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06 Dec 2013 00:00
ANC secretary general Gwede Mantashe called on Thuli Madonsela to release her final report on Nkandla after the Mail & Guardian published a provisional report last week. (Oupa Nkosi)
The publication of the draft Nkandla report was justified – despite the attendant risks
One of the more interesting questions about the leak of public protector Thuli Madonsela’s provisional report on Nkandla is who benefits, and who is harmed.
Evidently, the findings – which may still change after interested parties have made their submissions – have done more damage to the presidency’s position that public money paid only for security arrangements at his Nkandla residence.
The report appeared just as the storm around the security cluster’s ill-conceived attempts to block the report and even images of Nkandla, which drew particular ridicule, was fading. The leaked report returned the issue to the centre of an increasingly outraged public debate.
Any discussion of the rights and wrongs of the decision to publish the leaked report must not lose sight of the central issue, the apparent abuse of public money that it highlights.
However, it is also legitimate to consider unintended effects and collateral damage to others.
There’s the public protector’s office, for one.
Madonsela’s response has been to criticise the publication as unethical and illegal, reflecting her need to protect the integrity of her processes.
However, this should not be overstated: the real source of the pressure on her office is the fact that she is willing to tackle tough issues, even in the highest office in the country.
In the long run, the leak may well provide ammunition to lawyers looking for reasons to challenge findings when they are ultimately finalised. It is worth remembering that the corruption charges against Zuma were withdrawn over arguments that the prosecutorial process had been tainted, and there has been speculation that the leak came from quarters sympathetic to Zuma.
There is a public interest in ensuring the integrity of processes such as those of the public protector. As a society, we need independent institutions of public accountability to work according to predictable rules, in order to ensure public trust. We all suffer when prosecutors bungle a sexual assault case, or when a commission of inquiry falters.
The media, of course, use the term public interest in a particular way, to highlight the enormous social benefit of transparency. The notion that democracies need informed citizens is at the heart of our idea of journalism’s role.
In the case of this Nkandla report, it is a case of weighing up two different kinds of public interest.
The claim of the right and the need for citizens to be fully informed on this issue is very strong indeed. The amount of public money involved, the fact that it implicates the highest office in the country, the statements made to Parliament by Zuma himself, the public mood and interest: these all add up to a story of enormous significance and interest.
An important factor lies in the history of attempts to prevent public knowledge of the affair, from classifying the report of the government’s own task team on the issue, to thinly veiled threats that Madonsela may be accused of breaking the law by releasing the report without security clearance. An affidavit by Police Minister Nathi Mthethwa hinted that more litigation might be in the offing to prevent publication.
"All the evidence points to a systematic attempt by the government to shield disclosures of the scandal from public view", as last week’s editorial noted. There is a positive duty to resist this kind of agenda.
It is also significant that the public protector’s process around her provisional reports has become frayed. Others have leaked, to such an extent that Madonsela this week announced a change to their handling. She argues the leaks come from affected parties, not her office, and she will restrict their access to draft reports to reduce the risk of leaks.
Madonsela has said the law governing her office prohibits publication, but at least one prominent legal expert argues the matter is not quite so clear. Constitutional law expert Pierre de Vos says the context of the provision suggests it refers to evidence, rather than a draft report, and that its very broad reference to "any document" may make it susceptible to legal challenge in any event.
Whatever else comes out of this, it might be useful to look afresh at the way these processes are handled. Greater transparency during the course of an investigation could be built in while still safeguarding the right of people to defend themselves.
A decision like the one to publish the provisional report on Nkandla should not be taken lightly. There’s a great deal to weigh, including a legal provision, risks to important institutions and the possibility of unforeseen consequences.
But in the end, I come down in defence of the paper’s decision. The public interest in knowing the facts is strong enough to justify it.
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