Chapter 9 Institutions: The Powers Conferred to the Public Protector.
The jurisdiction of Public Protector Thuli Madonsela and the degree to which Parliament can hold her accountable has come under intense scrutiny in Parliament and the debate is likely to rage for some time with neither side agreeing.
– Wyndham Hartley, BDLive 2013
The above quote, was published in an Op-ed 3 years ago, the powers of the Public Protector have been the subject of debate for quite some time. Advocate Thuli Madonsela currently holds the high ranking office of the Public Protector, with Advocate Kevin Malunga as her deputy in office, together overlooking and looking out for, and protecting the interests of the citizens of this country.
What are Chapter 9 Institutions?
They are the ‘State Institutions Supporting Constitutional Democracy’. These institutions include, inter alia the Human Rights Commission; Commission for Gender Equality; Auditor General and the subject of this write up – the Public Protector as per section 181(1) of the Constitution. Section 181(2) makes further provision for the independence of these institutions, consequently, they’re only subject to the Constitution and the law. The area of contention however, which has led to robust debate and recently – litigation, lies with section 181(4), the subsection states: No person or organ of state may interfere with the functioning of these institutions. Is this provision too vague?
Chapter 9 Institutions serve a pivotal role in the country, they are to act with impartiality, dignity and effectiveness.
The Mandate of the Public Protector’s Office
Loosely put, the Public Protector’s office does exactly that – it protects the public. Its powers are regulated by national legislation, with the promulgation of the Public Protector’s Act ‘’the Act’’. The office is to:
- To investigate 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; - To report on that conduct; and
- To take appropriate remedial action
.
Most importantly, the Public Protector doesn’t act as anyone’s legal representative, this is in the interests of impartiality and accountability. The Act stipulates how one may report a matter to the office and various other powers. Given the recent constitutional court case RE: #NkandlaReport, the question of the extent of the office’s powers have finally been settled, for now they are binding.
I will not stop doing what section 181 (5) of the Constitution says I must do.
– Adv. Thuli Madonsela
*NEWS ANALYSIS: Public Protector’s Powers Under Intense Scrutiny, BDLive http://bit.ly/1TqzcXu
*Public Protector Act, 1994 [No. 23 of 1994], SAFLII http://bit.ly/1RJpX0U
* The 1996 Constitution of the Republic of South Africa http://bit.ly/1tpHH2o
