Thuli Madonsela ended her tenure as South Africa’s public protector with a resounding parting shot: a report titled State of Capture.
It details how a coterie of kindred affinities is positioned to profit from the state. President Jacob Zuma is presented as being at the centre of the rot. The report’s findings are largely expressed in the language of possibilities – what are adeptly called observations. This, coupled with the admission that the investigation could not be “executed fully” because of resource constraints, sets the scene for contestation.
A particular bone of contention will be Madonsela’s recommendation that a commission of inquiry, chaired by a judge, should be established to investigate the issue of state capture.
There are also a number of important points to reflect on when considering the political implications of Madonsela’s report and Zuma’s fate.
Commissions and completeness
The power to institute a commission of inquiry resides with the president. However, in this case, the president is the subject of the inquiry. The chief justice is brought in and identifies a judge who can preside over the inquiry, to be assigned “the power to appoint his/her own staff”.
This is a stroke of genius intended to manage conflict of interest. The law is not clear in a situation where the sitting president is the subject of the inquiry of the commission he is supposed to institute.
More intriguing is the proposed commission’s mandate to
investigate all the issues using the record of this investigation and the report as a starting point.
Here, Madonsela is prescribing that the commission should attend to matters she could not cover fully with the state’s parsimonious allocations. But doesn’t this suggest the report is not complete? It appears not, as her observations are subjects for further consideration by the commission. The report is, however, final. Isn’t this a contradiction? Not necessarily. The report is final, but not complete.
That it is final means her successor cannot take over the writing, rewriting or editing of it. Its incompleteness, meanwhile, relates to the inconclusive parts for the commission to consider.
Political implications and Zuma’s fate
The report is damning. It reveals that private interests for selfish ends found expression in the administration of the state. The national executive authority of the republic is implicated. This is scary.
Madonsela’s report has stirred national consciousness. Zuma is swimming against the tide. Is he sinking, or might he still pull the trick of a proverbial cat with nine lives?
Some among the governing ANC leadership are starting to speak out. Its veterans are enraged. Former President Thabo Mbeki has broken his silence on the matter. The powerful Congress of South African Trade Unions has threatened to withdraw its support for the ANC.
The main opposition party, the Democratic Alliance, meanwhile, want Parliament to debate a motion of no confidence in Zuma. Despite some dissent from his own party, it’s unlikely Zuma would fall victim to such a motion: the opposition parties don’t have enough seats to secure its success without mass ANC support. And the ANC in Parliament is the buffer shielding Zuma.
The motion of no confidence is not going to succeed, but Zuma and the ANC are going to be terribly bruised.
There is one option available to Zuma if he wants to directly oppose Madonsela’s report. He could opt to take it on legal review. But this is likely to cause even more than bruising: it may even leave the president and his party bleeding.
The perils of taking report on review
The basis of his argument is likely to be that only the president has the power to institute a commission of inquiry. So, he would argue, Madonsela’s remedial action is at odds with the principle of the separation of powers.
But lurking in this is the question: in a situation where the president is the subject of the inquiry, what ought to happen to obviate conflict of interest?
Is Madonsela’s remedial action (Chief Justice Mogoeng Mogoeng selecting a judge to chair the commission) necessarily against the constitution? Is it true that she usurped the president’s power? In her own words, Madonsela is asking for:
The president to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the chief justice who shall provide one name to the president.
This would not take away the president’s power. The chief justice wouldn’t institute the commission, he’d simply select a judge to preside over a commission that the president is to institute.
The risk for Zuma is that a judicial process may formalise this intervention into a precedent. If it does, his challenge to the report would have underscored once again the important role of the public protector in shaping South Africa’s constitutional democracy.
By heading to the courts to challenge Madonsela’s report, Zuma may fall on his own sword.
Options and lessons
The only option for Zuma is to step down. If he doesn’t, the ANC may be compelled to recall him lest it further loses its grip and sinks with him.
Madonsela’s report has placed the question of ethical leadership and good governance right in the ANC’s historical consciousness. It requires the ANC’s honesty about the quality of the leadership it has deployed in various organs of the state.
Zuma is a manifestation of an ill-fated system of organising the state, specifically as it relates to the powers of the president. American political theorist James Madison’s insight strikes a cord here. He wrote:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.
After all, as Madonsela’s report vividly reminds us, men are not angels.