It has sadly become routine for members of the public, including political leaders, to rely on the courts to protect them from a public protector whose investigations and misapplication of the law have become legendary. The latest case, ruled on by the Constitutional Court this week, involves what appear to be elementary issues of law.
Public protector Busisiwe Mkhwebane had sought to overturn a high court decision on her findings in relation to President Cyril Ramaphosa's "CR17" campaign funding, which was in support of his bid for the ANC presidency in 2017.
Instead she emerged out of the ordeal with her image and that of this crucial Chapter 9 institution badly battered. The apex court was critical of the way she handled her investigation and questioned some of her findings. Quite damning was the court's remark that she had made "a series of weighty errors, some of which defy any characterisation of an innocent mistake".
The apex court was critical of the way she handled her investigation and questioned some of her findings
The court further said one of the "disconcerting features" of Mkhwebane's report was how she changed the wording of the executive ethics code.
The latest ruling is set to add impetus to moves in parliament to have Mkhwebane stripped of her position as public protector. The public protector is an important constitutional instrument to protect citizens against the abuse of power by those in office. A decision to remove a public protector from office is something that should never be taken lightly.
That is why it is crucial that the process to select anyone to hold this office involves intense scrutiny of the suitability of the candidates for the job. Unfortunately, rulings by the country's courts suggest that parliament did not do its job with due diligence when selecting the incumbent.
As a result, the National Assembly is now going through the painful process of trying to remove Mkhwebane from office. While there is merit to arguments that the sooner there is a change in that office the better for us all, it will be of little benefit to our democracy if she is merely replaced by another person the ruling party thinks would be sympathetic to its leadership.
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