The Public Protector Needs Protection

Nun marches with mourners before the arrival of body of former South African President Nelson Mandela in Mthatha.

South Africa’s Parliamentary portfolio committee on justice and correctional service heard that the Office of the Public Protector, the constitutionally created watchdog on public affairs oversight, was insolvent. According to reports, the office’s assets were valued at just under R1 million (roughly U.S. $100,000) with debts accrued around R40 million (about U.S. $4 million). The public protector advocate, Thuli Madonsela, told Parliament that her office simply did not have sufficient funds to carry out its task, which involves the investigation of numerous cases of alleged bad governance and corruption.

Given that South Africa’s corruption rating has moved, according to Transparency International, from 25th least corrupt country in 1995 to around 72nd in less than 20 years, the importance of the Public Protector’s role seems obvious; it would also seem true to suggest that it should have a lot of work to do, which would require a bigger budget. The Office of Public Protector is one of a number of so-called Chapter 9 institutions (after Chapter 9 of the last Constitution) set up to promote good governance, fight corruption and promote human rights. These include the Independent Electoral Commission, the Human Rights Commission, the Commission on Gender Equality and the Office of the Public Protector. Funded by the state, they are tasked with oversight of government itself and defense of the Bill of Rights.

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Under the leadership of Thuli Madonsela, a lawyer and former political activist, the Public Protector Office has taken about 40,000 cases. The most recent high profile investigation was the use of R246 million (about U.S. $24.6 million) of public funds to upgrade the private home of South Africa’s President Jacob Zuma. For raising questions about using funds for renovations that had nothing to do with presidential security, Ms. Mandonsela was attacked by Zuma supporters and members the ruling African National Congress—some even calling her a C.I.A. spy.

The response of A.N.C. members of Parliament on Oct. 22 seems to follow a pattern. The committee chairperson, Mathole Motshekga, called the Public Protector’s Office “overbloated” and alleged that Madonsela had failed to manage its finances. Other A.N.C. members used the opportunity to call Madonsela’s leadership “undemocratic,” a regular refrain whenever Madonsela has questioned waste or misuse of public funds. Given the recent revelations of what has been called “Nkandla-gate” (after the rural village in Kwazulu Natal Province, the site of Zuma’s home), these allegations seem somewhat ironic to say the least.

Madonsela has been appointed to her post for a fixed seven-year term, with widespread powers of investigation and reporting, powers she has used zealously and without fear or favor. Short of parliamentary impeachment, which would have to be legally grounded, she cannot be removed from office. Nor, it seems, will personal attacks on her character sway her.

The Machiavelli in me suggests that this new skirmish between the public protector and the A.N.C. in parliament indicates a new strategy to remove her. Firing seems unlikely. To abolish her office would require a change to the Constitution, which would require 75 percent support in Parliament. This is unlikely. What better move could there be than to starve the office of funds—in effect bankrupt it, making it unable to function?

Note the twisted elegance of this move. On paper, the Office of the Public Protector still exists. But it would be a legal fiction, a bit like the “rotten boroughs” in the 18th- and 19th-century British parliamentary system. There is no change to the Constitution, so no 75 percent majority is needed. The state maintains its commitment on paper to Chapter 9, but without making it effective. Thuli Madonsela remains public protector in name only until she leaves office in 2016, to be replaced no doubt by a good party loyalist who will not rock the boat.

A variant strategy that we may yet see is a government bail-out of the office in return for Madonsela’s resignation. Though this will not paralyze its work, it will simply speed up the process of getting a loyalist into the post. Either way, what we will see is the clever subversion of the Constitution and its intent to promote honest, effective governance in South Africa.

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