WHO WILL FILL MADONSELA’S SHOES?

While a mul­ti­party com­mit­tee is to meet and de­cide on Madonsela’s suc­ces­sor, the in­clu­sion of MPs as el­i­gi­ble can­di­dates is be­ing chal­lenged

CityPress - - Front Page - KAVISHA PIL­LAY news@city­press.co.za

If staff at the Of­fice of the Pub­lic Pro­tec­tor had their way, a high court judge would be their new boss, ac­cord­ing to a sur­vey by civil so­ci­ety or­gan­i­sa­tion Cor­rup­tion Watch. This is the view of most of the staff work­ing with Pub­lic Pro­tec­tor Thuli Madonsela, whose seven-year, non­re­new­able term ends in Oc­to­ber. As a re­sult, Par­lia­ment has es­tab­lished an ad hoc com­mit­tee, chaired by ANC MP Makhosi Khoza, to ap­point her re­place­ment.

In her open­ing speech, Khoza un­der­took to meet with the sec­re­tariat shortly to out­line the rel­e­vant pro­cesses.

She also promised to select “the best per­son for the job” – and Eco­nomic Free­dom Fight­ers (EFF) leader Julius Malema will be there to en­sure it hap­pens.

He is serv­ing on the com­mit­tee, to­gether with the DA’s Glyn­nis Breyten­bach, Phumzile van Damme, James Selfe and Werner Horn.

Other mem­bers in­clude the ANC’s Bon­gani Bongo, Amos Masondo, Ni­co­laas Koorn­hof, Grace Tseke, Madipoane Mothapo and Pa­trick Mae­sela.

Pro­fes­sor Themba Msi­mang will rep­re­sent the Inkatha Free­dom Party; Steve Swart will stand for the African Chris­tian Demo­cratic Party; and Sibusiso Mncwabe will par­tic­i­pate on be­half of the Na­tional Free­dom Party.

With the of­fi­cial process to ap­point a new Pub­lic Pro­tec­tor for­mally un­der way in Par­lia­ment, Madonsela’s staff mem­bers were given the op­por­tu­nity to par­tic­i­pate in build­ing the per­sona of an ideal can­di­date through a sur­vey.

They were given op­tions for qual­i­fy­ing can­di­dates as stip­u­lated in the Con­sti­tu­tion, which states that the Pub­lic Pro­tec­tor must be a South African citizen who is fit and proper to hold of­fice. To be el­i­gi­ble for such a po­si­tion, the can­di­date is re­quired to have cer­tain cri­te­ria in terms of qual­i­fi­ca­tions and work ex­pe­ri­ence, such as: Be a judge of the high court; or Be an ad­vo­cate or an at­tor­ney with at least 10 years’ ex­pe­ri­ence af­ter hav­ing been ad­mit­ted; or

Be an ad­vo­cate or at­tor­ney who lec­tured law at a univer­sity for at least 10 years af­ter hav­ing qual­i­fied; or

Have spe­cialised knowl­edge or ex­pe­ri­ence, over at least 10 years, in the ad­min­is­tra­tion of jus­tice, pub­lic ad­min­is­tra­tion or pub­lic fi­nance.

The Con­sti­tu­tion also al­lows the com­mit­tee to con­sider ap­point­ing an MP with at least 10 years’ ex­pe­ri­ence. How­ever, only 8% of the cur­rent staff in Man­don­sela’s of­fice sup­ported the idea of a sit­ting MP as a can­di­date for the job.

David Lewis, ex­ec­u­tive di­rec­tor of Cor­rup­tion Watch, said a sim­i­lar sur­vey was also sent to MPs to gauge their opin­ions in build­ing an ideal can­di­date per­sona to in­form and guide a pub­lic nom­i­na­tions process and fa­cil­i­tate di­a­logue on ex­pec­ta­tions of the next Pub­lic Pro­tec­tor. A dis­ap­point­ing 21 of the 418 MPs an­swered the sur­vey. The ma­jor­ity of MPs which par­tic­i­pated pre­ferred the cri­te­ria for the next Pub­lic Pro­tec­tor to in­clude ex­pe­ri­enced can­di­dates with spe­cialised knowl­edge in the ad­min­is­tra­tion of jus­tice, pub­lic ad­min­is­tra­tion or pub­lic fi­nances. The least favoured can­di­date was a per­son with ex­pe­ri­ence as an MP.

