The legacy of the outgoing public protector

[notice]A monthly column by Vivienne Solomons who is a legal consultant who passionately believes that God wants His people to make a difference right where they are and to stand up for what is true and just. She is also passionate about encouraging young women to walk victoriously with God and she is engaged in a challenging faith journey as a parent of a child with special needs.[/notice]

In October this year, Advocate Thulisile Madonsela, the well known, and arguably the most respected, public protector of the Republic of South Africa will vacate her office and pass the baton to her successor. Love her or hate her, what cannot be denied is the fact that during her tenure, the role of this previously obscure chapter 9 institution has been brought front row centre in the South African consciousness.

This is due in no small part to the nature of the issues reaching her desk. But perhaps more so, the courage, and some would say, pit bull like tenacity with which she has pursued such investigations, even under threat to her personal safety.

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Parliament has already begun the process of filling her relatively big shoes. Advertisements were placed in the media and the names of nominees have this week been released for public scrutiny and comment. What remains is for the parliamentary committee to then present its report nominating a particular candidate to the National Assembly for formal appointment.

Giving people a voice
The importance of the Office of the Public Protector cannot be overstated. As one of the institutions established in terms of chapter 9 of the constitution to strengthen democracy, it exists to uphold the values enshrined in our constitution. In Madonsela’s own words, the office provides a “safety valve” by “giving people a voice and the state better ears”.

This was certainly the intention of the drafters of the constitution when they provided in chapter 9 that the public protector has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged to be improper or to result in any impropriety or prejudice and further, that they should be accessible to all persons and communities. That Madonsela has achieved this during her tenure cannot be denied.

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Most notable were her findings in regard to President Jacob Zuma’s financial liability for certain upgrades to his Nkandla homestead, which subsequently led to the Constitutional Court ruling on the manner in which government is to treat the findings of the public protector, as well as recommendations on corruption and maladministration.

Then there was the investigation into Operation Hlasela, following complaints from the public and opposition parties, alleging that Free State Premier Ace Magashule had used food parcels to promote the ruling party’s campaign in the 2011 local government elections, thereby prejudicing other parties. Significantly, Madonsela found that the allegation of the conflation of party and state could be substantiated, giving pause for thought in regard to the use of government platforms to further party political ends.

By all accounts, the future incumbent will inherit a portfolio of substantial, if not controversial, investigations to reflect upon going forward. Given the tension between the Office of the Public Protector and the ANC government in recent years, however, it remains to be seen whether the appointee will continue to uphold the independence of the office we have come to expect and even rely upon, or be one who is more inclined to ‘toe the party line’.

The latter posture would most certainly contravene the constitutional imperative that the public protector be independent and subject only to the constitution and the law, impartial and able to exercise their powers and perform their functions without fear, favour or prejudice. It would also prove disastrous to the war that must continue to be waged on corruption and the wasteful expenditure of public funds, not to mention the furtherance of our fledgling constitutional democracy.

Importantly, the outgoing public protector also leaves behind a considerable legacy for every ordinary South African, which is to defend and uphold our constitution; to stand for truth and justice in the public square; and to root out corruption and maladministration wherever it may be found.

This, of course, will cost us. It will require us to not shrink back but to persevere in faith wherever the road may take us. For in the words of the old adage attributed to Alexander Hamilton and others, if we don’t stand for something, we will fall for anything.