Public Protector: No requirement for security clearance

Posted in Blog

12 August 2016

The interviews for the Public Protector have given rise to serious concerns, says the Open Democracy Advice Centre (ODAC). The requirements for the Public Protector position do not contain any requirement that the incoming applicant or incumbent should obtain security clearance to any particular level. This is the case in both the Public Protector Act and the Constitution. However, during the proceedings of the ad hoc committee on the appointment of the Public Protector, a letter was discussed by the committee, apparently sent to parliament by the Sate Security Agency. In the letter it states:

"It should be noted that although Mr. Malunga is a South African citizen he does not meet the security requirements required for the post applied for. This post requires security clearance to the level TOP SECRET. At this stage Mr. KS. Malunga only qualifies for a security clearance to the level of CONFIDENTIAL".

We understand the implication to be that only a person born in South Africa qualifies to have a TOP SECRET clearance. Mr Malunga was born in Zimbabwe. 

We note that Mr Malunga has been acting as Public Protector on more than 30 occasions, and is the deputy public protector currently. He has presumably had sight of all relevant documents, and is privy to all relevant conversations in the public protector's office. If he has no clearance, and this is necessary, which we think it is not, then why has he been allowed to continue in his position? If he needs clearance, why is this only being drawn to the attention of parliament now?

The Committee, in our view, cannot consider a requirement for the position which is outside the law, ultra vires and has not been made known to all applicants and the public prior to opening of applications for the position. We ask the committee to consider this before proceeding. 

 

 

Dasnois vindicated

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Dasnois vindicated: this time the headline is true.

Alide Dasnois was removed from her position of editor of the Cape Times by the new chief executive of the Independent Newspapers, Iqbal Surve, on 6 December 2013 at a meeting in Claremont.  She was fired from the company five months later, following a disciplinary hearing which found her guilty of misconduct, incompatibility and incapacity. She was ostensibly fired for publishing the news of Nelson Mandela’s death in a wrap around of the Cape Times, and not the front page.

In a landmark settlement of the case Dasnois brought against Independent Newspapers, the newspaper group conceded that it was Dasnois’ prerogative as editor to decide how to publish the news of the death of Madiba. They also acknowledged that Alide Dasnois was not motivated by racism, and that they (Independent Newspapers) retracted all allegations of racism made against her. 

 

After informing a court that Independent News agreed to end the dispute with Dasnois, they immediately recanted with a view to painting a picture of themselves as being vigorously opposed to any settlement and then being “vindicated” in court - when no such thing had happened. The Code for members of the Press Council provides that allowing commercial, political, personal or other non-professional considerations to influence or slant reporting constitutes serious misconduct on the part of a news group and Alide Dasnois lodged a complaint with the Press Ombudsman.

The Press Ombudsman has now required the Cape Times to apologise to Alide Dasnois for stating as fact in its headline that Independent Newspapers had been vindicated. 

ODAC welcomes this decision, as well as the direction that the Cape Times, the Diamond Fields Advertiser and The Star must apologise to Dasnois for omitting to state in their coverage of the settlement that the agreement entailed that Independent Newspapers withdrew all allegations of racism against Dasnois, that she never intended to show disrespect for Mandela, and that her editorial independence was not in dispute; and publish the agreement between the parties in full.

Visit the Press Council website for the full finding.

 

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.

Interrogating power, information and distortion

Posted in Blog

By Gabriella Razzano

The role of non-governmental organisations in advancing access to information is a vital one. Often, such organisations act as powerful advocates in the pursuit of information - particularly from the state - on behalf of citizens. However, this role is not necessarily as cut and dry as we would like it to be.

The Good Governance Learning Network has just released a fantastic publication entitled: "(Re)claiming Local Democratic Space: Perspective from civil society on local governance in South Africa".

And within this publication ODAC took the opportunity (from page 26 to 33) to critically examine the potentially profound role non-governmental organisations can play in accessing information, but also how they need to remain cognisant of the power they yield in such situations to prevent distortion. You can read more here.

 

Crime stats decision hailed

Posted in Blog

 

Quarterly release of crime stats hailed

09 June 2016

The Open Democracy Advice Centre (ODAC) welcomes the cabinet decision that crime statistics will now be released quarterly. South Africans are currently denied real-time access to information regarding the extent of crime in their neighbourhoods.

ODAC has always held the position that is not sufficient to have crime statistics released only annually and that information related to incidences of crime must be made available in real-time and available at local levels such as local police stations. Regular access to information on incidences of crime locally is critical in enhancing the people’s ability to take proactive steps to protect themselves from,  and prevent further occurrence of, those crimes. It will unlock the ability of the citizens to better understand the types and extent of crime in their local areas and therefore be able to support law enforcement agencies and community groups in fighting crime more effectively.  The challenge of creating and sustaining safer communities is not government’s challenge alone, but a challenge that should be tackled by government agencies working in partnership with communities they are meant to serve. The basis for such a partnership building trust and is a free flow of information is its cornerstone. 

While the cabinet’s decision on quarterly release of crime statistics does not provide the basis for availability of crime statistics in real-time and hyper-locally, it is nevertheless a step in the right direction.

Released by: Open Democracy Advice Centre

Contact: Mukelani Dimba

Cellphone: 082 699 6586