Voices

Floyd Shivambu: Let’s protect the Public Protector

2019-06-19 01:21

One of the important expressions in the Constitutional Court judgment delivered by Chief Justice Mogoeng Mogoeng in the EFF v Speaker of the National Assembly case was: “The Public Protector is one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs and for the betterment of good governance.

The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen.

For this reason, the fathers and mothers of our Constitution conceived a way to give even to the poor and marginalised a voice and teeth that would bite corruption and abuse excruciatingly.”

What this expression says is that, without the Public Protector, citizens have no other viable vehicle to fight against corruption and maladministration other than the courts, besides elections.

However, the Public Protector is not a political office, it is a quasi-judicial office with binding remedial actions that can be set aside only by a judgment of a court.

The Constitution is such that it should not be easy for politicians to remove judicial and quasi-judicial appointees. Otherwise many judges would have been removed through political parties’ conference resolutions, in the same way the Scorpions were dissolved through conference declarations in the past.

According to Section 194(2)(a), at least two-thirds of the members of the National Assembly are required to remove a Public Protector. This is meant to make it difficult to remove the incumbent, more so with a simple majority.

Without this, political parties that win elections could easily change Public Protectors who had adverse findings against them.

If the ruling party had more than two-thirds of members in the National Assembly, former Public Protector advocate Thuli Madonsela would have been excommunicated long before the release of the report on state capture.

Her investigations and findings into Nkandla would have led to her removal from office. That would have been done at the time as now President Cyril Ramaphosa, in defence of Jacob Zuma, repeatedly voted to disregard the remedial actions decided by the Public Protector.

Any Public Protector will inevitably be in conflict with politicians. The role of that office is to investigate maladministration and corruption by public officials and enforce the executive ethics code.

It is therefore foolhardy that every time the Public Protector makes a finding against a politician, there are calls for her removal.

Such calls are undemocratic and inconsistent with the Constitution because there is always recourse for those who have findings made against them.

Chief Justice Mogoeng Mogoeng summarised the recourse option perfectly in the seminal judgment when he said: “No decision grounded on the Constitution or law may be disregarded without recourse to a court of law.

"Whether the Public Protector’s decisions amount to administrative action or not, the disregard for remedial action by those adversely affected by it, amounts to taking the law into their own hands and is illegal.”

The Constitutional Court was explicit in the roles and responsibilities of the Public Protector and the available avenues for recourse. But Stratcom and those whose interests they protect have discarded all logic and reason, along with our democratic principles and constitutionalism.

The call to remove the Public Protector is a deliberate and calculated campaign to undermine and discredit the office.

It’s not the first time the office of the Public Protector has been under siege. Madonsela was attacked and undermined by members of Cabinet, MPs and journalists to protect a president who was a constitutional delinquent.

As EFF MPs, we understood our oath of office and took it upon ourselves to defend the Office of the Public Protector.

A principled decision vindicated by the Constitutional Court which set a legal precedent with regards to remedial actions and recourse.

It is true that history repeats itself first as tragedy and the second time as a farce, as Karl Marx put it.

What is happening today is a farce. All misinformation campaigns against the Public Protector must be rejected.

The recommendations of the Public Protector are binding and must be implemented unless and until set aside by a court of law. Otherwise, we run a risk of undermining our gains for political expediency.

All citizens must join our campaign to protect the Office of the Public Protector.

Shivambu is deputy president of the EFF


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December 8 2019