A public protector's job is to make sure people stick to the law - not to change it

Busisiwe Mkhwebane, the public protector of South Africa.
EPA/Nic Bothma

Cathleen Powell, University of Cape Town

South Africa’s Public Protector 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.

As many commentators have pointed out, the Public Protector cannot order that the Constitution be amended. It is not part of her job and it’s outside her powers.

The Constitution gives the Public Protector the task of investigating

any conduct in 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.

The focus of her investigation is thus conduct. This is 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 Public Protector claimed to 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.

But what the Public Protector wants to do is to change the law itself. She is not satisfied with determining whether the Reserve Bank 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 has ordered that 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, 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 Public Protector, Thuli Madonsela, found that members of Cabinet had violated their obligations under the Constitution 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 remedial action was to recommend that the secretary of Cabinet update the policy to provide ministers with more detailed guidance, and to recommend that the minister of police review the Apartheid-era National Key Points Act. This review was required to clarify the Act’s application and to 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 prescribed the exact wording of the new provision. She said that the clause which currently reads:

The primary object of the South African Reserve Bank 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 South African Reserve Bank 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 Public Protector 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 Public Protector 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 Public Protector 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 in South Africa, 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, because the Public Protector can bring this influence only if she enjoys legitimacy in her own right. She does not, in part due to 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 Public Protector or the State Capture report appear to have been forced out of their jobs.

Mkhwebane could have found better ways of proving that 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, as 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.

Cathleen Powell, Senior Lecturer in Public Law, University of Cape Town

This article was originally published on The Conversation.