It is unfortunate that after twenty years of constitutional democracy our country is still inundated with uncertainties and misgivings over the extent of the Public Protector’s mandate. I say it is “unfortunate” not because disagreements and confrontations, (no matter how petty and frivolous or somewhat done with a particular ulterior motive they may seem) are part and parcel of a strong democracy, but because these confrontations can have a negative effect on all chapter 9 institutions.
When Thuli Madonsela (the current Public Protector) appeared before the Portfolio Committee on Justice and Constitutional Development (Justice Portfolio Committee) there was some confusion among the Members of Parliament (MPs) over her constitutional mandate – those MPs inadvertently or otherwise implied that they can autonomously decide who can be investigated, when and how. They seem to have a particular problem with Thuli Madonsela’s unbending attitude. This is the message that the general public recently received.
It is therefore important to shed light on the constitutional and legislative mandate of chapter 9 institutions, specifically the Office of Public Protector vis-à-vis Parliament.
Chapter 9 Institutions
Section 181 of the Constitution establishes state institutions supporting constitutional democracy, colloquially known as “chapter 9 institutions” (namely, The Public Protector; The South African Human Rights Commission; Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; The Commission for Gender Equality, The Auditor General and The Electoral Commission).
These institutions have a huge and important constitutional role to play in strengthening our nascent constitutional democracy. They are required to be independent, and be subject only to the Constitution and the law. Relevant in this regard is the old chestnut that the Constitution is supreme law of the Republic, law or conduct inconsistent with it is invalid (section 2 of the Constitution). The Constitution furthermore requires them to exercise their powers and perform their functions without fear, favour or prejudice.
To ensure that these institutions work effectively and efficiently the drafters of the Constitution saw it prudent to oblige all organs of state to support the work of these institutions. Section 181(2) clearly reads: “…. organs of state, …. must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” The said support and protection of independence, impartiality, dignity and effectiveness of chapter 9 institutions can be achieved through legislative or other measures. “Other measures” may well include financial, human resource and administrative support. It puts positive and negative obligations upon the state.
If we accept that parliament is an organ of state then MPs in their capacities as such are constitutionally obliged to refrain from making statements which can only have harmful effects on these chapter 9 institutions. This in essence means that any person who unlawfully and dishonestly attacks the institution of Public Protector undermines the Constitution. This is not to suppress candid and positive debate but the underlying rationale is to protect the dignity of these bodies.
Many would agree that bitter and self-serving arguments in parliament cloaked as “honest debates” are not strengthening our constitutional democracy but only serve to weaken it. No person or organ of state may interfere with the functioning of the Public Protector (see, section 181(4)). “Interference” denotes a variety of challenges that maybe planted to make it hard for the Public Protector to do the job she is paid to do.
Continuous questioning; intimidations; camouflaged insults, and lack of adequate funding (though are not direct interference) are some the hurdles that make it difficult for these bodies to function effectively and for general interests of the public. This means, for example, that members of National Assembly are acting contrary to the law when they hurl insults to the Public Protector, or when they deliberately fail to fund the institution of the Public Protector. In the same vein, they would be in breach of the Constitution if they were to effect changes to the findings of Thuli Madonsela’s much-awaited ‘Nkandla Report’. That undoubtedly amounts to abuse of power.
Accountable to Parliament?
The Public Protector is however accountable to the National Assembly, and as a result must report on its activities and performance of its functions to the Assembly at least once a year (see, section 181(5)). This of course non-negotiable in a democratic state such as ours where values of accountable and transparency are paramount. I would hardly think that Madonsela holds an opposing view. She is required to do so by law. But the scope of accountability is quite limited. She is required “report” or to “account”. Her role ends there!
The Public Protector additionally 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, and she must report on that conduct; and take appropriate remedial action (see, section 182(1)(a),(b) and (c)).
Now let’s consider some of the pertinent provisions of the Public Protector Act 23 of 1994. Section 3(13) of the Public Protector Act 23 of 1994 states: “A Member of the office of the Public Protector shall (a) serve impartially and independently and perform his or her functions in good faith and without fear, favour, bias or prejudice”.
Section 6(4) of provides in relevant part “the Public Protector shall be, be competent- (a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged- (i) maladministration in connection with the affairs of government at any level; abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function.
Possibly the most relevant provision is section 8 which regulates publication of findings. Public Protector is required to submit his/her report to the National Assembly on the findings of a particular investigation if – (i) he or she deems it necessary; (ii) he or she deems it in the public interest; (iii) it requires the urgent attention of, or an intervention by, the National Assembly; (iv) he or she is requested to do so by the Speaker of the National Assembly; or (v) he or she is requested to do so by the Chairperson of the National Council of Provinces.
As I see it there is nothing from the Constitution or from any other legislation which suggests that chapter 9 institutions are merely extensions or some bodies of Parliament. The MPs must understand that the chapter 9 institutions derive their full powers from the Constitution itself not from any other law. The enabling legislation (i.e the Public Protector Act), though important, can never take precedence over the Constitution.
