Independent oversight of the executive: United States and South Africa Compared

4 September 2019

INTRODUCTION

The issue in Morrison was a challenge to the independent counsel provisions of the Ethics in Government Act of 1978. These created an oversight body that existed independent of any single branch of government. Although the Supreme Court of the United States (SCOTUS) judgment held that there was no constitutional impediment to the provisions, there was a powerful lone dissent by former Justice Scalia which has proved famous and rather prescient. Scalia’s talent for wordplay and evocative imagery combined with his typically sharp analytical approach to the problem at hand make the opinion an entertaining one to read. But it is also a timeless exegesis of constitutional issues regarding the separation of powers, executive oversight, and accountability for government officials, issues that have been recently relevant in both the United States (US) and South Africa.

In the US, President Trump has demonstrated how inadequate much of the American political oversight structure is. His blatant disregard for the norms and laws constraining executive action has gone largely unchecked, exposing some of the limitations of the American system. In South Africa, meanwhile, the powerful oversight institution of the Public Protector has found itself repeatedly embattled, making decisions that have drawn fire from multiple political parties, the media, and even the courts. This brief compares the American and South African approach to independent oversight and discusses whether there are any lessons that either country might learn from the other.

UNDERSTANDING INDEPENDENT OVERSIGHT

Oversight mechanisms exist at every level of government. At the same time, government oversight takes place in many ways. In both the US and South Africa, the legislature has oversight power over the activities of the executive branch. The South African legislature’s oversight responsibilities and powers are explicitly granted by the Constitution, and include the powers to “provide for mechanisms” that maintain oversight and accountability and to summon any person to give evidence under oath or produce documents.[1] The US Congress’s oversight powers are not explicitly granted in the US Constitution but understood to be implicit by the Supreme Court.[2] This results in comparable powers being exercised by the US and the South African legislatures, including the powers to request individuals to come before the body to testify, and issue subpoenas for documents or other evidence.

Legislative oversight, however, must be understood as distinct from independent oversight, which is a very different way of ensuring government accountability. Legislators are responsible for oversight. But they are also political animals, beholden to voters and concerned with reelection and party ideology as much as, if not more than, good governance. Independent oversight, therefore, plays a critical role in maintaining accountability. Independent oversight refers here to government institutions with an oversight mandate that are deliberately insulated from the political process. South Africa’s Public Protector is a paradigmatic example. The Public Protector is not elected, but appointed by the President with the assistance of the National Assembly for a seven-year, nonrenewable term,[3] and cannot be removed from office unless a finding of incompetence, incapacity, or misconduct is made, and at least two thirds of the National Assembly support a resolution to that effect. These requirements ideally allow the office to engage in oversight independently and without partisan motivations. Independent oversight such as this is an indispensable part of effective democratic governance; without it, the state is forced to rely solely on partisan actors to investigate and rectify wrongdoing, harming traditional notions of the impartial application of the laws. Independent oversight institutions should mitigate these concerns, but they come with their own challenges and pitfalls.

INDEPENDENT OVERSIGHT IN AMERICA: SPECIAL PROSECUTORS

There is no perfect analogue to South Africa’s Public Protector in the American political system; no such institution is enshrined in the Constitution or created by statute. The closest parallel is likely the American position known variously as special prosecutor, special counsel, or independent counsel. The current iteration, special counsel, is an ad hoc position at the federal level that is appointed to investigate specific allegations of wrongdoing. While the position of special prosecutor has been a hot topic in the news lately due to special counsel Robert Mueller’s investigation of Donald Trump, the institution’s roots go back much further.

Although independent investigatory institutions stretch back to at least the late 1800s[4], the modern conception of the institution was born out of the Watergate scandal in the 1970s. Watergate, perhaps the most infamous example of executive misconduct in US history, refers to the burglary of the Democratic National Committee organized by the administration of then-President Nixon, and the subsequent attempts by Nixon and his confidants to cover up their role in the scandal. The episode lasted for two years and engulfed the nation in controversy. The breadth and scale of the wrongdoing and the lengths to which the administration was willing to go to avoid accountability resulted in Nixon’s eventual resignation from the presidency and left an indelible mark on American politics.

As the scandal grew, Congress required the Attorney General (who is directly accountable to the President) to appoint a special prosecutor to investigate. Eventually, President Nixon fired both the Attorney General and Deputy Attorney General in order to have the special prosecutor removed from his post. After Nixon’s resignation, the Office of Independent Counsel was created to prevent such a fiasco from happening again. The legislation required the Attorney General to personally investigate allegations of executive wrongdoing and determine if they warranted the appointment of an independent counsel. If he found that they did, a special division of appellate judges was convened to choose an independent counsel, who would have the full investigative and prosecutorial powers of the US Department of Justice at their disposal. The independent counsel could be removed from office only via impeachment and conviction by Congress or the demonstration of severe unfitness for office by the Attorney General. What would emerge would pre-figure something akin to South Africa’s Public Protector: an independent body that could investigate executive branch wrongdoing without undue influence from politicians or the political process, and that was primarily accountable not to the executive or the voters but to the law.

