City Press debate – Power and the Public Protector: Thuli Madonsela

2013-05-14 10:00

Political pressure cripples the independence of chapter 9 institutions, writes Thuli Madonsela.

Focusing on investigation matters before me has this past week been a little difficult as my team and I got sidetracked by equally important issues coming out of our recent interaction with the parliamentary portfolio committee on justice and constitutional development.

The issues raised by some members of the committee were important for one reason only: they go to the heart of one of the principles that should inform the manner in which a Public Protector or an ombudsman in any democracy with such an institution should be allowed to execute their duties. The principle in question is the principle of independence.

The engagement with the portfolio committee on justice and constitutional development was not about whether or not the Public Protector is accountable to Parliament, as that is a given.

The issue on which there were differences of opinion between the Public Protector and a member of the committee was the correct interpretation of section 181(5) of the Constitution read with section 181(2) thereof.

Those that witnessed the interaction between committee members and the Public Protector team on that day will concur that any insinuation that the current Public Protector refuses to account to Parliament could not be further from the truth.

The presentation given to Parliament contains provisions of the adjustments made to the strategic plan in regard to the comments that have previously been made by the committee.

Examples include the proposed Public Protector footprint and accessibility strategy.

In response to comments from committee members, some offices have been relocated.

Shortly after taking over as Public Protector, I embarked on a stakeholder consultative dialogue, which has since become an annual feature in our activities.

Unlike its successors, the maiden consultative process focused on our interpretation of our constitutional mandate, our strategic plan and vision 2020.

Never before the unfortunate recent engagement has Parliament or any other stakeholder said accountability includes asking the Public Protector why she or he conducted a particular investigation and telling him or her that such an investigation should not have been conducted.

In fact, I am not aware of any national ombudsman who has ever been put in that position. In my view, this goes to the crux of decisional independence.

Section 181(2) of the Constitution provides that the institutions created under chapter 9 of the Constitution are “independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice”.

This is similar to section 165(2) of the Constitution, which says the courts are independent and subject only to the Constitution and the law, which they must apply impartially, without fear, favour or prejudice.

It has been correctly pointed out that the section 165 provisions on the judiciary do not include a provision similar to section 181(5), which states that “these intuitions 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”.

Surely a reasonable interpretation of section 181(5) should not be one that results in a contradiction between section 181(2) and section 181(5).

A correct interpretation of section 181(5) should be one that is consistent with the notion of independence, impartiality and exercising powers and performing functions without fear, favour or prejudice.

In my view, this is similar to insulating judicial functions from scrutiny by institutions other than the judiciary.

The views of Justice Pius Langa in the matter of Independent Electoral Commission (IEC) v/s Langeberg Municipality support the approach I took in my engagement with Parliament regarding the paramountcy of the independence of the institutions established under chapter 9 to support and strengthen constitutional democracy.

In his judgment, Langa refers to the certification judgment where the Constitutional Court made the following comments:

“Presumably Parliament will in its wisdom ensure that the legislation establishing the electoral commission guarantees its manifest independence and impartiality.”

The IEC is established under exactly the same provisions as the Public Protector is established.

The purpose of guaranteeing decisional independence has been articulated in various national and international judgments.

The idea is to ensure that an institution whose function is to ensure justice is not influenced in its decisions by any considerations other than constitutional and legal ones.

The member of Parliament concerned argued that there should be no concern because the questions regarding why the matter was investigated and the criticism of the decision to investigate come after the investigation has been concluded.

In my view, this doesn’t eliminate the concern that the Public Protector and her staff members are still placed under political pressure involving a concern that certain powerful members of Parliament would second-guess the decision to investigate and therefore take issue with a Public Protector.

A Public Protector who wants to avoid a discord with Parliament may then choose the road of accepting jurisdiction in cases where powerful members of Parliament may have an interest.

The view I have expressed in the above and during my engagement with Parliament is not inconsistent, I believe, with the spirit of remarks made by Deputy Minister of Justice Andries Nel regarding the independence of the Public Protector, on several occasions. They include the following:

“The importance of the Public Protector was also appreciated by the judicial arm of our democratic state when, in declining to certify the draft text of the interim Constitution, the Constitutional Court, in its first certification judgment, remarked that:

‘The independence and impartiality of the Public Protector will be vital to ensuring effective, accountable and responsible government. The office inherently entails investigation of sensitive and potentially embarrassing affairs of government. It is our view that the provisions governing removal of the Public Protector from office do not meet the standard demanded by constitutional principle XXIX.’”

Should there never be an agreement between the Public Protector and Parliament in this matter, the best platform to resolve this matter is the Constitutional Court.

As I said in my address to the Fort Hare convocation on Friday, the courts, generally, and ultimately the Constitutional Court, have the final say on the interpretation of the Constitution.

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