The current spat over the jurisdiction of the Public Protector and Parliament’s influence over the Public Protector raises some difficult questions with no easy answers.
The problems can probably be summarised by asking the question, “who watches the watch dogs?”. In a constitutional context, the short answer is, everybody watches them.
South Africa has a constitution that makes specific provision for various institutions to promote and further the cause of democracy under the protection of the Constitution. The Direct Democracy Forum feel that the Constitutional Court should fall under those provisions, viz, the Constitutional Court should be a chapter 9 institution, tasked with protecting the Constitution, Democracy and the Rule of Law. It should be the senior constitutional body in the land and particularly it should watch over Parliament, which, if some of the legislation Parliament produces is anything to go by, would dearly like to subvert the constitution and democracy.
The Constitutional Court protects the constitution from the machinations of parliament quite effectively. It also watches over government and its tendencies to subvert or ignore constitutional demands and does that quite well, too. But the DDF feel there would be a clearer line of accountability if the Constitutional Court were only subject to the dictates of the constitution and were protected from political influence in the same manner as chapter 9 institutions. In a DDF wish-list, that sort of accountability is just about tops, followed closely by all other chapter 9 institutions being responsible to the constitution, through the offices of the Constitutional Court. So the Public Protector would not be directly accountable to Parliament, which could then only be able to interfere with the Public Protector’s actions and investigations and modus operandi by means of a constitutional amendment with all the high profile effort and political support needed to achieve that. It would not be easy for parliamentarians or members of government to interfere in the affairs of any section 9 institution, and that would be the aim.
For anyone interested, the Judiciary would continue to be accountable to the Constitutional Court. Lower, but not much lower on the wish list, would be the removal of the president or any other political person or institution from the process of appointments of any judicial officer, from the highest to the lowest appointment. We need a better system than we have at present, a system which makes the constitution, the Constitutional Court, all chapter 9 institutions and all lower courts practically invulnerable to the whims of the body politic.
The DDF think that is a good thing to wish for and any DDF administration would do all in its power to achieve those ends.
As a caveat, the DDF believe that the Public Protector must investigate where and how it feels it should, without interference from parliament.
The buck stops at the ballot box.