The Appointment of Constitutional Watchdog Leaders in Africa: The Case of South Africa’s Public Protector

Vollständiger Abstract

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This article examines the appointment of constitutional watchdog leaders through the lens of the South African saga involving the former Public Protector, Busisiwe Mkhwebane. Democratic Alliance and Another v Public Protector of South Africa and Others (2023) serves as a point of departure to excavate the deeper fault lines that run through the bedrock of African constitutionalism. In the wake of South Africa’s state capture scandal – a grotesque manifestation of the privatisation of the state – there was drama and the demise of Busisiwe Mkhwebane’s tenure. This spectacle laid bare both the impossibility of the guardian role and the tensions inherent in the postcolonial state’s efforts to reconcile the imperatives of democratic accountability with the lingering legacies of colonial governmentality. Against this backdrop, this article interrogates the efficacy of parliamentary processes in selecting watchdog leaders, questioning whether these mechanisms, steeped in traditions of Western liberal democracies, can truly produce guardians of constitutional integrity in the African context. It also probes the possibility of ‘depoliticising’ these appointments – a notion that is itself a political act imbued with its own set of power dynamics. Drawing on comparative law, institutional analysis and Foucauldian-decolonial thought, this study unravels the complex web of relations that govern the selection and performance of these sentinels. Methodologically, this qualitative and desktop study relies on the doctrinal reading of constitutional texts and case law, philosophical critique, and a purposive comparison of appointment modalities in South Africa, India, Kenya and Canada.