In light of Nkandlagate and various other high profile scandals involving those in public office, the role of the Public Protector has been put under the microscope for the public, and politicians, to dissect.
The throngs of Zuma supporters have openly attacked Thuli Madonsela and the office of the Public Protector, laying allegations of acting ultra vires and politicking on their doorstep. And for every pro-Zuma complaint there is an equal and opposite complaint from the opposition party, the DA, that the Public Protector has not done enough, in terms of its Constitutional mandate, to ensure compliance with the Nkandla findings compiled by its office.
Has the Public Protector overstepped the mark in its assiduous pursuit of bringing President Zuma to book for "unduly benefiting" from the state-funded upgrades done to his Nkandla home, or is the opposition correct?
The office of the Public Protector was established in terms of South Africa's Constitution to investigate complaints against government agencies or officials. It's known as a Chapter 9 institution, referring to the fact that its authority is derived directly from that Chapter of the Constitution, which guards its independence. The mandate and powers of the Public Protector are expanded in the Public Protector Act.
While compiling her report on Nkandla titled Secure in Comfort, Thuli Madonsela posed certain questions to President Zuma and requested him to provide the bond documents to Nkandla. To date, no response has been provided to most of these questions and the President failed to furnish the bond documents. Section 7(4) (read in conjunction with section 9(3)) of the Public Protector Act renders it a criminal offence for any person to refuse to answer questions put to that person by the Public Protector regarding an investigation. It also renders it a criminal offence to refuse or fail to produce any document in his or her possession or under his or her control that has a bearing on the matter being investigated.
The Public Protector also made a finding that the President unduly benefited from the security upgrades to his home and that the Ministers of Public Works and Police "failed to comply with the prescribed standards of proper demand management and budgeting". She further requested a formal response from the President regarding her findings. To this end a third enquiry, the inter-ministerial report being the first, was ordered by the President. The Special Investigating Unit was tasked to conduct another report and the President would only comment once these findings were made public (at the time of writing this investigation is still ongoing).
In his paper titled The Role of the Public Protector in Fighting Corruption, published in the African Security Review, Gary Pienaar notes that the Public Protector is the "one institution that is above the watch dog institutions" and has the "widest scope of control over executive power." It has the discretion, in cases where criminal wrongdoing is clear, to refer the matter to the authorities responsible for criminal prosecution. Consequently the motive behind setting up yet another enquiry must be questioned. Perhaps a delaying tactic to thwart the efforts of the Public Protector, bearing in mind the national elections would have been concluded by the time the findings of the Special Investigations Unit are to be made public? The President's actions fly in the face of the supposed authority bestowed upon the office of the Public Protector by the Constitution.
Thuli Madonsela herself admitted once that, "As an office, we don’t have coercive powers but we do have persuasive powers that encourage implementation of our recommendations". Although the Public Protector does not have the remit to enforce its findings, it is my considered opinion that Thuli Madonsela did not use every arrow in her quiver. With legislation on its side and the public pressure that could be generated in today's media-friendly society, the Public Protector is much more than just a paper tiger.