This is an attempt at balancing, seemingly, the independence of the Public Protector on the one hand, and the Public Projector’s accountability to the legislature on the other hand. These seeming contradictions came to a head last week as the Public Protector presented the annual financial report to the Parliamentary Committee for Justice, as required by the Constitution.
The Public Protector’s report to the Parliamentary Committee amongst other things, revealed that her office had finalised 26 642 of 39 817 cases but that the Office’s liabilities exceeded its assets, therefore making it technically insolvent. Officials from the governing party sitting on the Committee in turn alleged that the Public Protector’s Office is “dysfunctional” “run in an undemocratic fashion” and “over bloated”. The same officials also concluded that due to her poor leadership, staff morale was low and further, that her staff was “suffering from depression due to her iron hand”.
This prompted an outcry from various political parties who viewed these remarks in Parliament as a deliberate attempt to undermine the Office of the Public Protector, given the adverse findings she had made against the President with regard to the security upgrades made to his home, ostensibly without this knowledge, using public funds.
The Public Protector’s Office is established by section 182 of the Constitution as an institution supporting South Africa’s constitutional democracy. The Constitution grants the Public Protector powers to investigate any conduct in state affairs which is alleged to be improper. The Public Protector’s Act, as provided for in the Constitution, further enumerates the powers and functions of the Public Protector. As such, the important role it plays in articulating the needs and protecting the rights of citizens outside of party politics and vested interests, cannot be over-emphasised. Section 181(5) of the Constitution states that the Public Protector must account to the National Assembly and report on activities and performance at least once a year. The Public Protector is required to report on the implementation of her mandate, as well as the expenditure of public funds. Parliament is then tasked with providing mechanisms through which the Public Protector is held accountable. In the same vein, section 181(3) of the Constitution imposes a duty on state organs to “assist and protect” the Public Protector and ensure that the “independence, impartiality, dignity and effectiveness” of the Public Protector.
While the questioning and remarks made by Parliamentarians during the presentation can be viewed as acceptable in a robust constitutional democracy, it is doubtful whether the chronic shortage of funds facing the Public Protector’s Office enhances constitutional democracy in any way. The Public Protector’s Office is important in holding government accountable. The independence of the Public Protector needs to be safeguarded in order to ensure continued impartiality and legitimacy in the eyes of the public.
The Constitutional Court has previously stated in Independent Electoral Commission v Langeberg Municipality that even if Chapter 9 institutions (of which the Public Protector is one), are organs of state as envisaged by section 239 of the Constitution, they cannot be said to be government departments over which the national executive has control. The same case further highlighted the need for Chapter 9 institutions to be financially independent as this would help them to function “without fear, favour or prejudice.” The case also affirmed the basic principle that Chapter 9 institutions should have some degree of financial independence.
In New National Party of South African v Government of The RSA, the Constitutional Court again highlighted the fact that section 181(3) of the Constitution tasked organs of state to engage with Chapter 9 institutions in a way that that does not interfere with the functioning of the Chapter 9 institutions. As such, meeting the budgetary requirements of the Public Protector’s Office can be one way of ensuring the effective functioning of the Public Protector’s Office.
Given that in 2009, the National Treasury had approved the Public Protector’s request for a full staff complement of 500 people, and yet the Public Protectors Office is still said to be staffed by just 314 people, it would appear that there is merit to the Public Protector’s request for increased funding. Funding for the Public Protector’s Office is at the moment allocated through the Department of Justice and Correctional Services. This may have a negative impact on the perceived independence of the Public Protector as this creates the impression that the Public Protector is accountable to the executive for the use of its finances. Indeed, the two cases from the Constitutional Court referred to above, while not stating that Chapter 9 institutions should be setting their own budgets, meant that Parliament, as opposed to the executive, should be providing enough funding to enable Chapter 9 institutions.
In September 2006, the National Assembly appointed a multi-party ad hoc committee to review the Chapter 9 institutions. The ad hoc committee report recommended, among other things, that the budget processes of Chapter 9 institutions be revisited in order to promote the independence of Chapter 9 institutions. In light of the above scenario, perhaps it is time the recommendations were revisited and implemented. Arguably the inherent tension in the Constitution can be assuaged through revisiting the Chapter 9 institution’s funding model, in order to bolster their vital roles in our constitutional democracy.
Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights