Attempts to discredit Madonsela could backfire

An ad hoc Committee of the National Assembly (NA) met on Wednesday to consider an explosive report by the public protector which found the chair of the Electoral Commission guilty of a conflict of interest. There was alleged confusion as to whether the Committee could call witnesses (including the public protector) with a view to “change” her original report. There was also alleged uncertainty about whether the Electoral Court could get involved in the matter as the conflict of interest (but not the denial of the conflict of interest) occurred when Tlakula was not the chair of the Commission but the chief electoral officer.

As I see it, the legal position of these matters is pretty clear, although the correct legal position would not suit the agenda of anyone whose aim might be to discredit the public protector.

The Electoral Commission and the public protector are both independent constitutional bodies. Section 181(3) of the Constitution requires other organs of state to “assist and protect these institutions” to ensure their “independence, impartiality, dignity and effectiveness”. Section 181(4) furthermore states, “[n] o person or organ of state may interfere with the functioning of these institutions”.

At the same time, section 181(5) of the Constitution states that these “institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.”

This means that the NA cannot interfere in the substantive work done by either the Electoral Commission or the public protector. It would therefore be impermissible for the NA to change the findings of a report of the public protector. While anybody can approach a court to have a report of the public protector reviewed on the basis that its findings are faulty in law or otherwise irrational, no other institution (including the NA) can review and ultimately change the findings of the public protector as this would constitute unconstitutional (and, in fact, criminal) interference in the work of the public protector.

Section 9(1) of the Public Protector Act affirms this, as it prohibits any person from insulting the public protector or the deputy public protector and from doing anything in connection with an investigation “which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court”.

It would be inconceivable for the NA to review a judgment made by a court of law and to “change” that judgment because members of the NA decided – based on its own investigation – that the court made a mistake. That would undermine the independence and credibility of the judiciary and would amount to a constitutional crisis. It should therefore also be unthinkable that the NA would “review” a report of the Public Protector with the aim of changing its findings. This, in my view, would amount to contempt of the public protector and would constitute a breach of the Constitution; it would also constitute a criminal offense in terms of section 11 of the Public Protector Act.

This does not mean that the NA does not have a right (even a duty) to engage with reports of the public protector if requested to do so. Section 9(2) of the Public Protector Act explicitly allows a “discussion in Parliament of a matter being investigated or which has been investigated in terms of this Act by the public protector.”

The NA is free – as it must be – to discuss the findings of a public protector report with the aim of deciding, first, whether it wishes to act on the recommendations contained in the report and, second, if it does wish to act, what action it wishes to take. In such a discussion, members of the NA must be free to criticise a report of the public protector on substantive grounds, just as we are all free to criticise a judicial decision on substantive grounds. What it would not be able to do is to intrude on the terrain of the public protector by reviewing and setting aside the findings of a report. That would amount to a flagrant abuse of power.

Therefore, normally the NA cannot itself review a report of the public protector, call its own witnesses (including the public protector) and then make its own findings that would “change” the findings in the public protector report. Similarly the NA cannot “review” the decision of a court of law. The NA could never recall all the witnesses in a criminal trial, including the judge, with a view of making its own findings on whether the accused should be found guilty of a crime or not. This would constitute a most flagrant breach of respect for the independence of the judiciary and would amount to contempt of court.

The NA therefore needs to tread carefully as it considers the public protector report that found Electoral Commission chair Pansy Tlakula guilty of a conflict of interest. The Electoral Act does empower the NA to consider whether to remove any of the commissioners of the Electoral Commission “on the grounds of misconduct, incapacity or incompetence”. But this can only be done “upon the recommendation of the Electoral Court”. The NA can therefore not consider action against any commissioner in the Electoral Commission unless the Electoral Court has recommended the removal of said commissioner. If it considered action against Tlakula without recommendation of the Electoral Court, it would be in breach of its duty to respect the independence of the Electoral Commission.

This does not mean that because Tlakula was not a commissioner at the time the conflict of interest arose, that the Electoral Court could not consider the matter. Section 9(2) of the Electoral Commission Act prohibits any commissioner from placing in jeopardy his or her perceived independence, “or in any other manner harm the credibility, impartiality, independence or integrity of the Commission” by “his or her membership, association, statement, conduct or in any other manner”.

The action of the present chair (which occurred when she was still the Chief Electoral Officer) may arguably now have placed in jeopardy her perceived independence as well as the credibility of the Commission. It matters not that it relates to action taken before she became chair. What matters is the possible effect this has had on the independence and credibility of the Commission.

However, having said this, the initial question of whether the chair of the Commission did indeed harm the credibility of the Commission is not something that either the public protector or the NA can answer. Only the Electoral Court can come to that conclusion. If it does, the Electoral Court will then refer the matter to the NA for further action. If the Electoral Court decides not to recommend removal, the ad hoc Committee of the NA can discuss the public protector report and act as a talk shop, but would otherwise be powerless to make any findings or take any action relating to the scandal. If it then did take action, it would be interfering with both the independence of the Electoral Commission and of the public protector.

Only once the matter has been properly referred to it by the Electoral Court would the ad hoc Committee be able to engage with the recommendations of the Electoral Court (not the findings of the public protector) with a view of deciding whether to recommend Tlakula’s removal from office. It is at this point that the NA would be mandated to engage with the question of whether there was indeed a conflict of interest and if there was whether it warrants removal of the Chair – based on the recommendations of the Electoral Court. If the ad hoc Committee of the NA engages with this question prematurely it runs the risk of infringing on the independence of both the public protector and the Electoral Commission.

This means the ad hoc Committee of the NA is acting prematurely. It needs to wait for a recommendation from the Electoral Court. Until such a recommendation is forthcoming, it must sit tight, no matter how eager some of its members might be to discredit the public protector.

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