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What is the next step after the public protector’s report on the IEC chairwoman’s ‘irregular conduct’, asks Craig Dodds
They’re two of the most respected officials in the country, defenders of justice and democratic order and, until recently, were reported to be good friends.
On the greasy swell of political contest and corruption, all eyes turned to them for reassurance.
Yet Thuli Madonsela, the public protector, and Pansy Tlakula, the chairwoman of the Independent Electoral Commission (IEC), now find themselves locked in a battle that may destroy one of them, or damage them both.
Everything hinges on a committee of Parliament established to “consider and report” on Madonsela’s recommendations following an investigation into the IEC’s move to a new HQ, which, the public protector found, followed a “grossly irregular” procurement process steered by Tlakula.
The IEC chairwoman also had an “undisclosed and unmanaged” conflict of interest in that her business partner in another firm was the chairman of a different company with a stake in the lease for the new head office.
Tlakula has denied there was any conflict of interest on the grounds that she didn’t benefit financially from the deal.
But, Madonsela says in her report, Tlakula, an advocate, should have known better: a conflict of interest is anything that may sway one’s judgement.
The stakes could not be higher.
Tlakula had been expected to steer the country in a few months’ time through probably its most contested poll since democracy.
Madonsela, meanwhile, is on the brink of releasing the potentially explosive findings of her investigation into the R206 million upgrade of President Jacob Zuma’s Nkandla residence.
Beyond that, the Office of the Public Protector, under Madonsela, and the IEC have, until now, been two bulwarks of the constitutional order seemingly unaffected by political interference and the malignant reach of corruption.
That they should remain independent and untainted is critical to citizens’ continued, if fraying, faith in the system.
Now Parliament, through the ad hoc committee, has the prickly task of trying to restore the integrity of the IEC, without infringing on the independence of the commission or the public protector.
How it should do so is uncharted, disputed territory and, in light of the imminent release of the Nkandla report and its sometimes testy relationship with Madonsela – amid whispers the ANC will seek to discredit the public protector in the process – Parliament will have to tread carefully.
Yet it must hurry.
The IEC has been rocked by the findings, not only on Tlakula, but also that senior officials, including the chief electoral officer, Mosotho Moepya, failed to co-operate fully with the investigation.
“These events have left the electoral commission in a fair degree of uncertainty and stress and I would urge that, while we are careful in what we do, we do it as quickly as possible to give certainty because of the imminence of the election,” said DA MP James Selfe at a meeting of the committee this week, where it was decided to seek legal advice on its powers and mandate.
Madonsela had asked the Speaker of Parliament, Max Sisulu, to “consider referring the matter” to the electoral court, which has the power to recommend actions to be taken against IEC commissioners, including their removal.
But the National Assembly adopted a resolution to establish a committee which would “consider and report” on Madonsela’s recommendations and consider her request that the report be referred to the electoral court – wording which opened the door to a possible parliamentary inquiry which would interrogate Madonsela’s findings and even amend them.
MPs on the committee were torn over the question of whether it was within their powers to review the findings of the public protector, potentially interfering with the work of a “Chapter Nine” institution that is guaranteed independence under the constitution.
Constitutional law professor Pierre de Vos says Parliament has no such powers.
“As I understand it, the public protector’s report can be reviewed by a court of law. So if the decision is irrational or whatever, the court can set aside a decision.
“Until such time, that report will stand.
“Parliament doesn’t have the power to review and change the findings of the public protector,” he said.
Equally, calling witnesses to try to get to the bottom of the procurement process for its new headquarters would infringe on !the independence of the IEC.
While Parliament had the power to remove a commissioner, it could do so only on the recommendation of the electoral court, which was best-placed to interrogate Madonsela’s report and determine what steps were appropriate.
It would be “premature” for the committee to engage with the contents of the report, De Vos said.
Only if the court found there had been misconduct that should result in Tlakula’s removal could Parliament consider the evidence placed before it by the court in support of such a recommendation.
“It is explicitly done in that way to protect the independence of the electoral commission.”
In the meantime, any inquiry conducted by the committee would be “completely irrelevant”.
“Because why would they do that?
“The only reason they would do that is if they want to determine whether the chairperson needs to be removed from office, whether there was indeed misconduct, incompetence or incapacity.
“That they can only do once the referral from the court happens.”
While the Public Protector Act allowed Parliament to “discuss” any of Madonsela’s investigations, it could not do so in a way that interfered with, or even gave the impression of interfering with, her independence.
“The thing that maybe is being forgotten is what the Constitutional Court has said about the independence of these bodies, and that they are not like a normal state functionary, you know, it’s not like a municipality or PetroSA.
“They are independent bodies.”
It was a “precarious relationship” in which they were accountable to Parliament, yet it could not be seen to be meddling in their internal affairs.
What happens next will depend on the legal opinion the committee has requested, which it expects to receive next week.
But it has already resolved to ask for a written response from Tlakula to the findings contained in the report.
Given that she has been limited thus far to railing against the findings in the media, this could be her chance to hit back.