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In its quest to protect former president Jacob Zuma on Nkandlagate, the governing party was viciously critical in lambasting Advocate Thuli Madonsela when she was Public Protector. What did that mean for our democracy and all Chapter 9 institutions, asks Benzi Ka-Soko
The Constitution of South Africa makes provision for all Chapter 9 institutions, whose main objectives, among other aims, are supporting constitutional democracy in the country.
These institutions are tabulated in the Constitution as follows:
. The Public Protector;
. The SA Human Rights Commission;
. The 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 Independent Electoral Commission of SA
Very importantly, the Constitution stipulates that these institutions are independent and only subject to the Constitution and the law, and that they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
This article pays particular attention to the office of the Public Protector, whose functions are:
(1) 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
(b) To report on the above-mentioned conduct
(c) To take appropriate remedial action
As a matter of historical reference, mention should be made that this office was relatively unknown during the tenure of both advocates Selby Baqwa and Lawrence Mushwana.
Why this unknownness and obliviousness in the case of the two former Public Protectors? And why did the office become the most known state organ under the stewardship of Madonsela?
The answer to these questions is simple, but brutal. Baqwa’s tenure was during the transition period from apartheid to democracy – an epoch that was pivotally dominated by the spirit of reconciliation which resembled and characterised the presidency of Nelson Mandela.
The new South Africa was still a fledgling grappling with the challenges of growing up and maturing.
The tenure of Mushwana was characterised by political manoeuvring and the ANC consolidating its power as a governing party.
Mushwana did everything in his power to protect his party to appease his political bosses, namely the ANC at Luthuli House and former president Thabo Mbeki at Mahlambandlovu.
It is for these reasons that there were no notable decisions taken against government during Mushwana and Baqwa’s tenures, especially during the former’s.
At worst, Mushwana was notorious for taking decisions that were defensive of the ruling party and government – conduct that earned him notoriety for being a lapdog.
It can therefore be safely stated that Mushwana failed dismally in discharging his responsibilities as Public Protector as stipulated in the Constitution – without fear for speaking truth to power.
He instead acted as the protector of the governing party and government, at the peril of citizens across all divides.
The appointment of Madonsela brought about fresh air and rigour to the office of the Public Protector.
She ruffled feathers in the governing party’s circles by finding against senior members of the party, including Zuma.
The Nkandla scandal ignited the governing party to come out guns blazing against Madonsela, who was called names and labelled as DA-oriented and a populist.
All this happened in the midst of a number of shenanigans taking place in Parliament, wherein the EFF brought everything to a standstill during the parliamentary debate on the Nkandla matter.
Ironically, the ANC vociferously criticised the EFF’s conduct, which the governing party claimed to be unparliamentary and an affront to the institution.
Subsequently, Defence Minister Nosiviwe Mapisa-Nqakula and former police minister Nkosinathi Nhleko vowed to not sit idle while Parliament was being attacked in the glare of the public and the world.
However, the two ministers said nothing while the office of the Public Protector was attacked in the glare of the public and the world.
Why the hypocrisy and double standards?
The current situation is not good for the country, especially for all Chapter 9 institutions charged with supporting and protecting democracy and constitutionalism.
We should guard against setting a wrong precedent by labelling as populist those institutions that are critical to government and the governing party because doing so would have far-reaching repercussions with catastrophic results.
Debating these issues openly should not be treated as political taboo.
Enter Advocate Busisiwe Mkhwebane. The Constitutional Court’s judgment on the Absa Lifeboat matter is damning and scathing, and will potentially bolster the process of declaring her unfit to hold office.
It should be fearlessly mentioned that the standards set by Madonsela are top-class and should be adhered to by any ombudsperson if our country is prepared to deal with institutional maladies such as corruption and all its manifestations.
Ka-Soko is an independent political analyst and writer
