/ 11 October 2013

IEC must act without fear or favour

IEC chairperson Pansy Tlakula must respect the office of the public protector and adhere to its findings to uphold the law.
IEC chairperson Pansy Tlakula must respect the office of the public protector and adhere to its findings to uphold the law. (Lisa Skinner)

Section 181(2) of the Constitution of the Republic of South Africa enjoins the Independent Electoral Commission (IEC) – and all chapter nine constitutional institutions – to act impartially and to exercise their powers and perform their functions without fear, favour or prejudice. The constitutional injunction is clear, and all IEC commissioners are bound to act without fear, favour or prejudice.

To uphold the law, the IEC must respect the office of the public protector and adhere to its findings.

The public protector, Thuli Madonsela, has found serious irregularities in lease agreements made by IEC chairperson Pansy Tlakula and her then deputies to do with the Riverside Office Park. And she found that the chairperson did not declare a conflict of interest. The IEC is taking legal advice, but really there is only one option.

The commission must act as a bulwark of integrity at all times, lest its entire reputation be compromised – with incalculable consequences for democracy in South Africa. It is these questions of the rule of law and of integrity that are at stake in the public domain, and that is why the Mail & Guardian report "Politics muddy IEC's integrity" caused a significant degree of discomfort to me as a commissioner of the IEC.

Surely constitutional office bearers cannot be effectively blackmailed not to act? This cannot possibly be the intention. It is, however, cause for serious concern when statements are attributed to members of political parties who seek to "influence" the IEC as it continues its efforts to uphold standards of integrity in implementing the remedial actions suggested by the public protector. The breaches in the procurement process found by the protector are now receiving formally the attention of the treasury, as required by the protector's report.

The commission has to take supply-chain management breaches seriously. It cannot be appropriate that it is said the IEC is "floundering". Such statements seek to undermine the remedial steps the commission is bound to take.

It is clear from the anonymous quotes in the story that the waters are currently being muddied, with – staggeringly – commissioners being urged not to act in matters of accountability. And this at the same time that political parties are formally engaged in a highly legally problematic and complex parliamentary process to consider the public protector's report in the ad hoc committee seemingly established for this purpose under the formal provisions of the Constitution and the Electoral Commission Act.

It is, therefore, crucial to ensure a laser-like focus on two separate processes of formal accountability in terms of the law. The first is the parliamentary arena, where questions about the conduct of the IEC chairperson will oddly play out seemingly without the involvement of the Electoral Court – a question pending legal advice. Section 7(3) of the Electoral Commission Act says a commissioner can only be removed from office by the president, and on the grounds of misconduct, incapacity or incompetence, after a finding to that effect by a committee of the National Assembly and upon a recommendation of the Electoral Court and the subsequent adoption of a resolution by majority vote.

The public protector has written to the National Assembly referring them to section 20(7) of the Electoral Commission Act, which determines that the Electoral Court may act in questions of misconduct, incapacity or incompetence. The request from the public protector seems clear.

It is clear, too, from section 194(3)(a) of the Constitution that the president can "suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and (b) must remove a person from office upon adoption by the Assembly of a resolution calling for that person's removal". These are the relevant legal provisions.

The second arena is the internal environment of the IEC. In that respect, the public protector's recommendations vis-à-vis senior management and those involved in the procurement of the new office complex were clear: there have to be consequences for the egregious breaches of supply-chain management processes in this procurement, and there must be consequences too for the failure to discharge the responsibility of co-operation with the public protector's probe.

To me, as someone familiar with the core provisions of the Public Finance Management Act and treasury regulations, it is clear that this arena of accountability requires the remedial actions that the IEC is pursuing in consultation with the treasury. It is important to dwell on these two accountability processes to draw distinct lines of responsibility if we as the IEC are to uphold the rule of law and maintain our integrity.

In terms of the removal from office of a commissioner, the Electoral Commission Act and the Constitution create a complex process – for sound reasons. In fact, the committee that reviewed the chapter nine institutions called for even stricter removal procedures and indicated a desire that the removal of a commissioner of the IEC be subject to a 60% majority vote – as is the case with the auditor general and the public protector – and not merely a simple majority vote.

We are charting new constitutional terrain in the current situation. It is understandable that the procedures for the removal of a commissioner are tightly drawn, but they rest on the tacit assumption that IEC commissioners be people of honour and integrity who would resign if found wanting.

Indeed, section 9(2)(a) of the Electoral Commission Act states clearly that no member of the commission may "by his or her membership, association, statement, conduct or in any other manner place in jeopardy his or her perceived independence, or in any other manner harm the credibility, impartiality, independence or integrity of the Commission".

This is not an arena of accountability in which commissioners have a say over one another in terms of the law. This would be a constitutionally undesirable practice. Our personal views as commissioners are not at issue in terms of the removal procedures set up in law. This is how it should be. But it is in the second arena of accountability that the IEC has a legal duty and a constitutional responsibility to act.

The commission received the public protector's report on the Riverside Office Park lease on August 26. Four commissioners have reaffirmed their respect for the office of the public protector and acted with integrity in accepting the findings and undertaking to implement the remedial action contemplated in the report.

As constitutional office bearers, new commissioners harbour strong sentiments about the questions of probity and integrity at issue in this matter. These views find resonance in the position the commission has taken, which is to implement the remedial action recommended by the public protector.

There is no dispute that the Public Finance Management Act and treasury regulations were defied in the procurement of the office complex. Steps have been taken to liaise with the treasury and its chief procurement officer to ascertain the necessary further information that would lead to a forensic investigation, as per the public protector's report.

It is surprising, then, that some without access to the facts emerging as the treasury and the IEC engage with one another are urging the IEC not to act with respect to disciplinary procedures.

It is the flawed procurement process and its aftermath – not politics – that threaten to damage the integrity of the IEC. Politics will only muddy the IEC's integrity if the body and its commissioners are pressed to ignore the findings of a sister chapter nine constitutional institution. This pressure shows a disregard for the rule of law and for constitutional processes of accountability.

The IEC has accepted the public protector's findings. It is implementing the remedial steps contemplated in it. Efforts to distract the IEC from its solemn duty to uphold ethics and integrity in its ranks fundamentally betray the trust of the voters of South Africa.

If constitutional office bearers cannot be trusted to uphold the rule of law and seek accountability for questionable actions in our own ranks, public trust in a proud institution will be compromised. This is the grave danger.

At the same time, if a constitutional institution is subjected to inappropriate forms of political pressure when it is seeking to uphold the recommendations of another core constitutional institution, we are facing problems more severe than the already grave matters of accountability for supply-chain management breaches.

The IEC must act without fear, favour or prejudice – as the Constitution requires of us at all times.

Raenette Taljaard is a commissioner of the IEC. The views expressed here are her own.