Institute for Security Studies (Tshwane/Pretoria)

20 March 2014

South Africa: Thuli Madonsela - a Triumph for Constitutional Democracy

analysis

Yesterday, all Africans had a reason to be proud of the brave and principled leadership that exists on this continent in the form of South African Public Protector, Thuli Madonsela.

In a sober and considered manner, she read out the findings of the long-awaited Nkandla report - her investigations into the 'unconscionable' amount of R246 million of taxpayers' money spent on upgrades to President Jacob Zuma's private residence to no public benefit.

In spite of attempts by the security ministers to interfere with her investigation and recent attacks on her character by the president's supporters, she was not swayed from her constitutional duty to act in the interest of members of the public.

The slander she experienced was not surprising given how far ethical and accountable governance has deteriorated under the current dispensation. The investigation found that the president breached the executive members' code of ethics, giving licence to the widespread breakdown of adherence to constitutional principles, laws and procedures.

There appears to be a perception that the public protector's sole role is to investigate high-ranking government and political officials. This perception is driven by the unfounded claims that the public protector is driving a political agenda simply because the earliest she could release the Nkandla report - after all the interference - was shortly before the elections.

These claims could not be further from the truth. The Nkandla investigation is only one of thousands of investigations that the office of the public protector conducts each year. Those who accuse her of harbouring some motive to influence the outcome of the 2014 elections have not adduced a shred of evidence to prove this claim.

It is important that the public understands the role of the office of the public protector in South Africa's constitutional democracy. As stated in Chapter 9 of the Constitution, this office is but one of several state institutions that are meant to 'strengthen constitutional democracy in the Republic'. Others include the South African Human Rights Commission and the Independent Electoral Commission (IEC).

Specifically, the public protector has the power to 'investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice'.

All Chapter 9 institutions, as they are called, have a constitutional obligation to carry out their duties in an impartial manner and without 'fear, favour or prejudice'. The Constitution further states that 'no person or organ of state may interfere with the functioning of these institutions'.

The public protector's investigation into the excessive spending on Nkandla has been an important moment in South Africa's constitutional democracy. It sends a clear signal that where there are allegations of impropriety in public administration, all individuals - regardless of political or socio-economic standing - will be investigated. The purpose is to ensure that every endeavour will be made to protect the interests of the public.

The office of the public protector depends on funding that is appropriated via the budget vote of the justice and constitutional development ministry. In his 2013 budget vote speech, Minister of Justice and Consitutional Development, Jeff Radebe, indicated that R199 million would be transferred to the office of the public protector to meet its 2013/2014 needs.

When she appeared before the Portfolio Committee on Justice and Constitutional Development in 2013, Advocate Madonsela noted that inadequate resources posed the biggest challenge facing her office, considering the sheer magnitude of the work she is expected to do. Indeed, the annual amount allocated to this public interest institution is far less than what was spent on Zuma's private homestead.

In the 2012/13 financial year, the public protector received 37 770 cases - an increase of 108% compared to 2010/11. This demonstrates growing public trust.

However, the capacity of the office of public protector has not increased sufficiently to finalise all the cases they receive. In 2012/13 they were able to finalise 22 400 (59%) of the cases received.

According to the Public Protector's Annual Report, their workload is added to by the increasing use of lawyers by government officials - at taxpayers' expense - to respond to queries. This resulted in 'unnecessary delays in the resolution of complaints'.

In the current financial year, her budget was deployed to, among other things, investigate the alleged shortage of workbooks supplied to Eastern Cape schools; allegations of misconduct relating to former Minister of Communications, Dina Pule; allegations of maladministration, governance deficiencies, abuse of power and the irregular appointment of Hlaudi Motsoeneng at the South African Broadcasting Corporation (SABC); and the allegations of corruption and maladministration at the IEC in the procurement of its Riverside head offices.

If it were not for the public protector, much of this breakdown in good governance would remain hidden and would therefore continue.

These are just some of the high-profile cases; there are thousands of other cases concerning fraud and corruption at different tiers of government. Indeed, when unethical government officials are not held accountable for their actions and allowed to siphon public money into their pockets, it is the people of South Africa, particularly the poor, who ultimately suffer.

So, rather than attacking the public protector, honest members of the African National Congress (ANC) should be pushing for her office to be equipped with adequate resources.

In addition, action should be taken against those who fail to cooperate with her investigations. If the ANC is genuinely committed to fighting the scourge of corruption, it should ensure that the recommendations of the public protector are implemented as a matter of priority. It should also rise to defend her office when it is attacked by those whose selfish interests threaten the future of this country.

Hamadziripi Tamukamoyo, Researcher, and Gareth Newham, Head, Governance, Crime and Justice Division, ISS Pretoria

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