Editorial Note

The SACP welcomes the change of mind by the Public Protector and her refusal to accede to the request by the South African National Editors Forum (SANEF) to investigate government's reasons in support of the Protection of State Information Bill. The SACP had already raised some of these matters in public and we had intended to publish our full statement on this matter in this edition of Umsebenzi Online. For the public record, we publish our full statement and opinion on the role of the Public Protector especially in relation to the PoSIB currently before parliament:

The Public Protector and the Rule of Law

In the constitutional negotiations at Codesa, the ANC and its allies insisted on a variety of measures and institutions supporting our democracy, one of which was the establishment of the office of the Public Protector. The SACP fully supports and respects the independence of this institution, and that it must conduct its work thoroughly, independently and without fear or favour, but within the prescripts of our regime of rights and the rule of law as contained in our Constitution. In addition, the SACP fully supports the role of the institution of the Public Protector as one of our key state organs in the fight against all forms of corruption, 'tenderpreneurship' and abuse of public office for personal gain or self-enrichment.

The SACP is however deeply concerned by what appears to be serious deviations by some of the recent actions of the Public Protector; actions that run the risk of demeaning the stature of this important institution. It is our view that as citizens of a democracy we must at all times be vigilant that institutions supporting our democracy must act in a manner that is within the framework of the law and the Constitution and also respect other organs of state and their respective constitutional responsibilities.

The SACP has once before raised concerns about the manner in which the Public Protector tends to conduct her investigations through the media, in a manner that seriously runs the risk of violating the rights of individuals and compromise the integrity of this important office. It must also be borne in mind that all our institutions supporting democracy are above the individual incumbents at any particular time. Therefore it is incumbent upon any holder of such office to defend and protect the independence and integrity of these institutions.

Firstly, it is improper for the Public Protector to reactively announce in the middle of a radio interview, for the first time, new investigations about individuals, no matter how legitimate the concerns of the Public Protector may have been. Secondly, the ANC Chief Whip is absolutely correct to warn the Public Protector not to dabble into legislative processes that are still before Parliament. Such processes are an exclusive domain of Parliament as a sovereign body tasked with the responsibility of processing and passing legislation.

In our Constitution the national legislative function is exclusively the sphere of parliament and parliament alone! Any legal reviews of such legislation for its constitutionality is also the exclusive preserve of the Constitutional Court and can only be done after passage of such legislation. Our Constitution is absolutely clear on these matters:

"In the Republic the legislative authority of the national sphere of government is vested in Parliament...

"When exercising its legislative authority; Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution"

It is therefore improper and irregular for the Public Protector to begin to pronounce herself on legislation that is legitimately still under consideration by Parliament, and outside the prescriptions set by Parliament for legislative purposes. Just like the Public Protector has no right to investigate whether any of its members have, either in the house or before any of its committees, misled Parliament. This is governed by internal parliamentary rules and the Public Protector has no such authority in law.

But even more serious is for the Public Protector to take a view in support of one partisan stance on a legislative matter, without any fair or due process followed to arrive at such. Requirements of fairness and due process, well established in our law, require of any institution supporting our democracy, fairness, impartiality and transparency in the conduct of their work. For instance the Constitution, prescribes that, amongst other things, Chapter 9 institutions, of which the Public Protector is one, "are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice". Specifically in relation to the Public Protector the Constitution prescribes that "The Public Protector must be accessible to all persons and communities".

A serious question that arises from the above is whether the Public Protector is acting impartially and without prejudice when she formulates a view about legislation that is before parliament, as is the case with the Protection of State Information Bill, without stating what processes she has followed to arrive at such a view? How accessible and impartial will she be when in future she may have to deal with issues that may be legitimately raised by 'persons' and 'communities' that hold a different view to those opposing the PoSIB? For all intents and purposes the Public Protector is already prejudiced against those supporting this Bill, thus potentially compromising the impartiality of this office.

The SACP is also of the view that for the Public Protector to act as a representative or interlocutor for parties that might have problems with legislation before parliament is outside the mandate of her office. The Constitution clearly states that the primary function of the Public Protector is investigative and not a mediator, representative or intelocutor on behalf of any grouping. The Constitution says "The Public Protector has the power, as regulated by national legislation.. to investigate any conduct of state affairs or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice". Nowhere does she have authority to act as a representative of particular groupings before Parliament. Such intelocution is also completely unnecessary as any individual or group has the right to appear directly before parliamentary committees without any mediation by anyone.

Even if one were to concede that the Public Protector has a right to take a view about any legislation before parliament, this must at least be preceded by a fair and open transparent process, and for her to listen to all sides before making up her mind. We are not aware of any such process on the part of the Public Protector to reach out to all sides of the PoSIB debate. In fact by her own admission, she has met with, and has been successfully lobbied by, only one side to the debate.

By so doing the Public Protector risks being beholden to partisan views and political agendas and not listen to or be 'accessible to all persons and communities'. This is completely inconsistent with, if not in violation of, the requirements of the law and our constitution. Such a posture may completely destroy the confidence our people have in our democratic institutions. Our country, as the constitution prescribes, requires a Public Protector not a Partisan Protector!

In the interests of safeguarding our Constitution and the integrity of all institutions supporting our democracy, perhaps the time has come now for the Public Protector to transparently inform and engage, without prejudice, the South African public about the modus operandi of this office.

This note first appeared in the SACP's online journal Umsebenzi Online.

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