New Public Protector Needs to meet the Office’s demands for Independence

19th August 2009 By: Idasa, an African Democracy Institute

The 7-year office term of Lawrence Mushwana, the country's Public Protector, comes to an end in October this year. Over the next few weeks an ad-hoc parliamentary committee representing all political parties will be interviewing potential candidates for this critical post. The Constitution regards this Office as one of the most important safeguards of our constitutional democracy - and this means that whoever is appointed will need to shed some of the baggage associated with Mushwana's tenure, in particular the narrow mandate he carved out for his Office.

Mushwana is perceived to have interpreted his mandate in an uncreative, legalistic manner, particularly in investigations concerning high-level public officials. This was evident in his handling of the ongoing Oilgate saga, which first came to light in 2005. The Mail and Guardian newspaper at the time alleged that PetroSA, a state-owned petrochemical company, had chanelled large sums of money to the ANC through a private company called Imvume shortly before the 2004 elections.

In a report that created a huge outcry, Mushwana stated that his mandate was restricted to investigating public entities and public money only, and that as the passage of money between Imvume and the ANC did not, at that point, involve "public money it could not be investigated".

Any reasonable interpretation of his mandate would certainly have allowed the Public Protector to follow the "money trail" and get to the crux of the allegations, involving as they did the collusion of public and private entities. This would have been in accordance with the spirit and the letter of both the Public Protector Act and the Constitution.

The dogged M&G successfully asked the high court to review Mushwana's findings two weeks ago. The court found that his investigation had been superficial and failed to answer many legitimate questions.

Even Kader Asmal's 2007 Review of Chapter Nine Institutions (state institutions that promote democracy or act as government watchdogs) indicated that the Public Protector's general approach tended excessively towards co-operation with government rather than rigorous inquiry. From Mushwana's submissions to the Review Commission it was clear that he chose to apply the principles of co-operative government and intergovernmental relations to his own Office. Asmal, however, found conclusive evidence in a Constitutional Court decision that, while Chapter Nine institutions are organs of state, they do not form part of government and are therefore not subject to the principles of co-operative government followed by Mushwana. Importantly, the Asmal Committee emphasized the need for these institutions to "manifestly be seen to be outside government".

The recent court decision is a very timely one: as the term for a new Public Protector commences, questions around the exact nature of its mandate and relationship to the executive need to be thoroughly explored, debated and understood.

The primary duty of the Public Protector is to ensure that ordinary citizens benefit from efficient and fair public administration. Governments are not infallible, and when they do act unfairly, litigation is formal and expensive, which usually precludes the ordinary citizen from taking action. The Office of the Public Protector was therefore established with the aim of investigating maladministration in all spheres of government and of recommending remedial action. An independent and impartial institution is envisaged, with extensive powers (including subpoena, and search and seizure) to investigate and review the propriety of "any conduct in state affairs".

We should be entitled to expect expert, independent-minded and committed people to be appointed to such positions - but the reality is that the involvement of political parties and the legislature gives space for narrow political considerations to influence the appointment process. It would be impossible to automatically disqualify candidates connected to political parties - office bearers need the trust and recognition of those in power in order for their recommendations to be effective - but it is nonetheless essential that they prove their non-partisanship once in office. In a sense, the Public Protector, like other Chapter Nine officers, has "judge-like status", and needs to eliminate political considerations during the course of their work. Asmal's recommendations relating to the appointment process may be useful here.

Currently, civil society bodies are invited to make nominations, but there is certainly a need for Parliament to more effectively publicize both process and nominees and to encourage debate amongst a wider cross-section of South Africans - perhaps on radio or via direct community consultation.

Asmal suggested that a list of short-listed candidates be published for public comment before the selection committee makes recommendations to the National Assembly. It is not too late for Parliament to follow this advice.

In a recent survey, 42% of respondents had not even heard of the Public Protector. Clearly, not enough has been done to publicise its work - and we should insist that our new office bearer makes visibility, accessibility and public accountability primary goals.

Written by: Shameela Seedat of Idasa, Cape Town

This article first appeared in the Cape Times, August 13, 2009.