The public protector’s decision to assist a highly paid academic who was suspended and sacked for financial impropriety and abuse of power is one of the low points of the watchdog’s first stint in office.
Selby Baqwa spent 13 months intervening in the disciplinary probe of the academic, the former vice-chancellor of the Vaal Technikon, Aubrey Mokadi. His office used its thin resources to seek legal aid for Mokadi. And finally it backed a threat to block the technikon’s funding if the technikon sacked the disgraced professor after he was found guilty last November.
The facts of the story speak for themselves and show that even watchdog institutions need to be monitored to ensure they do not misuse the considerable powers they wield.
But the story has also revealed how much uncertainty there is surrounding the role of the public protector.
The full extent of this confusion emerged during preparations for a press ombudsman hearing into a Mail & Guardian article on the saga. The article, entitled “Mr Clean protected dirty professor”, was the subject of an official complaint by the public protector. Baqwa claimed the article was malicious, inaccurate and an example of “gutter journalism”.
As reported last week in the M&G, the ombudsman, Ed Linington, has now ruled in the newspaper’s favour, rejecting all aspects of Baqwa’s case.
In written submissions to the press ombudsman by both the M&G and the public protector, much was said about the powers and function of the institution of the Office of the Public Protector.
The M&G argued that the public protector was essentially an anti-corruption body, designed to protect, principally, the man in the street from maladministration and corruption. The newspaper referred the press ombudsman to sections of the Public Protector Act that emphasise its true role by suggesting the types of complaints the public protector can pass over. These sections give Baqwa the discretion to reject complaints lodged by state employees. He can similarly ignore complainants who have not exhausted their normal legal remedies, a camp into which Mokadi could arguably have fallen.
The public protector’s representative, Stoffel Fourie, who handled the press ombudsman complaint, seized on the fact that these provisions cited by the M&G do not forbid the public protector from pursuing such cases, but merely give him the chance to ignore them. Fourie reminded the ombudsman that the public protector is in fact empowered to investigate “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”.
Fourie stressed it was up to the public protector which investigations he should pursue. The M&G replied that it was precisely the exercise of this discretion that was a matter worthy of debate.
Fourie rejected the M&G’s layman’s analysis of the Public Protector Act as an anti-corruption statute, and as a mechanism to provide the man in the street with swift administrative justice. He implied these definitions were too narrow, and sought to convince the ombudsman with statements such as: “It has been stated repeatedly that M&G are completely ignorant of the legal powers of the public protector.”
But he skirted the thorny issue of how Baqwa exercises his discretion.
There was also never a response to the M&G’s observation that the manner in which this discretion is exercised is particularly important in the light of Baqwa’s repeated complaints that he is woefully under- resourced and faces a massive case backlog.
And Fourie never offered a crisp alternative to the M&G’s analysis of the Public Protector Act as an anti-corruption statute aimed at the man in the street. Instead he kept referring to the catch-all power of the public protector to probe “any conduct in state affairs”.
This claim would be more acceptable had the public protector clocked up a better track record. But the institution has yet to deliver a decisive blow to government corruption. Baqwa has yet to produce a significant finding against the government.
However, it has had a good excuse – a measly budget. This lack of resources should have encouraged Baqwa to carve out a clearly defined role for himself, instead of allowing his office to become a repository for many pointless investigations. Considering the legislation that governs his office is so unspecific, he should been more proactive about honing his powers and perhaps have designed a set of widely advertised criteria to filter complaints. He could also have made his case selection process more transparent.
Baqwa has instead further blurred his role by allowing Parliament to saddle him with a rudderless inquiry into shenanigans at the state oil company in the sanctions era. His office has been occupied with the oil hearing for at least a year now, and it is set to run for another three months from June.
The ordeal will cost the taxpayer about R20- million – almost three times Baqwa’s R7- million budget last year.
This vagueness is not unique to the public protector. It also applies, for example, to the Human Rights Commission (HRC). Should its forthcoming hearings into racism in the media, not be handled by the press ombudsman if by anyone at all?
The absence of clarity about what some of these watchdogs are supposed to do has led to the relatively common occurrence of complainants going to several watchdogs at once.
In the Mokadi matter, Baqwa himself approached the HRC to help his office secure legal aid for Mokadi’s disciplinary inquiry. Baqwa was out of line getting involved in looking for legal aid for a R440 000-a-year professor, let alone rope in the HRC – one of several indulgences that made the saga a useful illustration of how our watchdogs are prone to coast aimlessly in the obfuscatory mists surrounding their true roles.