Governance Watch

Public Protector must ensure law is upheld, not change it

Busisiwe Mkhwebane

The Public Protector’s proposal to change the mandate of South Africa's Reserve Bank goes well beyond her mandate and only is likely to reduce the standing of her own office.

South Africa’s PP, Busisiwe Mkhwebane, has directed a parliamentary portfolio committee to initiate proceedings to amend a clause in the country’s Constitution that sets out the primary aim of the country’s Reserve Bank (SARB).

As many commentators pointed out, the PP cannot order a Constitutional amendment. It is not part of her job, and outside her powers.

The Constitution gives the PP the task of investigating 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.

The focus of her investigation is thus conduct, underscored, and fleshed out by the Public Protector Act. The Act empowers her to investigate, among other things: maladministration, abuse of power, dishonest acts or omissions, improper enrichment, and acts or admissions which result in unlawful or improper prejudice to any other person.

In this case, the PP claimed to have approach her investigation by asking two questions: what happened? and, what should have happened?

The first is a question of fact. But to answer the second question, she notes, that the focus moves to the law or rules that regulate the standard that should have been met by the government or organ of state to prevent maladministration and prejudice.

In other words, it is the law that provides the points of reference which tell her whether the banks and government’s acts or omissions constitute misconduct.

However, what the PP wants to do is to change the law itself. Not satisfied with determining whether the SARB and government obeyed the relevant, current rules: she wants to write new ones.

Indeed, her recommendation goes well beyond changing individual rules to overturning their very foundation, anchored in the Constitution. She ordered a major decision of the Constitutional Assembly, which drew up the Constitution following the first democratic elections in 1994, on a complex matter of economic policy, to be thrown out.

This can’t be right.

No precedent

We must not be persuaded that there is any precedent for this. In her “State of Capture” report, the previous PP, Thuli Madonsela, found that members of Cabinet had violated their Constitutional obligations and the Executive Members Ethics Act by failing to prevent the misuse of state funds to upgrade the president’s private residence.

Part of her recommended remedial action was that the secretary of Cabinet update the policy to provide ministers with more detailed guidance, and that the minister of police review the Apartheid-era National Key Points Act. The latter was required to clarify the Act’s application and bring it in line with the Constitution.

There are two major differences between these recommendations and an instruction that a constitutional provision be reworded in a specific manner.

Mkhwebane prescribes exact wording of the new provision. She said that the clause which currently reads:

“The primary object of the SARB is to protect the value of the currency in the interest of balance and sustainable economic growth in the Republic,” should instead read:

“The primary object of the SARB is to promote balanced and sustainable economic growth in the Republic, whilst ensuring that the socio-economic well-being of the citizens is protected.

This is quite a different matter. Neither of Madonsela’s recommendation sets out the wording of the new provisions, merely the goal they should achieve. And, each is aimed at bringing the relevant provisions into compliance with higher laws to which they are subject – either the Executive Ethics Act or the Constitution itself.

And, this is because it is the job of the PP to remedy specific misconduct, and the job of Parliament to make laws.

In its judgment on the Nkandla case, the Constitutional Court held that the PP is subject “only to the Constitution and the law.” But, she is subject to them. And the Constitution sets out a specific, thorough process for the passing of any law, and particularly a constitutional amendment.

The elected representatives of the people are meant to debate all laws and fashion them into the form they believe is best for the country. If the wording of any law is determined in advance of this process, then the process itself is rendered meaningless – the Constitution’s law-making requirements are discarded.

The PP cannot throw out the Constitution. Her remedial action is therefore invalid.

Effects of the recommendation

If taken seriously, her recommendation has the potential to influence current political debates on economic development, supporting the line advanced by groups such as Black First Land First, and reducing the independence of one of the few public bodies which has not yet been tainted by evidence of state capture.

But, if this was the intention, it could backfire. The PP can bring this influence only if she enjoys legitimacy in her own right. However, she does not, partly because of her hostile treatment of her predecessor, and a perceived unwillingness to take steps against President Zuma and his allies.

She laid a criminal charge against her predecessor on receiving a complaint from the president, and then attempted to deny the legal import of her action. Staff closely associated with the former PP and/or the State Capture report, appear to have been forced out of their jobs.

Mkhwebane could have found better ways to prove she does not have a hidden political agenda than by producing a report which throws her legal acumen into serious doubt.

Her foray into economics is also deeply embarrassing. She justifies a drastic change in economic policy with eight lines of text, citing no authorities in economics and no evidence that her preferred approach does in fact, uplift the poor.

Her report is likely only to reduce the standing of her own office.

                                                                                                                           by Cathleen Powell

(This article was originally published on The Conversation. Cathleen Powell is Senior Lecturer in Public Law at the University of Cape Town.)

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