Section 9 (1) (a) reads: No person shall insult the Public Protector or the Deputy Public Protector;but subsection (2) states “[n]othing contained in this Act shall prohibit the discussion in Parliament of a matter being investigated or which has been investigated in terms of this Act by the Public Protector.”
I have considered the MPs contention but I am still unable to find anything in law or in policy which subjects the Office of the Public Protector under Parliament’s wings. It then follows that Dene Smuts (DA MP), Mathole Motshekga (ANC MP) and other members who entered the fray were clearly wrong. Smuts pointed out rather rudely and thoughtlessly “[y]ou in short are accountable to us, accountability is a hierarchical relationship. You must justify the performance of your functions to us,”. When Madonsela said her office had prepared a booklet which MPs can read to improve their understanding of laws regulating her office, Smuts replied angry: “It’s alright ma’am, I have been involved in the writing of the constitution. I really don’t need little booklets.”
If this conduct is not an insult on the Office of the Public Protector as envisaged in the Public Protector Act then it may be critical to define the verb “insult” but I sense that Smuts’ remarks are tantamount to an insult or disrespect in brazen violation of section 9(1) highlighted above. It does not help much for her to say that she was involved in the drafting processes of Constitution if she reveals a lack of appreciation of the principles and ideals which underpin our Constitution.
Balance on Public Power
It has been said the Public Protector is not the forth branch of government. As submitted above it indeed reports on its activities to parliament. There is also a view that the Public Protector (including other chapter 9 institutions) is a parliamentary instrument created to exercise control over the executive. But what is the significance of this, if at all? Being a “parliamentary instrument” does not, in my view, make these institutions dependent on parliament nor should it translate to them being parliament’s lapdogs. On the contrary, I would submit that these bodies are “constitutional instruments”.
Relating to the Electoral Commission, the Constitutional Court per Langa CJ (as he was then) once said in New National Party v Government of the RSA 1999 5 BCLR 489 (CC) at para 74:
“The Commission is one of the state institutions provided for in chapter 9 of the Constitution and whose function under section 181(1) is to strengthen constitutional democracy in the Republic. Under section 181(2) its independence is entrenched and as an institution, is made subject only to A the Constitution and the law. For its part, it is required to be impartial and to exercise [its] powers and perform [its] functions without fear, favour or prejudice. Section 181(3) prescribes positive obligations on other organs of state who must, A . . . through legislative and other measures, . . . assist and protect [it] to ensure [its] independence, impartiality, dignity and effectiveness . . .
Section 181(4) specifically prohibits any person or organ of the state from interfering with its functioning. Section 181(5) provides that:
These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.”
At para 78 he opined:
“The establishment of the Commission and the other institutions under Chapter 9 of the Constitution are a new development on the South African scene. They are a product of the new constitutionalism and their advent inevitably has important implications for other organs of state who must understand and recognise their respective roles in the new constitutional arrangement. The Constitution places a constitutional obligation on those organs of state to assist and protect the Commission in order to ensure its independence, impartiality, dignity and effectiveness. If this means that old legislative and policy arrangements, public administration practices and budgetary conventions must be adjusted to be brought in line with the new constitutional prescripts, so be it. It is therefore against this background that the conduct complained of has to be examined.”
Quite clearly the Constitutional Court has emphasized the independence of these institutions and has concluded that they do not form part of the executive or legislature, nor do they fall within the national or any other sphere of government. Parliament has pathetically failed to appreciate the true import of the requirements of the Constitution and the Public Protector Act which requires these institutions to perform their functions independently.
What is the true meaning and the extent of the oversight role of Parliament in a constitutional state founded on democratic ideals?
Legislative oversight refers to legislature’s consideration and evaluation of the activities of the executive branch of government or an organ of state. Even though it sometimes fulfills executive functions, it is must be borne in mind that the Public Protector is not an executive branch of government but an (independent constitutional) organ of state [Independent Electoral Commission v Langeberg Municipality (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) para 27].
As I have said above, the Constitution indeed requires the Public Protector to be accountable to the National Assembly. One would think that the National Assembly members will merely discuss amongst themselves Public Protector’s report /findings and act upon the recommendations made therein if they wish to. Moreover, they are free to criticize it on substantive grounds as they usually criticize some judicial decisions. That is precisely what a vibrant constitutional democracy entails. But again they shall not “review” or modify the findings of the Public Protector. That would fly in the face of the rule of law.
The Office of the Public Protector being a supervisory body without a doubt plays a fundamental role in guarding against the abuse of power. It must be supported and protected by all those who believe in the supremacy of the Constitution not of Parliament. The MPs who boldly attacked the Public Protector were under a misapprehension of law and some of them may have allowed their insecurities to overcome them, I believe.
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