This essay will look at the role of the institution of the National Public Protector (NPP) as enshrined in Chapter 9 of the South African Constitution with respect to constitutional democracy. Additionally, an analysis of the powers, duties and it’s (the NPP) institutional relationship with the other chapter 9 institutions.
The protection for constitutional democracy is borne out of answering a question dating back to the Roman Empire: “Quis custodiet ipsos custodies?” which translated means “who protects the rights and interests of the individual against possible abuse by persons in public office?” During party negotiations for a new constitution it was recognized that parties would have to agree on establishing institutions with the mandate of advancing democratic governance. Chapter 9 institutions in the South African Constitution can be defined as statutory institutions established by government, mandated to protect democratic governance. These institutions serve as legislative measure to reinforce their significance with regards to the architect of governance at a national level.
The Constitution provides in section 181(2) a mandate of the NPP which highlights that it is an institution founded on strengthening democracy as to ensure that all state organs are held accountable, in a manner that is fair and not prejudice. Additionally, the NPP is independent and subject only to the Constitution and the law. In that regard, it is accountable to the National Assembly and is instructed to report on its activities at least once a year. Lastly, no person or organ of state may interfere with its independence in fulfilling its functions. In the case of Public Protector v Mail & Guardian the judge stressed that “the Constitution upon which the nation is founded is a grave and solemn promise to all its citizens. It concludes a promise of representative and accountable government functioning within the framework of pockets of independence that are provided by various independent institutions. One of those institutions is the office of the Public Protector.” Two further important pieces of legislation regulate the operation of the NPP, namely the Public Protector Act which validates the investigating powers of the NPP and the Executive Members’ Act which empowers the NPP to investigate all allegations of violations of the Act and Code by the members of the executive. These acts make the mandate of the NPP one of the most general amongst the other Chapter 9 institutions.
The case highlighted two most crucial interpretations regarding the mandate of the NPP. First it provided: “the function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth.” Secondly it highlighted the importance of the NPP insofar as “it provides what will often be a last defence against bureaucratic oppression, and against destroying the nation. If the institution falters or finds itself...