X-Factor South Africa: Who can fill Thuli Madonsela’s shoes?

Deputy Public Protector Kevin Malunga, the one-time secretary to the Marikana commission of Inquiry, is in the running. Making the rounds are the names of Advocate Dumisa Ntsebeza, who represented the families of the Marikana mineworkers killed by police in August 2012, and Advocate Dali Mpofu, the Economic Freedom Fighters national chairperson who acted for the injured Marikana miners.

Advocate Vusi Pikoli, a former National Director of Public Prosecutions who currently is the Western Cape’s police ombud, told Daily Maverick he has turned down a nomination. “I thank all the people who wanted to nominate me. I am humbled by their confidence in me. I have declined all nominations,” he said.

The deadline is this Friday. As the clock is ticking, lobbying and consultations continue over nominations and ensuring their acceptance.

Those in the running will officially emerge only next week when the nominees’ names are made public, although Khoza on Wednesday confirmed the nominations for Madonsela (ineligible due to the constitutional stipulations) and Malunga. “The rest of the people, I will not be able to tell you.”

The process to appoint a new Public Protector, one of the institutions established in the Constitution to support democracy, is closely watched. And so is the ANC at Parliament, making it not as easy as previously to ram through a candidate on the back of ANC numbers in the House. The search for a new Public Protector comes amid often sharp criticism from civil society, analysts and opposition political parties of the political machinations at institutions like the National Prosecuting Authority (NPA), the South African Revenue Service (SARS) and the Hawks, Independent Police Investigative Directorate (Ipid) and SAPS, where a number of former uMkhonto we Sizwe (MK) figures who became police officials are being sidelined or worked out in favour of police officials who started their careers during apartheid, often in bantustan police forces.

Madonsela has proved to be independent-minded, and her office has pursued its mandate, often against the odds. MPs of the justice committee and Madonsela have clashed over, among other things, where her reports must be submitted, and whether her office was not taking on probes best left to the South African Human Rights Commission (SAHRC) or Commission for Gender Equality, also Chapter 9 institutions established in the Constitution to support democracy.

Madonsela has been called a “spy” and “CIA plant” by the governing ANC and found herself on the sharp point of criticism over her more high-profile investigations like the Nkandla security upgrades and various probes into ministerial luxury hotel stays and flight. While the focus may have been on such high-profile investigations, the Public Protector annually assists more than 20,000 people on matters of improper and prejudicial state conduct, be it unfair administrative action, protection of whistle-blowers or maladministration ranging from pensions to state grants and provision of services at clinics and elsewhere.

The protector’s office has emerged as one of best regarded institutions: a Afrobarometer survey in May 2016 put public support at 58%, significantly above the governing party (43%), the official opposition (36%), councils (35%) and the president (34%).

On Wednesday the parliamentary committee tasked with finding Madonsela’s replacement said 19 nominees had accepted their names being put forward. There is a question mark over two further nominations, both from members of the public, where the nominee has not indicated official acceptance, or submitted their curriculum vitae (CV).

So there could be some confusion about the paperwork, and whether it must be supplied by the nominees or those nominating. There also is some uncertainty over whether the nominees’ CVs will be made available in full, or whether the parliamentary committee would summarise qualifications and experience.

“If a candidate is giving us the green light, we can make the information available, nothing will be censored,” said Khoza, adding however that personal details such as number of dependants and state of health were not relevant to the position. “There is a legitimate expectation from members of the public; if you apply for the post of Public Protector, you should be open for public scrutiny.”

Civil society organisation, the Council for the Advancement of the South African Constitution said it would monitor the parliamentary process to ensure transparency and the opportunity for proper public participation.

Corruption Watch executive director David Lewis said the campaign for meaningful public participation would continue once the nominees names were public. “There’s a general pattern of people being reluctant to apply for public sector posts because of the way in which often they are treated if they do their job well,” Lewis said. “It will be a real tragedy if there are not a decent number of applicants of decent quality.”

However, Corruption Watch’s written request to extend the deadline for public comments on the names ahead of the MPs’ short-listing process has been turned down. Khoza said there was a strict time line. Public comment would be accepted any time before the short-listing process.

But that work may be delayed due to the 3 August local government elections as political parties have deployed their MPs on the campaign trail. Initially scheduled for mid-July for a week, the short-listing may not happen until after the municipal poll.

And so the pressure is on – as is public scrutiny of the choice of a key position in South Africa’s constitutional democracy. DM

Photo: Public Protector Thuli Madonsela (Greg Nicolson / Daily Maverick)