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Depoliticising appointment process vital for restoring credibility

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Picture: Ian Landsberg/African News Agency (ANA)/Taken on March 6, 2023 – Advocate Dali Mpofu, right, for the beleaguered Public Protector questions former public protector Thuli Madonsela via an online meeting platform before the Parliamentary inquiry looking into the fitness of Busisiwe Mkhwebane, left, to occupy office. Thuli Madonsela elevated her role as public protector to national prominence, positioning it in the centre of political developments and her successor, Busisiwe Mkhwebane, continued in the same manner, even though the latter was regarded as sympathetic towards Zuma and his supporters and critical of President Cyril Ramaphosa, the writer says.

By Dirk Kotzé

The public protector’s office is currently the subject of two opposing processes. One is the Section 194 parliamentary impeachment process and the other is the parliamentary process to appoint a successor to Busisiwe Mkhwebane at the end of her seven-year term in October. The first one is engulfed in controversy. The second one has the potential to become controversial.

Since 1995, the four public protectors conceptualised their roles vastly differently. Selby Baqwa and Lawrence Mushwana were relatively low-key role-players while Thuli Madonsela elevated it to national prominence, especially in relation to former president Jacob Zuma and state capture. She positioned it in the centre of political developments and her successor, Mkhwebane, continued in the same manner. However, Mkhwebane was regarded as being sympathetic towards Zuma and his supporters and critical of President Cyril Ramaphosa.

Her controversy emanated from reports with political overtures, such as changing the public mandate of the South African Reserve Bank, criminalising Ramaphosa’s presidential campaign in 2017 and the theft of foreign currency at Ramaphosa’s Phala Phala farm. Several court judgments severely criticised her applications of law and conclusions. For the first time in almost 30 years, the public protector became the object of a parliamentary impeachment process.

The Office of the Public Protector is one of the Chapter 9 institutions in the Constitution with the auditor-general and a number of commissions. Their independence from the executive is constitutionally entrenched and they report only to Parliament. The incumbent public protector must be a South African citizen, must be fit and proper to hold this office and must comply with any other legislative requirements. These are that a candidate must have at least 10 years of experience as a judge, advocate or attorney, or be qualified to be an advocate or attorney, or have specialised knowledge and experience of the administration of justice or public administration or public finance. A person with extensive legal experience in public law would therefore be a preferred candidate.

About 38 applicants were identified by an ad hoc parliamentary committee as suitable candidates. They were reduced to a shortlist of eight candidates, including five advocates, a judge and a magistrate. The Constitution determines that Parliament’s National Assembly must establish an ad hoc multiparty committee to shortlist and interview the candidates. The preferred candidate has to be supported by a minimum of 60 percent of the National Assembly’s members (that is, 240 votes). Based on this parliamentary recommendation, the president must appoint the public protector.

The most prominent among the eight shortlisted candidates is advocate Kholeka Gcaleka. She is the deputy public protector and, currently, also the acting public protector since Ramaphosa suspended Mkhwebane. Objectively speaking she would be the favourite candidate, but the general sense of partisanship which has become associated with this office is affecting her as well.

The main focus of attention will most probably be on her recent Phala Phala report in which she dismissed the accusations against Ramaphosa made by the African Transformation Movement (ATM). They relate to the Executive Ethics Code of Conduct, which prohibits an executive member from conducting any other paid work or allowing a conflict of interest to develop between the person’s official responsibilities and private interests. These were also the basis of the ATM’s attempt to launch a parliamentary impeachment process against Ramaphosa.

The public protector’s report is seen as a pro-Ramaphosa outcome and as a major setback for his opponents. They include parties like the UDM, ATM, EFF and Cope. All of them are ANC allies in the Gauteng metropolitan councils, which implies that the coalition allegiance does not permeate through to matters like the public protector. The DA, Freedom Front Plus and ActionSA are also critical of the public protector’s report but not for the same reasons as the ANC allies. It leaves the ANC as the only major party which endorsed the public protector’s report. What does it mean for Gcaleka’s chances?

The Phala Phala report will determine her future. The fact that 60 percent of the parliamentarians must vote in favour of her, while the ANC has only 57 percent of the seats, means that they will need about 15 additional votes to support their choice of a public protector. It is therefore not a done deal. There is also not a clear-cut second option, which complicates the appointment process much more.

What are the lessons we can learn from this situation? The first is that the public protector’s appointment will always be a party-political one, to a large degree done by the politicians in Parliament. As we see at the moment with the impeachment of Mkhwebane, the public protector’s removal from office is a similar political process (it applies to all impeachment processes across the globe). It opens the process up to political influencing and decision-making. Politics will therefore always be a factor in the appointment of a public protector.

The second lesson is that the current appointment procedure is arguably not the best one. Alternative procedures are used for the Chapter 9 commissions, such as the IEC, as well as for the appointment of judges, which are less political. In the case of the IEC, candidates are interviewed by a committee consisting of other Chapter 9 incumbents, while candidate judges are interviewed by the Judicial Service Commission. The fact that the public protector is a quasi-judicial office with binding remedial action powers and dealing with matters like corruption, maladministration as well as ethical issues which often involve the executive, implies that a process similar to the one for the judges might be more appropriate (and less party political).

The third lesson is that the Constitution and legislation do not present a remedy for a situation in which none of the candidates can secure the required 60 percent parliamentary support. Most probably the process will then have to start all over again.

Prof Dirk Kotzé is from the Department of Political Sciences at Unisa (the University of South Africa)