Are Madonsela’s powers in jeopardy?

Do you face an ethical dilemma? Do you suspect corruption? If you need help to resolve such issues, write to the Corruption Watch experts at letters@businesstimes.co.za. Mark your letter ‘Dear Corruption Watch’

Last week, members of parliament’s justice portfolio committee made some worrying statements to the public protector. According to reports, ANC members accused Thuli Madonsela of “taking certain postures” and expressing “certain views” that were about the government and “political in nature”. The ANC also suggested that there should be a review of the public protector’s powers. Is the ANC right to complain about the public protector taking political positions? And can parliament decrease the powers she has? How would that affect her ability to fight corruption? — Concerned and confused The current public protector, unlike some of her predecessors, has demonstrated that she will not be swayed by political pressure and will uphold her oath to act without fear, favour or prejudice. The allegations that she is acting “politically” and the threat to “warn” her to desist from those actions are unlikely to have any effect on the performance of her duties.

Nonetheless, the comments are troubling. First, Madonsela was before the committee in part to ask for additional funds to enable her office to perform its constitutional function. She asked for R300-million and was granted only R199-million. If ANC MPs believe that the public protector is abusing her office by acting politically, they may be inclined to withhold funds even if her office objectively requires those funds to investigate all the complaints it receives.

That would hurt ordinary South Africans far more than it would benefit the ANC. Only a tiny fraction of the work done by the public protector involves high-profile, politically charged investigations such as the one into Nkandla.

The office deals with about 35 000 complaints a year. Only a handful of those receive media coverage. Most of its work involves helping ordinary South Africans to receive the service and assistance they deserve from the government.

Second, it is worth asking what counts as “political posturing”. When the public protector concludes that the president and relevant ministers failed to act in terms of their constitutional obligations with regard to the construction at Nkandla, is that political? In one sense it is, because the finding will certainly have political consequences. But if the investigation was fair and the finding is supported by facts, it is not a political finding but an independent and objective one. It is also not “political” — in the narrow party-political sense — for Madonsela to stress the importance of her office in public forums. The public protector is a vital constitutional office and, as its incumbent, she should be promoting the role it can play in addressing corruption and maladministration.

The suggestion that parliament should amend the public protector’s powers must be carefully considered.

One of the issues raised in the committee was that there is an overlap between the powers of the various Chapter 9 institutions. Although there may be some overlap in powers, the public protector is the only body tasked with investigating allegations of corruption and maladministration.

Section 182(1) (a) of the constitution gives the public protector the power “to investigate any conduct in state affairs or public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice”.

This is a broad grant of jurisdiction. Any attempt to insulate part of the government from the public protector’s scrutiny would require an amendment of this section, which could be passed only with the support of 66% of MPs.