Nkosikhulule Nyembezi
Cape Town - As the curtain slowly comes down early on suspended Public Protector Busisiwe Mkhwebane, it is interesting to reflect on how she has been holding on to her job by a thread lately.
This transformation of the public protector’s once excellent and stable office over the past five years by the divisive, populist parasite agenda of factionalism in the ANC will be one of Mkhwebane’s lasting influences.
Mkhwebane is heading to court on Tuesday to attempt to enforce the rare victory she scored last week.
A full Bench of the Western Cape High Court ruled that President Cyril Ramaphosa’s decision to suspend her was invalid and “improper” – after she sent him questions about the Phala Phala break-in.
The court set aside Ramaphosa’s decision to suspend her as unlawful because an ordinary person could reasonably see the action as retaliation for her decision to investigate a complaint against him following the theft at his game farm.
It noted that Ramaphosa, when he ordered Mkhwebane’s suspension, was sitting with a letter from her with a long list of questions about what had happened at his farm.
Usually, when a court orders the reversal of Mkhwebane’s suspension, all eyes should focus on the new beginning that has been ordered by the court, with scarcely a backward glance towards the old that gave rise to litigation in the first place.
In the eyes of ordinary citizens not trapped in factional battles, the wattage of Ramaphosa’s decision to suspend Mkhwebane in the manner he did is supposed to dim instantly.
His words and intentions are supposed to be no longer weighed or even heard, and they are supposed to be treated as history, and everyone is supposed to want to think about tomorrow and allow Mkhwebane to finish her term of office unless impeached by Parliament.
There is only one path that avoids that fate. It is the multi-layered political agenda sponsored by various interested parties using the courts and democracy-supporting structures established by the Constitution. As fate has it, both Mkhwebane and the DA took this path as the days of legal and political rituals stretched out in time and place. Political decisions to act on last week’s High Court decision have quickly followed.
Mkhwebane seized the stage early as she claims in court papers that her reputation and dignity continue to suffer while she is suspended. She had planned to return to work as early as Saturday morning. But, her deputy and acting public protector, Kholeka Gcaleka, blocked this by writing to Mkhwebane, informing her that she had received legal advice that the suspension remains effective because an appeal to the Constitutional Court suspends the High Court order.
She scripted her intentions to leave no doubt that she considered it no more than the climax of her determination to clip the wings of Ramaphosa’s political power. While her suspension might look like a long sharp nail in her career coffin that has been a political odyssey, her message is that this is not the end.
She offered self-pity rather than a glimmer of self-awareness: “I have already been on suspension for more than three months. The amount of time it may take to have the appeal heard would effectively make any subsequent victory hollow.”
She sought to cast her record in office as one of glorious achievement: “Nothing can repair the further damage which will be caused if this application is not granted. The harm will not only be confined to me as a person but to my family members, loved ones and, more importantly, the administration of justice and the public I’m employed to protect.”
There was the now-traditional, passive-aggressive reference to the interference with her work: her suspension also caused inevitable destabilisation and delays, not only to the Phala Phala investigation but the broader work of the public protector.
When the DA had their turn at filing court papers, one got a glimpse of the strategy Mkhwebane might have in mind in seeking to enforce the court decision to reverse her suspension.
The DA’s lawyers stressed that section 172(2)(a) of the Constitution requires that the apex court confirm the high court order before it can come into effect.
Mkhwebane’s lawyers, however, disputed this. She tried to deploy upbeat compulsory vocabulary on these occasions: she rejected the confirmation suggestion “with the contempt it deserves”. She also accused the DA of trying to prevent her “ ... from resuming my duties, by hook or by crook and any means necessary”.
But that was barely to acknowledge the in-tray that still confronts her as the court judgments against her decisions continue to pile up, adding to doubts regarding her fitness to hold office.
Still, the thought lingers that the intensifying ANC factional battles before its elective conference in December will complicate Mkhwebane’s burden.
The National Prosecuting Authority’s failure to present strong cases against prominent politicians implicated in corruption and state capture will complicate matters further. Her task will be to do the hard, thankless work of paddling narrow political interests from which fate has not spared her the negative consequences.
And then, when she fails and falls on her sword, she cannot finish sweeping in. She will be unable to fulfil the promise to do what the luckless ANC conference delegates in Nasrec, unblessed with charisma and cash to amass voter support, failed to do four years ago in efforts to elect a leader favoured by former ANC president Jacob Zuma. It is her particular version of failing upward.
We are entering a period that could turn grave, which cries out for genuine leadership in institutions supporting democracy. Yet the offices of the public protector and that of the president of the country have rarely looked emptier.
Nyembezi is a political analyst and human rights activist
Cape Times