies.
ANC Chairman Gwede Mantashe said last month that the public protector was playing a political role, while a senior Communist Party official called her a “hired gun.”]
Outspoken ANC officials such as Tony Yengeni, who support more radical policies than Ramaphosa, leapt to her defence, hailing Mkhwebane as “our Lady Justice.”
ORDAINED BY GOD
After the constitutional court judgment, calls for her removal gained momentum.
The DA asked the speaker of parliament to schedule an early debate on Mkhwebane’s fitness to hold office.
But the ANC, which has around 58% of lawmakers in the lower house, is divided over what should be done with Mkhwebane.
Removing a public protector before the end of their non-renewable seven-year term is not easy. First a parliamentary committee would have to submit a recommendation to the lower house, then that recommendation would have to be approved by a two-thirds majority.
The EFF, with 11% of the seats in parliament, would most likely vote against Mkhwebane’s removal, as would a potentially sizeable part of the ANC.
Ramaphosa doesn’t want to be seen to be counting on the DA, his party’s main rival with 21% of lawmakers, for support.
“With an investigation hanging over him, Ramaphosa also can’t be seen to be pushing too hard for her removal,” analyst Fakir said.
Even if such a motion were to pass, Mkhwebane could decide to challenge her removal in court.
Addressing a sheriffs’ association last month, she was defiant.
“I strongly believe I was placed in this position by the God that I serve,” she said, “and I believe that only he can remove me if he is of the view that I have failed.”
