Who protects our protector?

Parliament is presented with another constitutional test following Public Protector Thuli Madonsela’s finding of maladministration and unlawful conduct in the police force’s leasing of buildings.

But instead of decisive action, we have seen prevarication since the release of her “Against the Rules” report in February about irregularities in the leasing of a building in Pretoria. Ditto “Against the Rules Too”, released this month, examining the police’s leasing of a building in Durban.

Indications are that the prevarication is due to a combination of two things. On the one hand, there is confusion over the mandates of the different government arms in a case like this and, on the other, there was an attempt to win time to find a backroom solution to an ongoing constitutional crisis.

Lest we forget: the attempts at intimidating Madonsela into silence fit into a pattern that started in the late 1990s when the Special Investigating Unit (SIU) and Parliament’s Standing Committee on Public Accounts (Scopa) were both blocked from investigating the infamous arms deal.

The ANC replaced the people pursuing the mandates of the SIU and Scopa with loyalists who would do their bidding; that is, thwart any possibility of proper investigation. They were seemingly mistaken in their appointment of Willie Hofmeyr as SIU head.

Such interventions have been repeated with the Scorpions and with former National Director of Public Prosecutions Vusi Pikoli. Note that the Scorpions’ replacement unit, the Hawks, was involved in the latest attempt to intimidate Madonsela with a media leak of her “imminent” arrest that then turned out to be a “mix-up”. Pikoli’s replacement, Menzi Simelane, has been implicated in the bogus corruption accusations against Madonsela and the moves to purge Hofmeyr.

Interfering with the Public Protector’s office has, until now, been unnecessary as former incumbent Lawrence Mushwana did not use the full extent of the office’s powers of investigation when confronted with allegations about high-profile politicians.

The Supreme Court of Appeal recently confirmed this with its finding that Mushwana failed to investigate the “Oilgate” case, in which state money was allegedly routed from PetroSA to the ANC.

Therefore, a Public Protector that fully implements the institution’s constitutional mandate does indeed represent uncharted waters to the current rulers. Which would explain why government spokesman Jimmy Manyi has sounded his displeasure at Madonsela throwing the cabinet’s “road map” for the management of her findings into “turmoil”.

This road map seemingly involved some backroom activity. Justice Minister Jeff Radebe had reportedly struck a deal with Madonsela not to release the second report but to hand it to cabinet, which would then make public the report with its own recommendations.

It would fly in the face of the Public Protector’s constitutionally guaranteed independence to release its reports via the executive.

This is especially true if we remind ourselves what the Supreme Court of Appeal said in its finding about the Oilgate case: “The function of the Public Protector is as much about public confidence that the truth (about malfeasance or impropriety in public life) has been discovered as it is about discovering the truth.”

Inspiring public confidence is impossible without transparency. To Madonsela’s credit, and Manyi’s chagrin, she resisted the executive’s attempt at meddling.

Which is where Parliament comes in. Its duty in this case would be, first and foremost, to oversee the executive’s implementation of the Public Protector’s recommendations for remedial action.

Concerning police attempts to cow Madonsela into silence, the constitution instructs organs of state to “assist and protect” the Public Protector to ensure its “independence, impartiality, dignity and effectiveness”.

To the credit of Max Sisulu, Speaker of the National Assembly, his office released a statement confirming that the Public Protector “enjoys the full confidence of Parliament” three days after the media leak that Madonsela was to be arrested. Sisulu also met with Police Minister Nathi Mthethwa and, at her request, with Madonsela.

A resounding silence has nevertheless emanated from the parliamentary portfolio committees concerned with justice, police and public works. The police committee, especially, should be applying its collective mind to the police’s transparent attempts at intimidation. These and other actions suggest that the police are increasingly becoming a law unto themselves.

Unfortunately, the treatment that some ANC MPs in the justice committee meted out to Madonsela after the police’s first attempt at intimidation in March serves as a disquieting harbinger of things to come.

Some MPs questioned the seriousness of the incident in mocking tones, as if Madonsela was making a big deal out of nothing. The unexpected arrival of police officers demanding documents from an independent institution tasked with the protection of the public interest is nothing compared to what people experienced from the apartheid regime, one MP even suggested.

If the oppressive apartheid regime becomes the standard by which we measure the conduct of security officials today, we will obviously merely repeat what has passed before.

A new standard is in place, namely that of the constitution. MPs are duty-bound to heed its principles.

Parliamentarians should remind themselves that the Public Protector acts as a defence against corruption and malfeasance in public office that could “insidiously destroy the nation”, as the Supreme Court of Appeal put it. It added: “If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.”

l Christi van der Westhuizen is a journalist and an author. This monthly column series is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.