Mungo Soggot
The Office of the Public Protector, one of the state’s main watchdogs against corruption and maladministration, has had a limited impact since its inception after the 1994 election. It has not exposed any significant instance of impropriety, and has at times allowed itself to be sidetracked by investigations of questionable importance.
The office has, for example, just wrapped up a three-month probe into whether Mpumalanga Premier Ndaweni Mahlangu infringed the Executive Members Ethics Act with his notorious statement that it was acceptable for politicians to lie.
The public protector concluded that Mahlangu had indeed slipped up and should therefore formally apologise to the provincial legislature. But the watchdog’s efforts now appear to have been in vain: the African National Congress has brushed aside the report’s recommendations. And there is nothing Public Protector Selby Baqwa, a Durban- based lawyer widely respected in legal and political circles, can do about it.
His office was handicapped from birth. It was initially accorded a measly R7- million annual budget, which allowed for only a skeleton staff in Pretoria and no provincial branches. After Baqwa hit out at the government for depriving his office of resources, his budget was increased to allow for a quadrupling of his staff.
An Achilles heel seems to be the public protector’s apparent failure to screen and prioritise the deluge of complaints with which it has been confronted. The office is given little guidance by the legislation governing it: the Public Protector Act allows for investigation of “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”.
The Act makes it difficult for Baqwa to say no, and arguably gives him excessively wide powers – especially in the light of his limited resources.
When questioned about their role, Baqwa’s officials have rejected the suggestion that the Public Protector Act is an anti-corruption statute aimed at providing the man in the street with swift administrative justice. They have, however, failed to come up with an alternative, layman’s explanation of their role.
The most striking example of the public protector’s questionable exercise of its powers was its attempts to help a senior academic at the Vaal Technikon, who was the subject of a disciplinary inquiry into various instances of impropriety.
Despite the fact that the academic was given a lengthy disciplinary hearing, before senior counsel, Baqwa’s office saw fit to try and stop the disciplinary probe from acting against the academic.
There was no reason for Baqwa to get involved in the first place, let alone interfere with another, properly constituted disciplinary inquiry. The academic was eventually sacked, and Baqwa’s office quietly moved on.
Baqwa has yet to make a serious finding against a member of the ANC. A leading political commentator said this week that the greatest test to date will be its forthcoming finding in the rambling inquiry into shenanigans at the state oil company during the sanctions era.
The inquiry was instituted after the former minister of minerals and energy, Penuell Maduna, effectively accused the office of the auditor general of being, among other things, party to the theft of R170-million – an allegation which was based on Maduna’s misinterpretation of an accountant’s note.
In summing up the auditor general’s case, advocate Eberhardt Bertelsmann said Maduna had known he had wronged the auditor general shortly after his outburst in Parliament, but had nevertheless not bothered to retract the allegation.
If Baqwa accepts those facts, it would be difficult for him to avoid censuring Maduna, who is now minister of justice and constitutional development, or even recommending the minister’s removal from office.