THE LIFE AND DEATH OF THE INDEPENDENT COUNSEL

Two invocations of the independent counsel statute are notable for the purposes of this brief. The first, in 1986, occurred during the presidency of Ronald Reagan and eventually led to Morrison. The second, spurred by investigations into President Bill Clinton in 1994, spelled the end for a truly independent executive oversight institution in America.

The factual context of Morrison is less important than what it represented: a direct legal challenge to the constitutionality of the independent counsel statute by a presidential administration under investigation. The administration argued that the statute usurped executive power from the president, treading upon his constitutional prerogatives and threatening the separation of powers by unleashing an unaccountable investigator onto the executive branch.

All of this brings us to Scalia’s scathing Morrison dissent. Power is what concerned the Justice then, and this view has gained traction among both conservatives and liberals as time passed.[5] Scalia was concerned about the independence and broad mandate of the independent counsel (including the power to criminally prosecute any wrongdoing), which he believed threatened the delicate separation of powers balance by allowing, essentially, an unelected, unaccountable “fourth branch” of government to go marauding through executive affairs on a whim. Such an outcome, he felt, was “disastrous” for the health of the Republic and its institutions.[6] Scalia articulates his vision of the disaster thus:

The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.[7]

He would be demonstrated to be right. The investigation into and impeachment of President Bill Clinton in the 90s turned into the death knell of a fully independent executive oversight institution in the United States. Independent Counsel Ken Starr did everything he could to bring Justice Scalia’s apocalyptic vision to life; he engaged in a wide ranging, deep probing investigation that extended far beyond his original mandate.[8] The common view now is that many of Starr’s actions were politically motivated, and that he was wielding the powers of the independent counsel to benefit Republicans more than realise justice. The Starr Report was full of gratuitous, graphic descriptions of Clinton’s marital infidelity, designed to embarrass and discredit the President as opposed to simply making a case that he had erred.[9] While Clinton survived the eventual impeachment attempt based on Starr’s report and avoided criminal prosecution, damage to the Office of the Independent Counsel was more severe. Commentators generally agreed that the independent counsel statute was problematic at best and might be unconstitutional. When the time came to renew the statute, Congress let it lapse and moved on from the independent oversight experiment.

The US does still have “special counsel” provisions in law, but the role is created by Department of Justice regulations, not by statute, and the special counsel is once again directly accountable to the Attorney General (who in turn is directly accountable to the President).[10] This means that the special counsel is not meaningfully independent from the executive branch during the course of their investigations. The Attorney General retains veto power over investigative decisions, for example,[11] and has sole authority to decide what portions of the special counsel’s final report to share with Congress and the public.[12] Special counsel Robert Mueller’s investigation into President Donald Trump showed the nation how inadequate these provisions are. When the multi-volume, several-hundred-page Mueller Report was delivered to Attorney General William Barr, Barr subsequently summarized the findings into a four-page letter to Congress that was, at best, disingenuous regarding the conclusions of the investigation.[13] Although the complete, though redacted, Mueller report was eventually released to the public after much consternation, the episode once again displayed the limitations of attempting to police the executive from within itself.

SOUTH AFRICA’S HISTORY WITH INDEPENDENT OVERSIGHT

As noted, South Africa has what would be considered a paradigmatic example of independent oversight in the Public Protector and has had good experiences with the institution. The most distinguished Public Protector to date was Thulisile Madonsela, who demonstrated what independent oversight might look like. Madonsela won international acclaim for her performance in the role, deftly navigating the potential pitfalls of investigating executive misconduct and using the powers of her office to significantly beneficial effect.[14] Her remarkable efficacy is also made apparent in the glowing description used by the Constitutional Court to describe the institution when ruling in her favor: “one of the most invaluable constitutional gifts to our nation” and “the embodiment of a biblical David” fighting the Goliath of state impropriety and corruption.[15] Such language reflected the high esteem in which Madonsela was held and the value of the Public Protector to South Africa’s nascent constitutional democracy.

That Constitutional Court decision, Economic Freedom Fighters v Speaker of the National Assembly and Others, was not only notable for the respect the Court showed to the Public Protector at the time. It also marked a remarkable broadening of the Public Protector’s powers by making her remedial reports binding. This was not a strictly necessary result for the Court to reach and represented an expansion of the Public Protector’s powers that demarcated something of a shift in the national balance of powers.[16] With the decision, the Public Protector became a quasi-judicial institution as much as an investigatory one; she was given the power (subject to judicial review) to dictate to other branches of government how to discharge their constitutional mandates.[17] At the time, this decision was understandable. President Jacob Zuma and the ANC were blatantly flouting the Constitution and the Public Protector’s authority, and granting her executive power rectified that situation and ensured the institution was a constitutionally relevant one.

More recent developments, however, have cast doubt on the wisdom of the Court’s approach. The current Public Protector, Busisiwe Mkhwebane, has found herself repeatedly embattled in her role. Courts, politicians, and observers have commented multiple times on the inadequacy of her reports.[18]She has been taken to court several times and has been accused of bias more than once. Her tenure so far is eerily reminiscent of Ken Starr’s – he also ran afoul not only of the administration he was investigating but also some opposition party members and neutral observers. Starr’s tenure as independent counsel, of course, tarnished the institution to the point that it was erased from American politics. While the same outcome is unlikely in South Africa (if nothing else, the office of Public Protector is enshrined in the Constitution), there are genuine concerns that a continuation of current trends could irreparably harm the reputation of the institution.

