The public protector is increasingly coming under attack from governing party politicians who fear that the maladministration, misspending of public funds, disrespect to voters and outright corruption of members of their party will be investigated and exposed. This is to be expected. No one wishes to be called to account for “eating” public funds or for acting in ways that completely disrespect the dignity of voters.
Last week an ANC MP, Bongani Bonga, complained before a justice portfolio committee meeting in the National Assembly (NA) that public protector Thuli Madonsela should desist from voicing views “that are political in nature”.
The Chair of the justice portfolio committee Mathole Motshekga supported his colleague and suggested that Chapter Nine institutions were duplicating each others’ work, and that this was adding to the public protector’s excessive caseload. Addressing Madonsela, he said: “I think the powers of these institutions, including yours, should be reviewed to avoid this costly duplication.”
While these attacks are not surprising or novel (after all, politicians all over the world will always try to protect themselves and the leaders of the party they belong to), they are not particularly well-informed.
In terms of section 182 of the Constitution the public protector has the power to investigate “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action”.
Section 6(4) of the Public Protector Act further states that the office of the public protector may investigate a wide range of acts and omissions – either on his or her own initiative or on receipt of a complaint.
These include any alleged maladministration in connection with the affairs of government at any level; abuse of power or unfair, capricious, discourteous or other improper conduct by a public official; corruption with respect to public money; and improper or unlawful enrichment by a person as a result of the actions in the public administration at any level of government. However, for obvious reasons (relating to the independence of the judiciary) the public protector may not investigate court decisions.
The Nkandla investigation by the office of the public protector thus fell squarely within her mandate as set out above, relating as it did to maladministration, possible corruption as well as the improper and unlawful enrichment of President Jacob Zuma.
The only possible overlap in jurisdiction between the public protector and other Chapter Nine institutions relates to investigations of unfair or discourteous conduct by state officials. When the unfair or discourteous treatment may constitute unfair discrimination based on race, sex, gender, sexual orientation or some other relevant ground this may also be investigated by the Human Rights Commission or the Commission for Gender Equality. The Equality Courts can also deal with the same matters.
If the honourable Motshekga believes that discrimination based on race, gender or sexual orientation is not a particularly important matter and that citizens should rather not have the option of approaching different bodies to have this investigated, the Constitution or the relevant legislation can therefore be amended to make it more difficult for citizens to challenge racism, sexism and homophobia. But I suspect that is not official ANC policy.
No other Chapter Nine body may investigate maladministration, corruption, self-enrichment or discourteous and tardy service not related to the abuse of human rights. It is therefore unclear what Mathole Motshekga was referring to when he stated that the public protector and other Chapter Nine bodies were duplicating each other’s work.
It is important to recall that the independence and impartiality of the public protector is constitutionally protected. Another body – such as Parliament or the Presidency – cannot amend the findings of the public protector because such a body disagrees with these findings. This is so because it is a criminal offence to do anything in connection with an investigation of the public protector that would have constituted contempt of court if it had been done or said about court proceedings.
Just as it would constitute contempt of court for any individual to try to amend the findings of a court of law, so it would constitute a criminal offence to do so regarding an investigation of the public protector. It is also a criminal offence to insult the public protector or deputy public protector. You are liable for imprisonment for a period not exceeding 12 months if you commit such an offence.
Of course this does not mean that anyone – including Parliament – cannot discuss the findings of the public protector and cannot criticise the findings on substantial grounds. However, imputing bad faith on the part of the public protector – as some politicians have been doing – does not constitute criticism of the findings of the public protector and would therefore constitute a criminal offence.
The public protector is in a difficult position. Her office does not have the same powers as a court of law and her findings cannot be enforced in the same manner as the orders of a court.
Nevertheless section 182 requires the public protector to “take appropriate remedial action” when necessary. This means that after concluding an investigation the public protector must make findings and must recommend the appropriate remedial action to be taken by the relevant authority.
Because the findings of the public protector do not have the same force of law as a court judgment, often the only way to ensure that the “appropriate remedial action” is taken is through publicity of the findings. That is why section 8 of the Public Protector Act provides for the publication of the public protector’s reports. Often the public protector will have to ensure the wide dissemination of her findings and recommendations to try and shame the relevant public officials or the politicians into taking the required remedial action.
I suspect it is this aspect of the public protector’s mandate that has upset the honourable Bonga. I assume the honourable Bonga believes the public protector must desist from using her authority and standing as an honest and independent investigator to try to shame or embarrass public officials and politicians into taking her findings and recommendations seriously.
But where politicians launch criminal personal attacks on her integrity in order to try to discredit the uncontested factual findings in her reports, she may be forced to engage with the public directly about the findings of a report.
Ironically, then, were public officials and politicians to stop launching personal attacks on the public protector as the honourable Bonga did (an attack that may well constitute a criminal offence), it would be unnecessary for the public protector to engage widely in the media about the findings of a particular investigation.
Because some of the investigations conducted by the public protector about the unlawful or possibly criminal conduct of state officials or members of the government, any engagement about the findings of such a report will inevitably be viewed as “political in nature”. When it is revealed that a politician has acted unlawfully or has unlawfully benefited from public funds, such a revelation inevitably has political consequences as it lowers the standing and the trust of that politician in the eyes of ordinary voters.
This does not mean the public protector who made the findings and then talked about them is making statements of a political nature. She is making statements based on her investigations and findings.
The person to blame for the bad publicity is of course the politician, not the public protector. To blame her and to say that she makes statements that are political in nature is nothing more than shooting the messenger. It is a bit like attacking a person for calling out another person on his or her racism, sexism or homophobia.
Interestingly, the honourable Motshekga may well have had a point when he argued that there is a costly duplication of powers of some Chapter 9 institutions.
I am not sure he actually read the Report on Chapter 9 institutions prepared by the ad hoc Committee of the NA chaired by the late Kader Asmal. If he did, he would know that the Report found that the mandates of the South African Human Rights Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities do overlap.
The Asmal Report recommended that these three bodies – along with the Pan South African Language Board – be amalgamated into one “super” Human Rights Commission, empowered and resourced to assist ordinary citizens with enforcing their human rights.
Because it is prohibitively expensive for almost all of us to approach a court of law when our rights are being infringed, both private institutions (especially big companies) and state officials are guilty of undermining the basic rights of citizens – especially the vulnerable and marginalised citizens in our society.
Creating a “super” Human Rights Commission with the powers and resources to investigate and resolve human rights complaints would empower citizens vis-à-vis powerful private and public institutions. It will help to affirm the human dignity of all and will create a body of similar stature as the public protector in the field of human rights protection.
Imagine such a “super” Human Rights Commission had the resources to investigate and deal with every single complaint about the systemic racism, sexism and homophobia that still plague our country; the racists, sexists and homophobes across the country would quake in their boots – just as the politicians now do when they hear the current public protector is going to investigate them.
If our government were truly serious about restoring the human dignity of all citizens, it would take down the Asmal Report from the shelf where it has been gathering dust and would be discussing ways of implementing these radical proposals aimed at protecting ordinary citizens from the most flagrant human rights abuses.
In an ideal world Mathole Motshekga and the other members of the justice portfolio committee would be spearheading such a move instead of attacking the public protector for doing what she has been constitutionally tasked to do. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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