While the na­tion will be pre­oc­cu­pied with the lo­cal gov­ern­ment elec­tions in Au­gust, Khoza’s com­mit­tee will be meet­ing dur­ing the cur­rent par­lia­men­tary re­cess to fi­nalise the process of ap­point­ing the new Pub­lic Pro­tec­tor.

As the ad hoc com­mit­tee plans meet­ings in the fol­low­ing weeks to dis­cuss pub­lic par­tic­i­pa­tion, Lewis said he was con­fi­dent that pub­lic and le­gal scru­tiny would prevent the ap­point­ment of an un­suit­able can­di­date. Cor­rup­tion Watch would, through its Bua Mzansi cam­paign, en­sure that the pub­lic po­ten­tially in­flu­enced the de­ci­sion “on who is ap­pointed as the next Pub­lic Pro­tec­tor”.

Bua Mzansi is de­scribed by the watchdog as “a na­tion­wide pub­lic aware­ness and par­tic­i­pa­tion cam­paign to high­light and mon­i­tor the ap­point­ment process and en­sure that it is con­ducted in a trans­par­ent man­ner and is in­flu­enced by pub­lic opin­ion”.

At an event hosted by the In­sti­tute for Se­cu­rity Stud­ies, law pro­fes­sor and con­sti­tu­tional ex­pert Pierre de Vos com­mented on the im­por­tance of pre­serv­ing the in­de­pen­dence of this chap­ter 9 in­sti­tu­tion and high­lighted the need for the up­com­ing process to take place in the pub­lic spot­light.

Ac­cord­ing to De Vos, the in­clu­sion of MP ex­pe­ri­ence as a qual­i­fy­ing cri­te­ria was only ap­plied to the Pub­lic Pro­tec­tor Act in 2003, af­ter Lawrence Mush­wana was ap­pointed to the post in 2002. At the time of his ap­point­ment, Mush­wana was serv­ing as deputy chair­per­son of the na­tional coun­cil of prov­inces, and his sub­se­quent term as Pub­lic Pro­tec­tor was char­ac­terised by soft find­ings against key mem­bers of the rul­ing party.

Fol­low­ing the Con­sti­tu­tional Court rul­ing in the re­cent EFF v Speaker of the Na­tional As­sem­bly and Oth­ers judg­ment (oth­er­wise known as the Nkandla rul­ing), De Vos said that if an MP was ap­pointed as the next Pub­lic Pro­tec­tor, the con­sti­tu­tion­al­ity of the cri­te­ria could be chal­lenged in court if there was rea­son­able ap­pre­hen­sion of bias.

In his rul­ing, Chief Jus­tice Mo­go­eng Mo­go­eng stated that the Pub­lic Pro­tec­tor’s of­fice was es­tab­lished to “strengthen con­sti­tu­tional democ­racy in the Re­pub­lic” – and to achieve this cru­cial ob­jec­tive, the in­cum­bent was re­quired to be “in­de­pen­dent and subject only to the Con­sti­tu­tion and the law”.

He fur­ther said that the Pub­lic Pro­tec­tor, like other chap­ter 9 in­sti­tu­tions, was re­quired to be “im­par­tial and to ex­er­cise the pow­ers and func­tions vested in it with­out fear, favour or prej­u­dice”.

De Vos noted that, given these clear guide­lines, in­clud­ing an ex­pe­ri­enced MP as part of the qual­i­fy­ing cri­te­ria for the po­si­tion of Pub­lic Pro­tec­tor was, in fact, un­con­sti­tu­tional. Pil­lay is the project man­ager of Cor­rup­tion

Watch’s Bua Mzansi cam­paign

Glyn­nis Breyten­bach

Julius Malema

Makhosi Bu­sisiwe Khoza

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