This corresponds to a bipartisan concern about the special counsel role in American politics: there is significant concern about the power that an unconstrained investigator wields, and the impact that might have on the function of other government institutions. Complaints largely center around the breadth of the special prosecutor’s mandate and the lack of traditional constraints that most investigatory bodies would have.[19] Starr’s investigation perfectly reflected those fears, and the current Public Protector’s tenure appears to demonstrate that they are shared in South Africa as well[20].

CONCLUSION

The United States could learn much from the South African Public Protector. At its best, the institution has been a force for good in South African politics, rooting out corruption at the highest levels of government and holding powerful officeholders to account. Insulated from politics, the office of the Public Protector could serve its core mandate: protecting the public from abuses of power and promoting accountability and the rule of law. In America, by contrast, the lack of an independent investigatory institution has allowed President Trump to run roughshod over constitutional norms and enrich himself at taxpayers' expense,[21] with little to no meaningful oversight action from either party in Congress. Having a stable, independent office with a mandate to investigate executive branch wrongdoing could prove invaluable in a time like this.

South Africa, on the other hand, should be troubled by the American experience. If American history teaches anything, it is that the independent overseer is unavoidably embroiled in politics. By investigating and disciplining executive branch officers, the oversight institution inevitably becomes a part of the political conversation. This is even more the case when the executive also has some measure of independence and power. The incentive is for that branch to fight back against any investigation and undermine it as much as possible, if only for self-preservation. This means that it is crucial that the occupant of the office behave judiciously and with great care; it is all too easy to get dragged into political mud fights that ultimately undermine the integrity of the institution and its perception as a protector of the public good. The breadth of the overseer’s mandate only heightens this risk, as it empowers the office holder to wade into issues that are more minefields than fruitful pastures for investigation.

Ultimately, Justice Scalia’s Morrison dissent is a timeless and valuable reminder:

I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution . . . . But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.[22]

This brief serves as a cautionary tale and a reminder: institutions can be impactful, but they are only as robust as the people who occupy them. Institutional power, when placed in the wrong hands, can pose a threat to the stability of any republic.

By Emanuel Waddell, Visiting Researcher, HSF, 4 September 2019

[1] SA Constitution, Chapter 4

[2] For example, the Court has interpreted Congressional powers to create the budget and pass laws as inherently granting the body the power to conduct oversight to ensure that funds are being spent appropriately and laws and being correctly executed. See https://fas.org/sgp/crs/misc/R43112.pdf.

[3] Public Protector Act

[4] https://time.com/5502647/prosecuting-the-president-history/

[5] SCOTUS Justice Elena Kagan, traditionally considered a liberal leaning jurist as compared to Scalia’s conservatism, said in 2015 that the Morrisondissent was “one of the greatest dissents ever written and every year it gets better.” See https://law.stanford.edu/stanford-lawyer/articles/justice-kagan-and-judges-srinivasan-and-kethledge-offer-views-from-the-bench/

[6] Morrison v. Olson

[7] Morrison v. Olson, 487 U.S. 654, 732 (1988).

[8]See Jack Maskell, The Independent Counsel Law, 45 FED. LAW. 28, 36 (1998).

[9]See https://clintonwhitehouse4.archives.gov/WH/New/html/clinton9-12.html

[10] 28 CFR § 600.1

[11] 28 CFR § 600.7

[12] 28 CFR § 600.8 – 600.9

[13] Even Special Counsel Mueller expressed frustration, both publicly and privately, with Barr’s summary. Seehttps://www.nbcnews.com/politics/justice-department/mueller-told-ag-barr-his-short-summary-special-counsel-report-n1000441

[14] https://www.nytimes.com/2015/06/21/magazine/can-thulisile-madonsela-save-south-africa-from-itself.html

[15] Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11

[16] Stu Woolman, A Politics of Accountability: How South Africa's Judicial Recognition of the Binding Legal Effect of the Public Protector's Recommendations Had a Catalysing Effect That Brought down a President, 8 CONST. CT. REV. 155, 192 (2016).

[17]Id.

[18] https://www.huffingtonpost.co.uk/2018/06/12/mkhwebane-gets-roasted-over-legal-nonsense-report-on-zille_a_23456593/

[19] Niles L. Godes, Ty E. Howard, Independent Counsel Investigations, 35 AM. CRIM. L. REV. 875, 894 (1998).

[20] To read the letter sent by the Helen Suzman Foundation to the Speaker of the National Assembly calling for an expedited vote in the House on the incumbent Public Protector’s fitness to hold office see here: https://hsf.org.za/news/press-releases/letter-to-the-speaker-of-the-na-26072019.pdf

[21]See https://www.bloomberg.com/graphics/trump-administration-conflicts/

[22] Morrison v. Olson, 487 U.S. 654, 731 (1988).