Liza van DeventerThe tenure of the incumbent of the Office of the Public Protector, Thuli Madonsela, is coming to an end in October and Parliament has started the process of finding a suitable person for this very important office which plays a seminal role in the functioning of our constitutional democracy.
Such democracy is a fundamental character of our constitution, and is multifaceted in its operation of the system of government involving, among other things, a multiparty political system of government, ensuring accountability, responsiveness and openness. For this reason, chapter 9 of the constitution makes provision for state institutions supporting constitutional democracy.
The Office of the Public Protector is one of six Chapter 9 institutions established by section 181(1) (a) of the constitution. In order to achieve the above, these institutions are independent and subject only to the law and the constitution.
They must, therefore, operate impartially, and perform their functions and duties without fear of undue interference.
The constitution sets out the purpose and function of this official who is an ombudsman in relation to the state, and is obliged to:
* Investigate improper and prejudicial conduct in state affairs or public administration.
* Investigate maladministration and abuse of power in state affairs.
* Report on the findings of the investigations.
* Advise on appropriate remedies to the above.
Process and importance of appointing a new public protector
According to section 183 of the constitution, the public protector is appointed for a non-renewable period of seven years.
As indicated above, Thuli Madonsela’s tenure is coming to an end and a new public protector has to be appointed. For this purpose, advertisements have been placed in the media.
The candidates nominated will be published for public scrutiny, after which the relevant parliamentary body will present a report which will nominate a particular candidate to the National Assembly for formal appointment.
It is submitted that Madonsela has proved to be an exemplary and courageous official in her role as public protector.
Her findings, especially in relation to the Nkandla saga, involving the financial liability of President Zuma for certain upgrades made to his private homestead, concerning which the Constitutional Court – in a monumental judgment – were found to be legally binding, unless taken on judicial review.
This seminal judgment set a benchmark for the manner in which government must deal with corruption and maladministration when contained in a report of the public protector.
Also, in another equally significant report in relation to the handing out of food parcels at ANC rallies, Madonsela made a clear distinction between party and state.
In this regard, members of the public and opposition parties had complained about “Operation Hlasela”, concerning which they asserted that Premier Magushule used food parcels to advance the election campaign of the ANC, the ruling party, and thereby she found that he had prejudiced other parties.
In her findings in this regard, she declared that “the allegation of the conflation of the party and state is substantiated”, and commented further that “you can’t endorse any political party on a government platform”.
It is vital that Madonsela be replaced by a person of similar calibre. This is a manifest challenge to all the political parties involved in a relevant parliamentary committee who must make the nomination.
In particular, it is a singular challenge to the ANC, which has a majority in the committee and the National Assembly.
Since Madonsela’s findings, referred to above, have been an acute embarrassment to both the ANC and President Zuma, there could be a strong inclination to appoint someone who would not be as independent and fearlessas Madonsela has been and to metaphorically “toe the line”, as Lawrence Mushwana, the previous public protector, did in thenotorious so-called Oilgatescandal.
In this case, Imvume Holdings, a petrol company, was accused of paying R11 million of state money to the ANC shortly before an election.
Subsequently, the Supreme Court of Appeal, in appeal proceedings, threw out Mushwana’s investigation, holding that it was so “scant as not to be an investigation at all”.
His excuse that “he could not follow the money as his mandate did not extend to oversight of non-state entities such as Invume and the ANC”, was unequivocallydismissed.
For South Africa, the appointment of an unsuitable candidate would be an unmitigated disaster that would obstruct the urgent need to address decisively maladministration and corruption.
Informed South Africans, committed to constitutional democracy, anxiously await the decision of both the parliamentary committee and the National Assembly to determine whether it will be a singular victory for democracy or political expediency.
* The views expressed here are not necessarily those of Independent Media.[Source: Cape Times]