South Africa’s leaders are practising a fatal form of saving face: invoke the law in the form that it suits you and ignore it where it does not.
This means finding ways to bypass superior legal entities such as the public protector. It also means a rash of commissions, inquiries and review panels parading as mechanisms of accountability.
That these commissions are usually deeply compromised from the start and inhibited from reaching an objective outcome is par for the course.
The Seriti commission is a case in point.
The South African public has waited 15 years for the leaders behind the arms deal to be asked the difficult questions. We almost had a proper independent judicial inquiry into the matter, thanks to the efforts of campaigner Terry Crawford-Browne.
But in September 2011, before the Constitutional Court could give judgment on the matter, President Jacob Zuma announced the establishment of a weakened commission, which was subsequently plagued with resignations and allegations of compromised integrity.
The past few weeks have finally brought before us the country’s highest leaders in the previous administration. But instead of answers, we had to watch a farce on a grand scale as Judge Willie Seriti seemed bent on protecting former president Thabo Mbeki from answering anything too involved or difficult. Which was not necessary half the time as Mbeki simply did not remember anything.
Likewise with the public protector.
It would be unseemly for the government to simply ignore public protector Thuli Madonsela, that inconvenient thorn in the side of the corrupt. Even if someone as powerful as Number One does not like a recommendation in one of her reports, they must maintain at least the appearance of respecting her directives.
Accordingly, those who do not wish to comply with the public protector have developed a technique to resist her while making all the right noises. Call it a perverse defiance campaign, if you will.
Zuma has done it again this past week when he missed his deadline to respond to the public protector’s report on Nkandla, saying he was still waiting for the Special Investigating Unit (SIU) to wrap up their own investigation into the matter and that he would respond to both at the same time.
The problem with this is that Zuma is equating Madonsela’s office with the SIU. He did the same thing when the report first came out and his government made a big show of comparing it with its own security cluster’s report into the matter – produced by the very ministers and officials who were complicit in the more than R200-million so-called security upgrades to his massive private residence in Nkandla.
Among the report’s findings are that Zuma unduly benefited from the upgrades to his KwaZulu-Natal homestead and that he should pay back a portion of the money. Instead of reporting back on remedial actions within 14 days, as per the report’s recommendations, Zuma has invoked some bizarre excuse that he must wait on all other investigations into the matter, no matter the fact that those involved in these probes report to him, and that these results are uncalled for in the first place if the public protector has already made a finding.
Fact: the public protector’s findings can only be reviewed and set aside by a court of law.
The problem with Zuma’s actions can be seen in the case of Communications Minister Faith Muthambi. She made a big show of respecting the public protector’s findings into the appointment of SABC chief operations officer Hlaudi Motsoeneng.
Motsoeneng was found by Madonsela to have fraudulently presented his qualifications. Madonsela also recommended that he be replaced at the public broadcaster.
Earlier this month, Muthambi told Parliament that the SABC would comply with Madonsela’s report.
“The public protector is a chapter nine institution, and whatever they have recommended has to be complied with. We cannot be seen as an entity that doesn’t comply with the public protector’s recommendations for remedial action,” she said.
She made all the right noises on the matter. And three days later she went ahead and confirmed Motsoeneng’s appointment, with the nonsensical justification that a law firm report has “cleared him of wrongdoing”.
It doesn’t matter that she never named the law firm or that the move was possibly illegal, given that the person previously tipped for the job has an interdict preventing the broadcaster from filling the job.
Muthambi thought she could bypass the recommendations of the public protector by getting an opinion from some anonymous law firm. And then still have the gall to tell us that she was intent on honouring the institution.
Again: the legal way to challenge Madonsela’s findings would be through a court of law.
This is one of the protections our Constitution and laws have put in place precisely to prevent the sort of cherry picking our leaders are known for: find the right legal opinions to support whatever course of action they want to follow.
But it’s time to call such actions what they are: defiant at best, and illegal at worst.