Institute for Security Studies (Tshwane/Pretoria)

19 November 2013

South Africa: Attacks On the Public Protector Threaten South Africa's Constitutional Democracy

analysis

The recent attacks on South African Public Protector Thuli Madonsela in relation to her report on the investigation into the R210 million upgrade to President Jacob Zuma's private Nkandla homestead should raise alarm bells for those who value South Africa's constitutional democracy.

After attempting to interdict the Public Protector from releasing her interim report to the appropriate stakeholders for comment, the ministers of police, justice, intelligence and defence, known as the security cluster, realised that their reasoning would not withstand judicial scrutiny.

They subsequently withdrew the court action and paid costs. This is a deeply embarrassing climb down, as it became clear that Madonsela would not be intimidated from doing her constitutionally mandated job.

The legal route backfired badly, since the litigation forced Madonsela to reveal in her affidavit that there had been repeated attempts by cabinet ministers and the acting state law advisor to halt her investigation.

In addition, she stated that it was unlikely that there were justifiable security concerns to support the spending of, in the words of Congress of South African Trade Unions (COSATU) spokesperson Patrick Craven, a 'grotesque' amount of public money on Zuma's private homestead.

This occurred when it emerged that the President's private architect, who had overseen the entire project, had neither security clearance nor expertise in security matters. It was subsequently reported that none of the three contractors involved in the bulk of the work had security clearance for 18 months while working on the project.

This raises questions about the legitimacy of the so-called security concerns that have been used by the security cluster ministers and the Minister of Public Works as an excuse to try to protect this project from public scrutiny.

Worse for the president, it is claimed that Zuma personally chose his architect, again casting doubt on his assertion before parliament that he knew nothing about the construction project.

The lengths that the security cluster ministers have been prepared to go to save the President from embarrassment are becoming increasingly apparent. Their failure to prioritise their constitutional responsibilities has severely compromised the integrity and performance of the criminal justice system and national security.

This is the reason why violent crimes such as murder and robbery are on the increase, organised crime is rampant and every corruption indicator in South Africa is increasing.

Political interference in the South African Police Service (SAPS) has badly damaged the ability of its senior leadership to improve policing. It is not surprising that the components closest to our politicians, namely crime intelligence and the VIP protection units are the most dysfunctional and blighted by misconduct and corruption.

Minister of Police Nathi Mthethwa's alleged protection of criminally accused Lt-Gen Richard Mdluli, has done incalculable harm to the important Crime Intelligence Division. This is not too surprising since it was under Mdluli's command that R200 000 from the Secret Service Account was misused to renovate Mthethwa's private home.

This misuse of funds has yet to be thoroughly investigated by an appropriate criminal justice agency such as the Hawks or the Special Investigation Unit (SIU).

To date no one has been held accountable and the money has not been returned. The controversial choice of Robert McBride to head the Independent Police Investigative Directorate (IPID) shows how little importance the minister attaches to the public credibility of the institutions for which he is responsible.

The Minister of Justice and Constitutional Development, Jeff Radebe, assisted in the appointment of a dishonest and incompetent individual, Advocate Menzi Simelane, as National Director of Public Prosecutions (NDPP).

South Africans had to witness a costly and protracted legal battle before the Supreme Court of Appeal was able to act in the national interest and halt Simelane's corrosive influence at the National Prosecuting Authority (NPA).

His replacement, acting NDPP Advocate Nomgcobo Jiba, was later lambasted by the courts for trying to protect Mdluli. No action has yet been taken against her or Advocate Lawrence Mrwebi for their unlawful and irrational decision to withdraw criminal charges against Mdluli.

It is difficult to believe that national security is suddenly so important in relation to Nkandla when the intelligence services under the current Minister of State Security, Siyabonga Cwele, could not detect or prevent a military base from being used as a private transport hub for foreign aircraft and guests of the Gupta family.

According to Intelligence head Gibson Njenje, Cwele forced out three top intelligence officials for investigating the Guptas over concerns that they posed a serious threat to national security.

These concerns later proved to be well founded and the Guptas have yet to be held accountable for breaching a number of South African laws concerning their misuse of the Waterkloof air force base. This has fuelled speculation that they are allowed to ride roughshod over the country's laws because they are bankrolling a number of Zuma's family members.

The threat facing South Africa's constitutional democracy does not come from the Public Protector, who has remained scandal free and is simply trying to do her job under difficult circumstances.

Rather, the threat emanates from high-ranking politicians and officials who refuse to adhere to the principles enshrined in the constitution and the laws of the land.

How else does one explain how R210 million of taxpayers' money is spent on a single private residence when that amount could provide homes for up to 50 000 people? And how does one explain the deterioration of the criminal justice system alongside the rampant increase in corruption in South Africa?

It should not be too difficult for cabinet ministers who cherish South Africa's constitutional democracy to demonstrate that they are committed to the rule of law.

This would have seen Mdluli's criminal prosecution long finalised and the Guptas facing criminal prosecution for their flagrant disregard for South Africans national security.

Moreover, our cabinet ministers would not be attacking institutions such as the Public Protector but using their privileged positions to ensure that these institutions are allowed to exercise their powers and perform their duties unhindered and unencumbered.

Chapter 9 of South Africa's constitution provides for the establishment of state institutions to strengthen the country's constitutional democracy.

These institutions, among them the Auditor General, the Independent Electoral Commission and the Public Protector, have a constitutional obligation to carry out their duties in an impartial manner and without 'fear, favour or prejudice'. It further states that 'no person or organ of state may interfere with the functioning of these institutions'.

Senior politicians and government officials have a duty to uphold the principles of the constitution and ensure that they strictly adhere to the country's laws and regulations.

Sadly, it is becoming increasingly clear that other considerations are driving decision-making at the highest levels of government. Rather than noticeable improvements in our criminal justice system and intelligence capacity we have seen a worrying decline in both with corresponding increases in organised crime and corruption.

South Africa's criminal justice and Chapter 9 institutions, which were created by the architects of the country's constitution for the purpose of preventing abuses of power, are either under attack or, in the case of the criminal justice system, in a state of disarray.

This is a huge price for South Africa to pay so that a clique of highly placed individuals can be allowed to act with impunity to advance their own material interests above those of the country as a whole.

Hamadziripi Tamukamoyo, Researcher, Reitumetse Mofana, Intern, and Gareth Newham, Head, Governance, Crime and Justice Division, ISS Pretoria.

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