Selby Baqwa, the official appointed to fight the abuse of power, is himself tangled up in red tape, reports Gaye Davis
PUBLIC protector Selby Baqwa may be one of the most powerful people in the country, but he has run into major problems over the appointment of the nine provincial public protectors he needs to help deal with the cases flooding his office.
Mandated in terms of the interim Constitution to root out government corruption, abuse of power and bureaucratic rudeness and delays, Baqwa’s headache stems in part from a tough African National Congress negotiating position on the final constitution that aims at ensuring provinces have limited muscle to flex.
The interim constitution says provinces must legislate for the appointment of the provincial protectors that Baqwa sees as becoming the hands and feet of his operation. But the draft final constitution makes no mention of them.
As a result, the Free State and Gauteng are holding back on their legislation because they first want to see what the final constitution says. State law adviser in the Free State, Johan Meyer, said there were contractual concerns about appointing a person to a seven-year term of office in a job that might not exist under the final constitution.
The seven other provinces have already adopted legislation, and Mpumalanga and the Northern Province have taken steps to fill the posts. But ANC MP and constitutional negotiator Baleka Kgositsile said a decision was taken at the weekend to instruct the provinces to withdraw their advertisements.
She said the ANC wanted provincial protectors to fall under Baqwa’s jurisdiction and to be funded by the national office.
But Baqwa’s problem is that he cannot set up provincial offices because he is governed by the interim constitution, which clearly states this is a job for the provinces.
After Gauteng approached him to set up an office for the province, Baqwa wrote to Constitutional Assembly co-chair Cyril Ramaphosa. He was told the problem would be dealt with by transitional arrangements.
It was important I brought it to the attention of the Constitutional Assembly because it does represent a real headache, he said. Right now I need these offices to be up and running. Everything is coming here.
The offices are necessary to increase accessibility for the public and delivery of the service. If the aim is not to have provincial protectors appointed by the provinces, they could fall under my office and be financed from national level.
He has now asked Ramaphosa to spell out precisely what transitional arrangements are envisaged.
Kgositsile said she had sympathy for Baqwa’s position, but that it would not be in the long-term interests of the country not just the ANC’s interests to have provincial public protectors as provided for by the interim constitution.
Our problem would be one province setting up its own rules and regulations and acting autonomously, possibly duplicating the work of the national public protector and not feeling obliged to consult, she said.
We say there will be a problem with nine provincial public protectors under a federal arrangement that you can’t control from the centre.
She said the issue was raised at a meeting last weekend of the ANC’s constitutional commission, which comprises national executive committee members and representatives from the seven ANC-led provinces, the Congress of South African Trade Unions and the South African Communist Party.
Provinces advertising the positions in terms of their own legislation had been told to withdraw the ads, Kgositsile said. This did not, however, prevent premiers from going ahead and setting up offices, though it was best Baqwa did this in consultation with the provinces.
Section 114 of the interim constitution says any provincial law shall not derogate from the powers and functions of the public protector. This gives Baqwa an override function over wayward provincial protectors and raises the question whether ANC fears are not perhaps overstated. However, the interim constitution provides for the public protector and his provincial counterpart to have concurrent jurisdiction. It is argued that provincial laws would be duplicating Baqwa’s role.
For Baqwa, a key concern is the volume of work he is having to deal with in the absence of provincial offices. If I have to start saying I am overloaded it will start eroding whatever confidence the public has in this office. At the very least, I ought to be able to set up the structures I am entitled to in the law.