analysisBy Judith February
We find ourselves between a rock and a hard place. Last year, Public Protector Thuli Madonsela found that Independent Electoral Commission (IEC) Chairperson, Pansy Tlakula, had presided over an 'unmanaged conflict of interest' when the IEC entered into a R320 million lease agreement for office space.
The allegation was that Tlakula - who was then the CEO - had at the very least a business relationship with African National Congress (ANC) member of parliament Thaba Mufamadi, Chairperson of Parliament's finance committee, and that Mufamadi had benefitted from the deal.
Tlakula pronounced that she had recused herself from the decision-making meeting and that she did not personally benefit from the lease deal (although when precisely, and with what effect, she actually recused herself is somewhat unclear).
Again we find ourselves in the tricky area that has so besmirched political ethics in post-apartheid South Africa: conflict of interest, and its interpretation.
Where to start with this inevitably elastic concept? A useful business ethics definition is 'a situation in which a person has a private or personal interest sufficient to appear to influence the objective exercise of his or her official duties as say, a public official, an employee or a professional.'
So often in these cases, perception is everything.
But there is another issue that raises its head: whether it is at all desirable for someone in Tlakula's position to be doing business with a senior member of the ANC - or indeed any political party that is contesting the election.
The answer must surely be 'no' given that the IEC is tasked with administering free and fair elections, in which the ANC is a dominant player.
Considering that we are about to enter the most contested election since 1994, the argument in favour of ensuring that there is no possible perception of partiality in the running of the election is surely overwhelming.
Tlakula contested the Public Protector's report, and Madonsela submitted it to audit firm PwC for independent scrutiny. That report has not been released, but it appears as if the findings are even more damning and that criminal charges have been recommended - against as-yet-unknown members or officials of the IEC.
First of all, the report ought to be made public as soon as possible. Shrouding the matter in secrecy will not help and will cast more aspersions on the IEC at a crucial time.
Calls have been made for Tlakula to step down if indeed PwC confirms the Public Protector's findings, but it is hard to pre-empt the matter. What we do know at this stage is that the perceived 'unmanaged conflict of interest' casts doubts over Tlakula's own reputation.
Given that she is the head of the IEC, this controversy threatens the good reputation of the IEC more generally. Surprisingly, given that South Africa is on the cusp of an election, the Tlakula story has hardly made front-page news, apart from the Council for the Advancement of the Constitution (CASAC) sensibly calling for the matter to be brought into the public arena and resolved.
The IEC has been the jewel in the crown of our constellation of Constitutional bodies, under the helm of the graceful and firm Brigalia Bam, with Pansy Tlakula at her side.
Over the years Tlakula garnered a fine reputation as fair-minded, principled and committed to openness, not least in her role as African Union Special Rapporteur on Freedom of Expression.
Yet, recent allegations against IEC officials have also caused concern. Not too long ago in the contested Tlokwe by-election, an IEC official was accused of bias and there have been allegations of vote-rigging. This chips away at the reputation of the IEC, even if a national election is quite different from a local by-election.
Many who have called for Tlakula to step down do so with more than a tremor of trepidation. One need only look to recent history within the Constitutional Court where constitutional principles were upheld and resulted in the appointment of Mogoeng Mogoeng as chief justice, once it was ruled that the president had unlawfully renewed former chief justice Sandile Ngcobo's term.
"Can Tlakula then be trusted to make a fair call should she be under the veil of political protection?"
So, if Tlakula resigned or was forced to do so, unlikely as that might be, the risk is that someone far weaker and far more compromised could take the helm at the IEC.
Can South Africa afford to take that risk? Perhaps it is better to stick with Tlakula on the basis that even though her breach of ethics is serious, no one is actually suggesting that she would be overtly biased in her oversight of the electoral process.
Yet, an alternative scenario is perhaps too uncongenial to contemplate: that Tlakula is provided de facto political protection, that the ANC in government turns a blind eye, stymies any action to deal with this matter before the elections, and so Tlakula herself understands that she is beholden to the dominant political master.
Fast forward then to the elections and possible close calls between the ANC, Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) in, say, Gauteng, where the IEC's credibility will be immediately under scrutiny - and suddenly independence and the perception of it becomes crucial to the political moment.
Can Tlakula then be trusted to make a fair call should she be under the veil of political protection? Neither scenario is ideal, and really one wants to rage against Tlakula's folly in not staying well away from a conflict of interest.
However, by failing to deal with this openly and decisively, and thereby allowing the perception of it to sully her good name, puts us all in a very delicate and awkward situation.
- Judith February, Senior Researcher, Governance, Crime and Justice division, ISS Pretoria