Letting politicians choose an official whose job is to watch over them is not a brilliant idea. The public protector’s findings on public enterprises minister Pravin Gordhan will be settled in the same manner as many of her other findings on national figures — in the courts. Discussing the merits should wait until the courts have ruled.
However, what is already clear is that if the constitution makers believed the public protector’s office was going to be above partisan politics, they did not understand this country. Attitudes to this protector and her predecessor depend on where you stand on the ANC’s factional divide. Those who defended Thuli Madonsela denounce Busisiwe Mkhwebane and vice versa — using the same language and making the same points. For both sides, the protector’s job is not to protect the public but to support their favoured politicians.
These divisions have increased markedly since the Constitutional Court ruled that the protector’s decisions are binding unless a court overturns them, which dramatically raised the stakes. In one sense, the irony that most public voices believe an official who is meant to protect the public from politicians should protect their preferred politician matters less than it seems. The office’s controversial cases land up in the courts, whose rulings are credible across factional lines.
But do we really want a public protector office whose role, on cases involving national politicians and officials, is to trigger a stream of court cases, further loading courts which, as former deputy chief justice Dikgang Moseneke has warned, are already burdened by cases that should be settled by democratic politics?
If it is left to courts to settle disputes, only those who can afford legal fees will be heard. Nor will we entrench the idea of an independent office protecting the public if the public protector’s rulings are respected only if they are seen to help particular politicians.
One way to change this is to relook at how the protector is chosen.
The person who is meant to protect the people from politicians is chosen by politicians. The president makes the appointment on a recommendation from a parliamentary committee. This is a good way to ensure the job is seen as a political appointment, made to serve a faction. But if the public were to decide who protects them, people are more likely to see the office as a check on politicians, not a factional tool.
The government is moving towards a greater public role in key appointments — the head of the national prosecuting authority was chosen by a committee in which the legal profession played a major role, making it more likely that she is seen as a professional chosen by her peers. Selecting a public protector is more difficult — the person chosen should enjoy the support of the people, not a profession. And there is no way of ensuring that more than 50-million people are fairly represented on a committee.
We could try a method that is used to test public opinion in some countries — a citizen panel. Citizens are chosen randomly, not elected, so we don’t know how representative they are. But, just as pollsters can use an accurate sample of the population to measure public opinion, a randomly selected citizen panel may well express what most citizens want. If leaving the choice of the public protector to randomly chosen citizens seems risky, they could be limited to recommending names.
A public say in the decision would not end controversy over the public protector, but whoever gets the job would be seen as, at least, partly the choice of the people, not politicians, which could enhance respect for the office across political boundaries — whoever gets the job.
• Friedman is research professor with the humanities faculty of the University of Johannesburg.
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