MEDIA COVERAGE OF PUBLIC PROTECTOR’S PROPOSAL: ALL FLUFF, LITTLE SUBSTANCE

So the Public Protector Adv. Busisiwe Mkhwebane has decided not to oppose a court challenge to the constitutionality of her proposal to parliament to amend the constitution in order to slightly change the South African Reserve Bank’s Charter. It is important to keep in mind though that there isn’t yet a court ruling on the matter, as some in the media have suggested. But media coverage of her proposal has been bad from the get go.

It appears that all it takes to tar Adv. Mkhwebane’s work are tendentious allusions to the Gupta name. In this connection, every possible line has been tried. On the 26th of June, Justice Malala argued in The Times that because Des Van Rooyen, who has been linked to the Guptas, used a similar rhetoric as the one underpinning Mkhwebane’s recent proposals, that she too must have been tutored by the Gupta spin machinery.

Judith February, for her part, wondered in The Daily Maverick on the 21st of June, whether it is a mere coincidence that “this recommendation and attack on the SARB has come soon after the President’s associates, the Guptas, who are at the centre of state capture allegations, have had several clashes with South African banks”.

As it turns out, no more than the good ol’ fashioned subliminal suggestion is needed in order to execute the perfect Public Protector hit-job. Apparently the media is no longer in the business of backing their suggestions up by offering evidence.

Don’t get me wrong. I am in no way insinuating that Adv. Mkhwebane is beyond reproach. But neither am I pontificating that she isn’t. Why? I have no evidence. And if any of the articles I have read around her recent proposals are anything to go by, neither does anyone else.

Beyond these trifles, there are at least two questions the media should be asking about the Public Protector’s proposals which they have either only glossed over or have not even asked at all. First, does the Public Protector have the mandate to recommend an amendment to the constitution? Second, what are the merits of her recommendations?

In the media’s engagement with the first question, effort appears to have been made to suggest two things : (i) that Adv. Busisiwe Mkhwebane is claiming powers to amend the constitution, and (ii) that she is “ordering” Parliament to amend the constitution.

Framed thus, the media then marshals constitutional scholars and lawyers to proclaim that she doesn’t have such powers.

Clearly she has neither power.

But a cursory view of her report shows that she neither claims to have such powers, nor does she need such powers in order to make proposals such as those she has made. She merely made recommendations to the Justice committee in Parliament, which Parliament is well within its rights to dismiss, although I think they would be remiss to do so. (Update: Parliament has joined the court bid against the PP’s recommendations, arguing that it is unconstitutional.)

Important constitutional questions, however, remain. Does the PP have the mandate to make recommendations of any nature to parliament? More specifically, does the PP have the mandate to make recommendations of a “constitution-amending” nature to parliament? Additionally, does the PP have the mandate to make recommendations that arguably encroach into the ministry of a member of the cabinet, say, the Finance Minister? These are the questions the media could have, but hasn’t, asked.

My initial non-constitutional-lawyerly impression is the following: the PP’s mandate is to protect the public. There are places where she can do so effectively within the framework of current laws. But there are definitely places where current laws are insufficient. It would be utterly partisan to argue, as some have, that proposing new laws or amendments to current laws wouldn’t be part of the task of protecting the public, at least in principle.

But in what exact way does Adv. Mkhwebane want to have the constitution amended, or mutilated (depending on your predilection)?

She has asked for a sentence in S224 which currently reads: “[T]he primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic” to be changed to “[T]he primary object of the SARB is to promote balanced and sustainable economic growth, while ensuring that the socio-economic well-being of the citizens are protected.”

She proposes to replace the SARB’s current mandate to protect the currency with a new mandate to protect the “socio-economic well-being of the citizens”.

It seems to me that it is not at all unusual that a “Public Protector” would have an interest in “protecting” the socio-economic well-being of the “public”, that is, citizens. It is also not unusual that monetary policy should be geared toward securing the interests of ordinary citizens, rather than toward protecting the value of the currency, as though the currency is valuable in its own right.

Most people understand that money is no more than a symbol, a stand-in for the things that actually have value to us. The currency is supposed to serve our interests, no matter how frivolous those interests turn out to be. Beyond that, it is utterly useless. That a proposal which suggests that the constitution make this explicit is met with incredulity is quite bizarre.

To be sure, you could argue that the value of the Rand is directly linked to the interests of ordinary South Africans. A stronger Rand represents a stronger chance of improving the prospects of ordinary South Africans, you might say.

This argument is somewhat weird, seeing as the value of the Rand in 1981 stood at R0.79 per Dollar; the strongest it has been in recent memory. This sure did not precipitate marked improvements in the lives of “ordinary” South Africans. Not unless you define “ordinary South Africans” as the white people who were the sole beneficiaries of the state’s largesse at the time. This argument surely has the feel of Helen Zille praising colonialism for bringing piped-water when many poor families still don’t have it.

But assuming that this argument was correct, it would still be the case that we should protect the currency not for its own sake, but as a proxy for protecting the interests of ordinary South Africans. It is not as clear as many want to make it seem that this change in language in the constitution would occasion unalterable change to the day-to-day task of managing inflation which the Reserve Bank currently has. Managing inflation is, after all, one way of protecting the “socioeconomic well-being of the citizens”.

In sum, the media needs to begin paying attention to the substance of what government officials say, rather than feasting on the webs of conspiracy that can be weaved around it, or writing about their ideas with a tone of derision and a touch of elitists disregard. That has to stop.