Which Constitutional crisis?
In an article titled “Nkandla: Anatomy of a Constitutional Crisis” (City Press, October 5 2014), Richard Calland and Lawson Naidoo say that South Africa “has been plunged into what is arguably a constitutional crisis”.
The authors quote Wikipedia’s definition of a constitutional crisis as “a situation that the legal system’s constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government. Often, generally speaking, a constitutional crisis is a situation in which separate factions within a government disagree about the extent to which each of these factions holds sovereignty. Most commonly, constitutional crises involve some degree of conflict between different branches of government…”
In Parliament, there are no factions holding sovereign power. Each of the political parties represents a section of the South African population and not a faction. The ruling party, the ANC, represents the majority of the people.
The ANC is always open to persuasion and it has always urged other parties to engage rather than withdraw from the parliamentary processes.
Ad hoc committee
The National Assembly established an ad hoc committee to consider reports on the Nkandla security upgrades. All political parties represented in Parliament agreed to consider the recommendations emanating from these reports, and to make recommendations to Parliament.
There are only two matters emanating from the Nkandla report that are before Parliament.
First is whether or not the findings and remedial actions of Parliament are binding on the executive and on Parliament. Secondly, whether or not the President’s response to the Public Protector’s report to Parliament is adequate or inadequate.
Answers to these questions are of a legal nature and do not require further evidence by anyone directly referred to in the reports before the ad hoc committee.
Powers of the Public Protector
In a nutshell, Calland and Naidoo maintain the Public Protector has the power to order that certain action be taken, and that Parliament must simply ensure the findings made are implemented.
This standpoint does not acknowledge the fundamental role of the doctrine of separation of powers. It raises the question of whether or not the Public Protector’s decisions are legally binding or enforceable.
I am of the view that the Public Protector is not a court of law and her decisions cannot be binding on the executive and Parliament without violating the doctrine of separation of powers.
In the case of the Public Protector v Mail & Guardian, the Supreme Court of Appeal (SCA) made it clear that the Public Protector performs investigative functions: “His or her mandate is an investigatory one requiring proaction.” Her/his functions are not adjudicative or determinative. This means that, unlike an ombudsman, the Public Protector can be proactive by initiating investigations.
In line with this, the SCA found in the Mail & Guardian case that the Public Protector does not adjudicate or determine disputes between parties (paragraph 9) by applying the law to the facts. This is a function reserved for courts and tribunals, as contemplated in the Constitution.
To enable the Public Protector to fulfil his/her investigative mandate, the Constitution gave the Public Protector the power: To report on the conduct investigated. To take appropriate remedial action. Unlike with courts, nowhere does the Constitution provide that a finding or action – decision – of the Public Protector “binds all persons to whom and organs of state to which it applies”.
Had the Constitution intended to confer similar powers on the Public Protector (powers to make final and binding decisions) as it has on the courts, it would have contained a similar provision. This position is similar to that of other comparable chapter 9 institutions. With regard to tribunals envisaged in the Constitution, their powers to make binding decisions are conferred by their enabling, empowering national legislation.
In case of the Public Protector, the enabling national legislation – the Public Protector Act – did not make the remedies recommended by the Public Protector binding.
It must be borne in mind that the Constitution confers powers on the office of the Public Protector as defined by national legislation.
It would be absurd for the Constitution and the Public Protector Act to make decisions by the office of the Public Protector – which is not a court of law or a similar tribunal – binding on the executive and Parliament. This would enable the office of the Public Protector to encroach on the powers of the executive and Parliament in violation of the doctrine of separation of powers.