The Public Protector is not above the law

Justice Piitso says Thuli Madonsela's decision to release Nkandla report in midst of an election is astonishing

The office of the Public Protector is not above the law of our democratic state

On Wednesday the Public Protector will be releasing the much awaited report of her investigations of the security upgrades at the official residence of our state President at his homestead of Nkandla. Her investigations have generated an enormous interest across the spectra of our society.

The investigations have again brought to the fore the most important question on the role of the office of the Public Protector into our public domain. It must however be made categorically clear that the office of the Public Protector, like any of the chapter nine institutions, is not above the law.

The Public Protector is appointed by the President of the Republic on the recommendation of the National Assembly in terms of the provisions of chapter nine of the constitution of 1996. Her powers, duties and scope of work is regulated by the provisions of the Public Protector Act.

Section 81 of our Constitution ensures that the Public Protector shall be subject to the constitution and the law of the country. The office must be impartial and therefore exercise its powers and functions without any favour, fear or prejudice.

The mandate of the office of the Public Protector is essentially about ensuring that we succeed in our common purpose to build on the unity and cohesion of our rainbow nation. Her task therefore is to ensure that there is transparency, accountability, integrity and general good governance in the management of public resources.

Our constitution stipulates that the role of the office of the Public Protector is to safeguard the rights of our citizenry, including that of our own President, and ensuring that institutions of the state conduct themselves in an independent, dignified, effective and impartial manner.

It will be a fatal mistake to our democracy to allow the forces of reaction, those who are opposed to the transformation of our country, to create a false impression that the Public Protector is the law unto herself. They have even created a hysteria that to criticize the office of the Public Protector and other chapter nine institutions, is the attack to our democracy.

The fundamental principle remains to be that no individual will be allowed to misuse powers and responsibilities assign to them by our democratic constitution. The reasons why we must always remind ourselves that the office shall always remain and individuals will come and go.

Therefore Advocate Thuli Madonsela cannot be an exception. Our constitution does not elevate any of its citizen to be above the law irrespective of the positions of responsibility bestowed upon them.

Even the President of our Republic Cde Jacob Zuma is a subject of scrutiny by the laws of our country. But this does not imply that his rights as an obedient citizen of our country should be violated by some of the unscrupulous elements in our society for perambulating selfish political manoeuvres.

We are of the firm view that the independence and impartiality of the office of the Public Protector is the bedrock for the success of our transition to our democratic future. The office is required by the law of the country to conduct its mandate in a fair and a credible manner. 

We are still astonished by the time and space of the release of the report. On record she has always downplayed the claims that she was planning to release the report at the height of the elections campaign. Today the truth has triumphed.

Her report is exactly released few weeks before the date of our national general elections. It may not even be far-fetched to assume that this may be a ploy to use the office to tilt the balance of forces in our country in favour of the counter revolutionary momentum. 

It will be much interesting to see how her report contradicts the recommendations of the inter-ministerial task team appointed to make a thorough investigations on the matter. Her posture in the recent past has created serious doubts on the reputation of her office.

For over centuries of Apartheid colonial rule and domination our people have endured immense depravations and sufferings that violated their dignity in the land of their own birth. The racist Apartheid regime was the most corrupt ever in the history of human development.

The levels of corruption and mismanagement of public resources over the years of the vicious white minority regime reached unprecedented proportions. There were no systems of government in place to make those who were holding positions of responsibilities accountable to the people.

We are proud of the ANC led government for having established institutions meant to make all of our citizens accountable and ensuring that we eradicate corruption and all its manifestations in our society. We are the only government after three and half centuries of imperialism and colonialism to lead the struggle to eradicate the cancer of corruption threatening the moral fabric of our society.

Phatse Justice Piitso is the former Ambassador to the republic of Cuba and the former provincial secretary of the SACP writing this article on his personal capacity.

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