The least attentive political observer could have predicted that the report by Public Protector Lawrence Mushwana on whether National Director of Public Prosecutions Bulelani Ngcuka abused his power while investigating Deputy President Jacob Zuma would arouse controversy. But no one envisaged the orgy of public mud-slinging that would follow the report’s publication. In an unrestrained outburst, Ngcuka and former justice minister Penuell Maduna accused Mushwana of having “no backbone” and being “a liar” and the report of being “junk” and a “joke”.
This was playing the man, not the ball. What was also striking was that their reaction failed to respond to the report’s specifics — and particularly its criticism of Ngcuka’s refusal to prosecute Zuma while claiming to have a “prima facie” case against him.
Our starting point is simple. We believe Ngcuka has the right to conduct investigations without let or hindrance, and that his office deserves respect. But we believe Mushwana has the same rights.
The often nameless attacks on Ngcuka — including the spy claims — have been inexcusable. The prosecutions system under his leadership has worked pretty well, as shown by the convictions of powerful African National Congress figures such as Tony Yengeni and Winnie Madikizela-Mandela. We are also quite clear that Mushwana’s report in no way removes the corruption cloud hanging over Zuma. There is clear evidence that he had an inappropriate relationship with his “financial adviser”, Schabir Shaik. This will again come under scrutiny when Shaik goes on trial.
At the same time, Ngcuka is not blameless. His and Maduna’s attack on Mushwana could only result in the weakening of the Office of the Public Protector, which the Constitution protects. The rough handling of the protector ran directly counter to the desire of the overwhelming mass of South Africans for the Constitution and the institutions it creates and empowers to be affirmed and upheld.
Part of the problem is the perception on both sides that each is serving someone else’s political agenda. Distrust of Mushwana as a perceived Zuma sympathiser was among the reasons Ngcuka and his lieutenants were reluctant to assist him in his investigation. Ngcuka, similarly, has been accused of acting as a stalking-horse for President Thabo Mbeki in his alleged attempt to keep the presidency out of Zuma’s hands.
To offset the perceptions of political interference, there may be merit to the proposal that an independent panel of experts, along the lines of the Judicial Services Commission, which selects judges, should appoint the leaders of Chapter 9 institutions. At present, the public protector is appointed by the president on the recommendation of Parliament.
And to offset perceptions in some quarters that the Scorpions are insufficiently accountable, there may be an argument for a civilian oversight body, similar to the Independent Complaints Directorate.
But no institutional arrangement will make much difference if respect for our public watchdogs is undermined. This means the watchdogs themselves must be not only scrupulously independent, but also seen to be scrupulously independent. It also means that, in their public discourse, leaders and other opinion-formers should watch their mouths.
A well-intentioned law
One of the unfortunate side-effects of Manto Tshabalala-Msimang’s reappointment as Minister of Health is that well-intentioned government initiatives in the health arena are now viewed with deep scepticism, even derision, by the general public. Queen Manto’s repeated blunders over Aids treatment during her nightmare first term in office have come to taint everything she does.
This is most clearly the case with the controversial regulations under the Medicines and Related Substances Act. As most South Africans would like ludicrously high medicine prices to fall, one would expect the regulations to enjoy public backing. Instead, there is confusion and suspicion.
The idea of a single exit price from drug manufacturers, displayed so that consumers can register the mark-up and take their business elsewhere, is a good one. So, too, is the banning of rebates on the manufacturers’ “Blue Book” prices, which acted as hidden mark-ups and undermined price control. And one cannot dispute the praiseworthy intention behind the licensing of dispensing doctors — it is designed to put an end to kickbacks and other inducements offered by pharmaceutical companies, which often leads to needless, or needlessly expensive, treatment.
Besides Tshabalala-Msimang’s deeply entrenched image as a bungler, and her secretive and often confrontational style, there is deepening disarray in her department. With no director general since last July, and other key posts vacant, the department is in no state to implement complex legislation. Officials apparently lacked the necessary database on doctors and pharmacists to make meaningful licensing decisions.
Muddle and lack of credibility aside, one should not lose sight of the purpose of the new laws — to regulate medicine prices. They may need tweaking, but they deserve public support.