No fear, favour or prejudice

The appointment of former public protector Lawrence Mushwana as chairperson of the South African Human Rights Commission (SAHRC), out of a total of 217 nominations, has elicited very little reaction from the public or political parties.

This indifference is surprising, given both the importance of the position and Mushwana’s track record as public protector.

The public protector and the SAHRC are two of six state institutions established in terms of the Constitution to strengthen our constitutional democracy. The public protector is our watchdog over the exercise of public power.

Given our political system of closed-list proportional representation, the protector provides civil society with the only mechanism, other than costly private litigation, of ensuring that government acts lawfully.

The SAHRC similarly provides individuals with a mechanism other than the courts to obtain redress for the violation of any constitutionally ordained rights. It is also charged with an accountability function, requiring it to interrogate publicly the progress that the state and other sectors of society are making in the pursuit of the enjoyment of human rights for all.

It is imperative that both these institutions operate independently, free from executive interference. For this reason, SAHRC commissioners are required to serve impartially and independently and to perform their duties “without fear, favour, bias or prejudice and subject only to the Constitution and the law”, according to the empowering legislation. Appointments to the SAHRC are governed by section 193 of the Constitution to ensure that the commissioners are South African citizens who are “fit and proper” to hold office. These words have a well-established juristic meaning that also applies to all judicial officers. Personal qualities of honesty, integrity and reliability are required, as are sufficient experience, scholarship, intellectual integrity and emotional maturity to act without “fear, favour or prejudice”—in other words, with complete intellectual independence and honesty.

Potential commissioners therefore need to demonstrate a commitment to the advancement of human rights and have a track record that reflects this commitment and the requisite independence and ability.

The newly elected chairperson’s track record raises questions regarding his independence. In the matter of M&G Limited and Others vs The Public Protector, Judge Ntsikelelo Poswa of the North Gauteng High Court delivered a detailed, lengthy and damning judgment in July this year concerning Mushwana’s refusal to institute a proper investigation into the so-called Oilgate scandal involving senior ANC officials, and specifically his refusal to pursue a money trail to the ANC.

Poswa concluded that Mushwana “ought to have investigated the complaints that he did not investigate and to have investigated more fully the ones he did investigate ...” The judge attributed this failure to the public protector incorrectly interpreting the parameters of his authority, as provided for in the Constitution and the Public Protectors Act.

Mushwana did not undertake the investigation himself, but the official who did—Stoffel Fourie, the public protector’s head of special investigations—testified that he did so “under the direct control of [Mushwana]”, which Poswa’s judgment noted. Mushwana is appealing the judgment.

These criticisms are particularly disturbing when viewed against the background of Mushwana’s appointment as public protector. He had served the government as deputy chairperson of the National Council of Provinces, an appointment preceded by a distinguished career in government as a loyal ANC cadre. It is tempting to suggest that, in reaching his decision not to investigate certain claims and to investigate others very superficially, Mushwana lacked the absolute intellectual independence necessary to act “without fear, favour, bias or prejudice”.

It is also worrying that the independence and ability of some of the full-time commissioners supporting Mushwana have likewise been questioned.

These include Lindiwe Mokate, who had previously worked as chief executive of the SAHRC and had left under a cloud in 2005. Her tenure was beset with difficulties, including an exodus of staff and allegations of mismanagement and reports of victimisation by senior management.

These difficulties culminated in concerned staff writing an open letter to the speaker of Parliament in 2005 claiming that at least 15 staff members had resigned in the first six months of that year and calling for her urgent intervention to save the commission from what they termed a “crisis”.

Much still needs to be done to make the rights promised in our Constitution a living reality for all. The SAHRC’s task is further exacerbated by the fact that the new commissioners take over at a time when their predecessors are no longer there to pass on 15 years of institutional memory. One hopes that Mushwana will embrace the powers conferred upon him in strengthening our democracy and will at all times act “without fear, favour, bias or prejudice”.

Advocate Nikki de Havilland is director of the Centre for Constitutional Rights