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Advocate Busisiwe Mkhwebane positioned for Public Protector job

Sep 8, 2016
Advocate Busisiwe Mkhwebane positioned for Public Protector job

It is now up to President Jacob Zuma to decide whether Advocate Busisiwe Mkhwebane is a fit successor for Public Protector, Thuli Madonsela, after the National Assembly endorsed Mkhwebane for the post on Wednesday night. Madonsela's term ends in October.

Advocate Mkhwebane, who beat 78 other candidates in a marathon interview process, needs the approval of 60% of MPs (or 240 votes) in order for her name to be sent to the President for approval. She ended up getting 263 votes.

She got the votes from ANC, EFF, IFP, NFP, ACDP and other smaller parties. However, COPE absatined from voting while the DA had already indicated that they would not endorse Mkhwebane’s candidacy claiming that she worked as a spy for the State Security Agency while employed as an immigration officer at the South African embassy in China.

DA Shadow Minister of Justice, Adv Glynnis Breytenbach, said that the DA has since decided to not support her nomination.

"This is on the grounds that her appointment would be unreasonable as she was by no means the best candidate for such a position and was illogically preferred over other qualifying candidates.

"Adv Mkhwebane may turn out to be a capable candidate for the position of the Public Protector and we wish her well if Parliament and the President confirm her nomination. However, we contend that her qualifications and experience make her unsuitable for this position," Breytenbach said.

The DA gave the following reasons, it claimed:

  • She has little or no practical experience to justify such an appointment when compared with the experience of the other four candidates;
  • She was employed by Home Affairs as a Director (salary level approximately R1 million annually) immediately prior to this process being initiated;
  • She changed employment around June 2016, and went to State Security Agency (SSA) as an analyst.
  • When asked in the interview why she had changed jobs for what is ostensibly a demotion, her reply was that she “was passionate about the Constitution”. While this is noble value to hold; it alone does not make her eligible for the position or separate her from the other more qualified candidates; and
  • We have been advised that the time spent as an “immigration officer” in China is also suspicious, having been informed that this is simply coded language for being on the payroll of SSA.

"In the absence of a logical explanation for what is seen as a demotion the ineluctable conclusion is unfortunately that Adv Mkhwebane is on the payroll of the SSA. This situation is even more problematic in the current climate in the country, where the justified view is held that President Jacob Zuma is abusing State departments, the SSA in particular, to hang on to power at all costs. We hold the view that the Public Protector cannot be seen as even remotely connected to the State Security Agency," Breytenbach said.

"While this doesn’t make Adv Mkhwebane the worst candidate, it does not make her the best either. Further to this, the secrecy around her work at the SSA makes it almost impossible to ascertain whether or not her role and conduct are beyond reproach and befitting the office of the Public Protector who is constitutionally mandated to be 'a fit and proper person to hold such office'.

"Additionally, Adv Mkhwebane could not confirm that she had 'acquired any combination of experience … for a cumulative period of at least 10 years' as is demanded by the Constitution."

Breytenbach said other issues that gave rise to concern and moved us to be unwilling to support her nomination are the following:

  • Both Judge Weiner and Prof Majola were stronger candidates, in terms of experience and in terms of the quality of their interviews;
  • Prof Majola as a candidate brings the bonus of his involvement in the Special Tribunal in Rwanda over the last seven years, he, unlike Adv Mkhwebane, has been at a certain distance from Government in South Africa.
  • Adv Mkhwebane, on the other hand, has always been employed in and around government and has already indicated that she wants to have a more “friendly relationship with government”;
  • Much was made of the fact that she was a senior investigator at the office of the Public Protector previously, but in our view, the fact that she served during the tenure of Lawrence Mushwana, when the office showed little to no appetite to vociferously investigate government corruption.

"As such, with the ever present danger of state capture by the President, and the fact that all independent institutions with an investigative capacity have already been captured leaving only the Office of the Public Protector and Judiciary relatively untouched, it is of enormous importance to ensure that the appointment of the new Public Protector is beyond any suspicion," she said.

"Given the overall performance of the candidates at the interviews and a comparison of their qualifications and experience, the single-minded support for Adv Mkhwebane is unreasonable in our view.

"We hold the view that Judge Sharise Weiner had the best interview, but that Professor Majola is the best candidate. We would be very comfortable nominating him for the post."

She said that to replace the fearless Adv Madonsela with a candidate who hasn’t shown the necessary potential to pursue government corruption would be undermining our hard-won constitutional imperatives.

"The DA believes in the Rule of Law and stopping corruption. To this end we have worked tirelessly during this process to appoint the new Public Protector, to ensure that the right woman or man is appointed to serve the interests of the people instead of the narrow interests of a political cabal set on advancing their own self-interested agenda.

"We simply cannot risk these principles with the nomination of Adv Mkhwebane."