Must defend democratic institutions

LAST year a businessman who I respect invited me to a dinner table to have a chat. This businessman in no uncertain terms told me my criticism of the powers-that-be was career limiting, and I had to tone down my posture on issues of lack of leadership, corruption and maladministration.

My response was very clear: I have a responsibility first and foremost as a citizen of this country to defend the country's constitution and rule of law, and rebuke acts that will undermine the freedom that many of our heroes and heroines fought for so hard and died for. His response was that he wouldn't encourage me to thwart my chances to prosper in life.

I use this conversation to bring a point home that some people do recognise that rot is eroding values and the respect for the rule of law in both the private and public sectors, but are willing to wear blinkers and defend the indefensible.

My response is ignited by the calls to rubbish the public protector and her office's report on the security upgrades in Nkandla.

The posture by some even to claim that she is a CIA spy and she acts like the opposition is silly and childish, to say the least. That a deputy minister of state (Kebby Maphatsoe) could risk diplomatic relations with a super power – and one with which South Africa enjoys good bilateral relations, to boot – just to besmirch the name of a chapter nine institution is telling.

Most disappointing was the stance taken by what used to be vanguard of the working class (the SACP) to label Thuli Madonsela as populist and part of the wider right-wing offensive. The public protector is empowered by section 182 (1) of the constitution to investigate alleged improper conduct in state affairs or the public administration and to make appropriate findings about the alleged improper conduct.

As the Supreme Court of Appeal pointed out in 2011 in its judgment of the public protector v Mail and Guardian, the public protector is not a mere ombudsman, as the president alleged in his letter to her. The powers of the public protector are indeed wide-ranging, far exceeding those normally associated with an ombudsman.

Because the findings and remedial action taken by the public protector are made in terms of the constitution and the relevant legislation, it cannot be correct to argue – as the president does – that the president, a minister or the cabinet can review or set aside her findings.

Another body – such as parliament or the presidency – cannot amend the findings of the public protector because such a body disagrees with these findings.

This does not mean that anyone – including parliament – cannot discuss the findings of the public protector and cannot criticise the findings on substantial grounds. However, imputing bad faith on the part of the public protector – as some politicians have been doing – does not constitute criticism of the findings of the public protector and would therefore constitute a criminal offence.

The decision by the president to task the minister of police "to report to cabinet on a determination to whether the president is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports" is not authorised in law. If challenged, a court would almost certainly set aside this decision of the president on the basis that it is irrational and hence unlawful.

Quite importantly, especially to the ad hoc committee members, the National Assembly is not authorised to review and set aside the findings and remedial actions of the public protector.

If the National Assembly purports to do so, it would act in breach of the separation of powers doctrine.

Its task is limited to holding the executive accountable by checking whether the executive has implemented the recommendations and remedial actions set out by the public protector.

So I plead even with the opposition parties who staged a walkout last week to return to the committee and engage. What is also critical is for all MPs of all political parties represented in the National Assembly to remember that they took an oath and have pledged allegiance to the country's constitution.

All South Africans have a moral obligation and duty to defend all organs of state.

Gift Ngqondi, political researcher, Port Elizabeth