A glimmer of hope: Some lessons from the Nkandla case of South Africa (II)
A very important outcome of the Nkandla case is the clarification of the position of the Public Protector, and by necessary implication other oversight institutions. First in line is the Judiciary.
Advertisement
The Judiciary
A lot depends on the Judiciary, which is the fountain of justice. If the Judiciary fulfils its role effectively on the basis of the oath taken for the defence of the constitution, then the other branches of government, public institutions and all persons will be compelled to live under the rule of law. On this Chief Justice observed:
Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations. This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values.’
It is, therefore, imperative for our courts to carry out this responsibility without fear or favour. Lord Denning would have a problem with judges with “timorous souls” approaching this responsibility. For in the opinion of Lord Atkin, it is intolerable for judges to be “more executive minded than the executive” when carrying out this constitutional mandate. The Courts, especially the apex Court, the Supreme court of the land, should assert its authority to ensure that all live under the rule of law. It is significant to note that the Constitutional Court was chaired by the Chief Justice who delivered the judgement and did not take backstage in this high profile case. This is the standard practice in all jurisdictions.
The Legislature
Significantly, the Court made it clear regarding the expected role of the National Assembly, here Parliament, in the democratic process. It declared: “Holding members of the Executive accountable is indeed a constitutional obligation specifically imposed on the National Assembly.” Left unguarded the Executive can be reckless in the exercise of its enormous powers. In most jurisdictions the legislature acts as a watchdog over any possible abuses or excesses by the executive. The Constitutional Court, therefore, had no hesitation in declaring that the South African National Assembly was in breach of its constitutional obligation in failing to hold President Zumah accountable.
We hope that our Parliament shall take a cue from this and begin to hold the Executive accountable and become an institution that merely rubber stamps the actions of the Executive. Much of the burden should lie on the opposition that can lead the fight against any possible abuses or excesses by the Executive.
CHRAJ and EOCO
In Ghana, we have similar institutions that are expected to operate like the Public Protector in South Africa. The two most important are the Commission on Human Rights and Administrative Justice (CHRAJ) and the Economic and Organised Crimes Office (EOCO). The Court established the position that the Report by the Public Protector is binding on both the President and the National Assembly. The only body that has the authority to set it aside is a court of law. More importantly, the court stressed the importance of such an institution:
“The purpose of the office of the Public Protector is therefore to help uproot prejudice, impropriety, abuse of power and corruption in State affairs, all spheres of government and State-controlled institutions. The Public Protector is a critical and indeed indispensable factor in the facilitation of good governance and keeping our constitutional democracy strong and vibrant.”
Similarly, it is expected that public sector oversight institutions such as the CHRAJ and EOCO should play the role of ensuring “the facilitation of good governance and keeping our constitutional democracy strong and vibrant.”
