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From the Daily Maverick</strong>
To protect the integrity of the office of the Public Protector, Mkhwebane must be removed
PIERRE DE VOS 21 FEB 2018 05:15 (SOUTH AFRICA)
A recent judgment of the North Gauteng High Court has dealt a fatal blow to the credibility of the current public protector, Busisiwe Mkhwebane, and it is difficult to see how she can recover from the effects of this judgment and remain in office. It has therefore become necessary to consider the unthinkable – that the National Assembly start proceedings to remove her from office.
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However, in discussing the matter the court suggests that it may well be that the public protector had not fully taken the court into her confidence (in other words, that she had lied to the court). At some point, the court said, she “pretended” to have acted on advice which she only received after acting. (So, dishonesty again.) In fact, the court held that she had acted in bad faith in her dealings with the court (which is why it slapped her with a personal cost order for part of the legal costs.). The court stated as follows:
“The public protector did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector… She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected from her. She failed to explain her actions adequately…[T]he public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.”
In terms of section 194 of the Constitution the public protector may be removed from office only on the ground of misconduct, incapacity or incompetence. The National Assembly is the body which must first determine whether the public protector is guilty of misconduct or incompetence, after which at least two-thirds of its members must support her removal before she can be removed.
I have argued that these terms should be given a restrictive meaning and that there should be a high bar for finding that the public protector is guilty of misconduct or incompetence. It would, however, be difficult to argue that lying in a report, then attempting to mislead the court about that lie, all while acting in bad faith and in a biased manner, do not meet the minimum requirements for removal.
What we have now is an incumbent public protector whom a court has found to be dishonest. This goes far beyond a finding that she made a mistake or misconstrued her powers as it goes to the heart of what renders her effective: trust. It is not easy to trust somebody who has lied to the public and to the court and her legitimacy has therefore been fatally compromised. 2
It is for this reason that there is an urgent need for the National Assembly to begin the process of removing the public protector from office. There is a real danger that a failure to act will fatally compromise the entire office of the Public Protector. To support and protect that office, the person now leading it must be removed forthwith. DM
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