An Opinion published in The Star of 17 April 2023 on page 5

 PP's Office Deserves to be Independent

Former public protector advocate Thuli Madonsela was challenged by the last administration until the Constitutional Court ruled that her remedial action was binding. This ruling has set a precedent for constant litigation against the Public Protector's Office.

The Public Protector's Office is a Chapter 9 institution that protects the vulnerable from the abuses of power by investigating complaints received from the public. The protector then holds those who exercise power to account. It is not easy for those who are in power to admit that they are wrong and take responsibility.

The Public Protector of Zambia, advocate Caroline Zulu-Sokoni, testifying at suspended public protector Busisiwe Mkhwebane's impeachment inquiry on January 30, said "the public protector is in a vulnerable position (because) it investigates the executive" which both created it and funds it.

The executive, in attempting to evade responsibility, can now lodge application for review against the public protector's remedial action at the High Court. This happened when, for instance, the public protector found that the president breached paragraph 2 of the Members of Executive Code of Ethics and section 96(1) of the Constitution and required the Speaker of Parliament to demand publication of all donations received by the president in his CR17 campaign, but he lodged an application for review at the High Court.

President Cyril Ramaphosa gave permission for the suspension of the public protector after Mkhwebane sent him 31 questions about the Phala Phala affair. The protector challenged her suspension at the Western Cape High Court, where it was found that the "hurried nature" of the decision after the Phala Phala probe was retaliatory and unlawful, and the court ordered she be returned to office.

This appeal was heard at the Constitutional Court, where advocate Dali Mpofu argued that the president took the decision to suspend the public protector to evade responsibility and that, since he was being investigated by the public protector, he could have recused himself from taking the decision as there was bias. Judgment was reserved.

The public protector must also be accorded the same immunity and protection to be able to work independently, without favour, prejudice and fear, as judges are.