South Africans will over the next few months ride yet another wave of excitement and debate about who should be the next public protector. The advertisement for the post closed last Friday, after which parliament will make recommendations to the president who appoints the public protector and the deputy.
This obsession with the individual — the cult of personality — is dangerous because it comes at the expense of the institution. Yet, in the long run it is the strength and health of the institution that matters more than who sits at its helm. Strong institutions tend to survive bad leaders relatively better than weak ones.
The public protector, the head of the institution, and the deputy are appointed for non-renewable terms of seven years. Below them is the bureaucracy that includes administrators and a team of people who investigate complaints. The long-term health and strength of the institution depends on the calibre of the bureaucracy. A strong bureaucracy can slow down a bad public protector.
The Public Protector of SA is one of the chapter nine institutions created by the country’s constitution to help with the consolidation, growth and sustaining of democracy. The ad hoc committee on the review of chapter 9 and associated institutions noted in its July 2007 report that “an institution such as the public protector is an important addition to the armory of mechanisms that are employed to create the substance of fair and stable constitutional government”.
It matters therefore who parliament recommends and President Cyril Ramaphosa appoints as the next public protector. But what matters most is the health and strength of the institution, an issue that parliament does not give attention to when interviewing candidates. Parliament focuses on too technical a criterion, which excludes skills of leadership and institutional building.
The candidate must either be a judge of a high court, an advocate or attorney with 10 years’ practice, qualified to be admitted as an advocate or attorney (with 10 years’ experience lecturing in law), has specialised knowledge or 10 years’ experience in the administration of justice, public administration, or public finance, or has been an MP for 10 years. None of these talk to leadership, which is key to building and maintaining a strong, healthy institution.
Nkandla shenanigans
And it is the health and strength of the public protector as an institution that will ensure consistent performance. A public protector that carries out its function consistently is what South Africans, especially those who cannot afford costly litigation, need. It will help the country avoid what has been bedevilling the public protector since the institution was created in October 1995. The perceived success of the institution in holding government to account has oscillated, depending on its head. And South Africans should put a stop to this. The role of the public protector is too important to leave to the fortunes of who its head is.
In its most recent past, Thuli Madonsela was seen as a heroine, largely because of the two major reports the institution produced. The first was on the Nkandla homestead shenanigans and the second, on state capture, work that Madonsela published shortly before the end of her term.
Then came Busisiwe Mkhwebane, who has been seen by some as a villain. Her term of office was defined by the long list of investigations the findings and remedial measures of which have been shot down by the courts, including the Constitutional Court.
This shows that the country has placed too much store by the individual heading the institution. Not enough attention has been paid to the overall strength and health of the institution, at the core of which are women and men who are employed by the public protector, the institution.
There should therefore be greater focus on strengthening the public protector’s administrative and investigative capacity. This requires the following:
- The calibre of people who are appointed to the institution should be examined.
- Their security of tenure should be strengthened by making it difficult for the head of the institution to remove or fire administrative and investigative staff.
- Parliament, to which the public protector accounts, must, as part of accountability, find ways to gauge the health and strength of the public protector’s bureaucracy.
An additional protective layer can be built around investigations and reports. For example, should the public protector as the head of the institution disagree with the drafters of the report, it should be disclosed in the report, and the public protector must explain the basis of the disagreement. Strengthening the hand of the bureaucracy is the only way to chip away at the cult of the personality of the public protector.
• Sikhakhane, a former spokesperson for the finance minister, National Treasury and Reserve Bank, is editor of The Conversation Africa. He writes in his personal capacity.
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