Public protector selection process starts off badly

Posted in Blog

by Mukelani Dimba*

20 July 2016

“Omnishambles!” This is how a colleague described the beginning of the parliamentary selection process for the next public protector after the end of advocate Thuli Madonsela’s term at the end of October 2016. The ad hoc committee on the appointment of the public protector met on last week on Wednesday, 13 July 2016 to compile a shortlist from 64 nominations that had been received.

The public protector is an important constitutional body, a pillar for upholding accountability in the management of public resources. Given its centrality in upholding the constitutional order and state accountability, the process for appointment of the public protector is provided for in section 193 of the constitution. The section provides that the public protector must be a fit and proper person, a South African citizen and that the appointment must be made by the president upon recommendation by the national assembly. The constitution requires that a committee of parliament should make a recommendation and such recommendation should be approved by the national assembly before submission to the [president. Sixty percent of members of the national assembly should vote in favour of the recommended candidate before the recommendation is submitted to the president. More importantly, the constitution provides for the involvement of civil society in the process of selection of a candidate.

The constitutive law on the public protector, the Public Protector Act no 23 of 1994, does not provide granular detail on the process that must be followed on the appointment of the public protector, it is left to parliament to develop rules and procedures for the workings of the ad hoc committee and other modalities pertaining to the recruitment and selection process.

It became clear very early when the committee met on Wednesday last week that no such rules and procedures existed and that the process was headed for troublesome times. Despite her good intentions, the chairperson of the ad hoc committee, Dr. Makhosi Khoza, battled to establish a process for smooth navigation of what without a doubt will be highly contested exercise and outcome. A process should have been designed to provide for timeous distribution of application documents to all members of parliament in the committee before the shortlisting meeting commenced, the process of assessing all nominations against agreed criteria, engagement with public comments on the candidates and a determination of the type of interviews to be done.

When the committee met on Wednesday last week none of these essential navigational tools were in place. Members of parliament from the opposition parties complained that they had not received some of the essential documents to be able to engage with the shortlisting process. For example, while all CVs of candidates had been distributed to all MPs, not all assessment questionnaires completed by the candidates had been distributed to all MPs. MPs only had public comments from Corruption Watch but not the other public comments submitted.

It was at this point that the process descended into a farce. The meeting had to be adjourned twice to allow parliamentary support stuff to print all the outstanding documents. Opposition MPs also yielded too early on their original concern that even if all the documents had been then been made available at the meeting, they would not have had time to digest the content of those questionnaires and public submissions. They allowed the process to proceed, and at that point it was merely a name-recognition contest.

There was no assessment of all the candidates against a set of criteria for that had earlier been presented by the committee’s researcher. MPs simply began to shout names of candidates that they liked. The rules were made on the trot and changed at a whim. For example the committee agreed on a shortlist of 10 candidates and that all candidates that had not submitted the questionnaires will be disqualified. An hour later four of the candidates that had not submitted questionnaires were then included in the shortlist and final list became 14 instead of the agreed 10. Furthermore, the shortlist of 14 is not a reflection of candidates that best meet the criteria and it is not based on consideration of public comments on the candidates. It is based merely on each MP’s preference. For example, if Prof. Pierre de Vos were to ask the basis on which he did not make the shortlist, it is doubtful if any of the MPs in the committee would be able to give him a credible answer.

The committee is proceeded with undue haste. This will have an effect of undermining the public participation imperative to this process. This is an important process and should not be rushed; a weak process will lead to a weak result: a weak Public Protector. Our country cannot afford such an outcome during this moment of great upheavals in the governance of many critical public institutions.

*Mukelani Dimba has a cameo role as the director of the Open Democracy Advice Centre.