Helen Zille is probably right about one thing. Public protector Busi Mkhwebane does not understand the constitution.
This week Mkhwebane released a report in which she found that the Western Cape premier’s tweets about the legacy of colonialism had breached sections of the Executive Ethics Code and amounted to an incitement of imminent violence.
She ordered the Western Cape Legislature, to which Zille accounts, to take action against her. Let us be clear. Zille’s tweets were highly problematic, insensitive and revealed an attitude of disdain for the brutal, multigenerational impact of colonialism in this country.
However, while they are morally indefensible, Mkhwebane would have a hard time convincing a court that Zille’s tweets should be legally seen as inciting violence.
Her finding to this effect, therefore, raises one of many questions about her grasp of the law at best or, at worst, her intentions with this report.
Perhaps even more troubling is how the public protector arrived at the conclusion that the act which governs her office gives her the power to probe breaches of the Bill of Rights, which is essentially what she concluded Zille had contravened.
Such powers fall within the mandate of other Chapter 9 institutions such as the Human Rights Commission and not with the public protector.
Mkhwebane’s defence was that she is constitutionally obligated to probe matters brought to her office. Indeed she is correct. However, such an obligation does not at all permit her to overreach beyond her jurisdiction and undermine the sacred principle of the separation of powers.
Mkhwebane’s report against Zille suggests questionable legal capacity and possibly poor judgement on her part.
If successful, Zille’s pending court challenge of Mkhwebane’s findings would be yet another crushing blow to the credibility of an important public office of our democracy.