Importance of protecting the Public Protector
It is a constitutional obligation
LOUIS Brandeis, a former associate justice of the US Supreme Court, once famously remarked that government is a great teacher in a constitutional democracy, and “if government becomes a lawbreaker, it breeds contempt for the law”.
In a constitutional democracy, we the people enter into a solemn pact with the rulers.
After free and fair elections we give our rulers adequate power to govern in our name, but being cognisant of the lessons of history, we specifically transfer conditional and not absolute power. They are able to govern, provided they do so in accordance with procedural and substantive safeguards contained in the Constitution.
It is these procedural and substantive safeguards that protect us from the abuse of power. This theoretical underpinning is given concrete manifestation by our Constitution requiring that the president, the deputy president and the ministers either take an oath or affirm that they “will obey, observe, and maintain the Constitution”.
The test of this commitment comes not in times of tranquillity but in times when respecting the Constitution is burdensome, costly, embarrassing or even unpalatable to those who exercise public power. We are now in such times.
After an exhausting process, the Public Protector, Advocate Thuli Madonsela, found that President Jacob Zuma and his family had improperly benefited from the staggeringly costly security upgrades at his private residence at Nkandla. She further recommended that the president repay some part of the costs.
There is general consensus that public funds were wantonly abused in the Nkandla upgrades. If the president is to be a great teacher, and if he wishes to abide by his oath of office, he must either carry out the recommendations of the report or he must convince a court that the report is flawed and unlawful. The case involving the former chairwoman of the IEC, Advocate Pansy Tlakula, is an interesting comparator.
The public protector made adverse findings about Advocate Tlakula’s involvement in a tender for the leasing of premises for the IEC. A number of political parties, relying on the reports by the public protector and the national treasury, approached the Electoral Court arguing that Advocate Tlakula should be removed from office.
The Electoral Court found that her misconduct warranted her removal from office.
Her application for the matter to be heard by the Constitutional Court was refused because there was no reasonable prospect of success. Advocate Tlakula subsequently resigned from the IEC.
The genesis of her having to step down was the detailed report of the public protector, which raised serious questions about her propriety.
Rationality and cogency of argument and a correct application of the law and facts prevails in court, and political considerations are not determinative factors. A perusal of the structure of our Constitution supports the notion that those implicated in reports of the public protector have a constitutional responsibility to proactively abide by the findings or have them set aside.
Consequences
Our system of government, which separates power between the different organs of state, would not permit that.
However that does not mean that the findings of the public protector do not have important legal and factual consequences. The public protector is a constitutionally entrenched chapter 9 institution, which has the broad objective of supporting democracy and, more specifically, of investigation maladministration and impropriety in public affairs.
In one of the early landmark judgments handed down in 1996, the Constitutional Court noted that the independence and impartiality of the public protector is vital to ensuring effective, accountable and responsible government.
It went on to to state that one of the functions of the office was to ensure that “government officials carry out their tasks effectively, fairly and without corruption and prejudice”.
In order to safeguard the office of the public protector, the Constitutional Court required the drafters of the Constitution to ensure that the public protector would not be able to be removed from office by a simple majority of the National Assembly.
As a consequence of this judgment, the Constitution provides that the public protector may only be removed from office if such a resolution is supported by a two thirds majority of the National Assembly.
It provides the public protector with protection and with security of tenure as it anticipated some tension between organs of state and this office, given the nature of its mandate. The court clearly understood and anticipated the importance of protecting the public protector, irrespective of who was in power. At the time of this judgment, President Mandela was president.
Further there is a constitutional duty on all organs of state, including the office of the president, to protect the office of the public protector to ensure its independence, impartiality, dignity and effectiveness.
Any direct or indirect undermining of the public protector is a direct violation of this constitutional obligation.
Not implementing the recommendations and not seeking to set aside the findings would amount to an indirect undermining of the public protector.
It would suggest that her findings need not be implemented and could effectively be ignored.
Neither the executive, Parliament, a committee of ministers nor the Special Investigation Unit are constitutionally competent to pronounce on the correctness of the findings of the public protector. This power vests solely in the courts.
If the President does not abide by the recommendations and does not seek to set aside the findings, then the factual finding of the public protector that he improperly benefited from public funds would remain undisturbed.
The Constitution, by demanding that the office of the public protector be accessible to all persons and communities, recognises that people affected by maladministration should have a defender and protector.
All of us, therefore, have a direct vested interest in ensuring that we have an independent, capacitated, effective and competent public protector.