Public Protector and the Info Bill

8 December 2011

The Office of the ANC Chief Whip is pleased with the excellent work that Public Protector Thuli Mandonsela has done thus far since her appointment to the position by the President on October 2009. She indeed continues to carry out her responsibilities with due diligence, fearlessness and professionalism as required by the Constitution. This has supported government`s efforts in the battle against malfeasance and corruption and strengthened good governance, accountability and transparency.

We highly commend her for bringing great energy to this important office, which augurs well for the nation`s continued confidence in our constitutional democracy. She continues to enjoy and inspire our confidence.

We are nevertheless concerned with the recent correspondence the Public Protector made to the Speaker of the National Assembly regarding the non-inclusion of the public interest defence clause in the final draft of the Protection of State Information Bill, which was passed by the National Assembly recently. The Public Protector`s Office has also been quoted in the media expressing "concern" on the Bill and indicating that it would "investigate" absence of the public interest defence in the Bill if a complaint was made.

If media reports are correct, then the Public Protector appears to interfere in Parliament`s legislative process by questioning and threatening to investigate the institution`s legislative decisions. The action of the Public Protector worryingly implies that Parliament is accountable to the Office of the Public Procter, when in fact the opposite is true in terms of the Constitution.

In terms of Section 181 of the Constitution, all state institutions supporting Constitutional democracy, including the Office of the Public Protector, are accountable to Parliament. Section 8 of the Public Protector Act elaborates further on the question of accountability by stating that the Public Protector`s Office must report to Parliament on its affairs annually or whenever it is required to do so by Parliament. In this regard, and if the media reports are anything to go by, the Public Protector`s action is at odds with the Constitution and strongly suggests that she has overextended her authority.

The Constitution further affords Parliament powers to determine its own rules and procedures. Section 57(1) of the Constitution states unequivocally that the National Assembly may (a) determine and control its internal arrangements, proceedings and procedures; and (b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.

Therefore, no one has the right to interfere in the business of Parliament except in accordance with the Constitution and the rules of Parliament itself.

As a Chapter 9 institution, the Office of the Public Protector has the right to make submissions on draft legislations before Parliament. Indeed other Chapter 9 institutions have in the past made submissions to various committees in respect of Bills that came before Parliament. However, what a Chapter 9 institution cannot do is to question Parliament`s legislative decisions or meddle in Parliament`s law making processes.

Writing to the Speaker expressing concern on the legislative process or decision is bizarre, as the Speaker cannot be held responsible for or expected to explain legislative decision of the Assembly. As the head of the institution, the Speaker`s function is to facilitate the legislative processes, not to justify or clarify the decisions that political parties or members of the Assembly make on legislation.

We are however hopeful that, now that the Public Protector`s Office has shown interest in this Bill, it will prepare proposals on the Bill for submission to the NCOP Ad Hoc Committee when it opens its public consultations drive.

We are aware that our political adversaries and some of those who are at odds with the ANC on the draft Bill might expediently accuse us of attacking the Public Protector. However, as the majority party in this Parliament we will never shy away from speaking out in defence of the Constitution and its sacrosanct principles.

Issued by
The Office of the ANC Chief Whip
ANC Parliamentary Caucus
Parliament of the Republic of SA
Cape Town, 800

Enquiries:
Mol