Mungo Soggot
ASecond Look
A few weeks before the election, a foreign diplomat said that as far as his government was concerned, the litmus test of the Thabo Mbeki era was going to be what happened to the then Cabinet’s non-performers. The diplomat mentioned only two names – Penuell Maduna, whom he believed had had a sufficiently troubled time in minerals and energy not to deserve any place in the new Cabinet, and Stella Sigcau, whom the diplomat’s political masters believed had to be removed from the key privatisation portfolio.
The diplomat had his way with Sigcau. But, like nearly everyone else, it would not have crossed his mind that Maduna would be promoted to minister of justice and constitutional development.
Thanks to Mbeki’s decision to keep his finance and trade ministers where they were, and to put Kader Asmal in education, Maduna’s promotion has attracted little criticism. Commentators have mentioned his weak performance in minerals and energy, but have hastened to add that Maduna’s legal background equips him well for his new job.
There is every chance that as a highly qualified lawyer Maduna will acquit himself better than he did in the arcane fields of minerals and energy.
Had Maduna been made justice minister in 1994, he would probably have been welcomed because of his solid reputation in legal circles. Lawyers who worked with Maduna before he went into government remember an earnest, humble colleague. “He was not a great lawyer, but he was open about dealing with things. He was not dogmatic. He put lots of energy into working out how things should be,” one constitutional lawyer recalls.
Five years later, Maduna has arguably lost some of the attributes – most notably humility – that made him popular. The scandals he has either triggered or allowed to mushroom could alone disqualify him from ministerial office.
But apart from generating headlines, these incidents have consistently exposed a failure to take on board the fundamental tenets of ministerial office – the need to be accountable and the need to take counsel from able advisers.
The scandal involving Emanuel Shaw II, the Liberian politician who insinuated himself to the top of the oil industry, is a good start. Maduna was warned by his special adviser, Thulani Gcabashe, about Shaw’s appointment at the Central Energy Fund (CEF) a month before it became public in November 1997.
Five months later, after the damaging scandal had escalated considerably, Maduna fired Gcabashe. He ignored the recommendations of the inquiry he had appointed into Shaw’s appointment. The inquiry, headed by his acting director general, recommended axing both Shaw and CEF chief Don Mkhwanazi, who eventually resigned. Maduna also ignored the advice of his deputy director general on the Shaw affair. He never hinted at the possibility of quitting himself, but instead defended Shaw to the end – after it was clear that even by Liberian standards, Shaw was a kleptocrat of unusually high standing.
The other saga to have plagued Maduna – his fight with Auditor General Henri Kluever – has also demonstrated an unwillingness to grasp the nettle of ministerial responsibility.
In a fit of pique in Parliament, Maduna accused Kluever of conspiring to steal R170- million from the state oil company. During his tirade, Maduna also said memorably that he could not give a “tinker’s cuss” what this newspaper wrote about him. The National Assembly deemed the accusations sufficiently serious to warrant investigation by Public Protector Selby Baqwa.
But shortly after Baqwa’s probe began, Maduna’s senior counsel conceded his client’s R170-million allegation was groundless. The minister could have resigned over that alone, but instead claimed there were other problems with the oil accounts that merited investigation. These have yet to surface. Kluever has made noises about suing, but will presumably only decide after watching his senior counsel’s cross examination of Maduna in two weeks’ time.
The new justice minister will be the first witness to take the stand when Baqwa’s inquiry resumes in July. There are rumours he has some new cards up his sleeve, which will compensate for his embarrassment over the R170-million. So far the Baqwa inquiry has yielded nothing – and cost almost R30- million.
It already appears Maduna is being given the benefit of the doubt in many of the legal quarters over which he will preside.
Mafika Sihlali, a partner at the Johannesburg law firm of Maserumele & Partners who graduated with Maduna, says the minister’s most obvious traits are that he is a “loud mouth with a flair for the dramatic”. Sihlali says he is “cautiously optimistic” about the appointment. “He was thrown in at the deep end in minerals and energy. Now he will be dealing with something closer to his heart.”
Shadrack Gutto, a professor of law at the Centre for Applied Legal Studies, thinks Maduna’s true achievements have been obscured by the scandals and expects Maduna’s arrival in justice will be welcomed in legal academic circles. He adds that Maduna could get a cooler reception from the judiciary and from legal practitioners. “In private legal practice there will be mixed reactions, and in the judiciary it will be lukewarm.”
Maduna could well show that his previous indiscretions stemmed from inexperience and from frustration with a job that did not grab him. But for the moment, his promotion to the frontline of the battle against crime serves to exemplify the suspicion that Mbeki could not give a “tinker’s cuss” about public perception of his ministers.