With the dust barely settled in the wake of Public Protector Thuli Madonsela’s bombshell findings, a storm is already brewing over Parliament’s role in dealing with the issue.
Madonsela this week sharply disagreed with ANC treasurer-general, Mathews Phosa’s assertion that her reports on the SAPS building leases should be debated in Parliament and that it should then recommend to the cabinet on how to proceed.
Phosa said the government could not act like “cowboys” in firing senior government officials; Parliament was “supreme, it represents us”, he said – and should thus have the final say.
At the same time, cabinet spokesman Jimmy Manyi lamented the fact that Madonsela had made her findings public instead of first handing her report to the cabinet. He claimed this had caused prejudice to those implicated – police chief Bheki Cele and Public Works Minister Gwen Mahlangu-Nkabinde.
All this while the official silence on Madonsela’s damning findings rose to a deafening crescendo, with most of the communications efforts apparently directed chiefly at preventing Cele from having his say: his media briefing was first postponed then cancelled, presumably to avoid further political embarrassment.
Madonsela’s stance is that she has discretion in choosing how to present her findings. “The Speaker may request a report for tabling in Parliament, but that does not interfere with the direct implementation of the Public Protector’s findings and points of view on appropriate remedial action”, she has said.
The ANC, however, is likely to argue that there is ample reason for a specially constituted parliamentary committee to consider Madonsela’s findings, and that there is a precedent.
The country’s first Public Protector, Selby Baqwa, found that then Minister of Energy Affairs Penuell Maduna had breached the constitution when he wrongly accused then Auditor-General Henri Kluever in 1997 of covering up a theft of R170 million from the Strategic Fuel Fund.
When Kluever explained the “loss”, noted in the fund’s financial statements, was an accounting technicality, Maduna called his credentials for office into question.
The constitution guarantees the independence and integrity of bodies such as the Officer of the Auditor-General and enjoins organs of state to act in good faith towards each other. Baqwa’s inquiry took more than two years; the legal fees amounted to an estimated R6 million – nearly as much as his annual budget.
Parliament then appointed an ad hoc committee to consider Baqwa’s report, where he came under intense questioning about his findings, mainly from ANC MPs – prompting opposition members to claim the party was trying to divert attention from Maduna’s conduct.
A senior ANC MP on Friday argued that this precedent paved the way for a similar arrangement to deal with Madonsela’s findings.
“Why send something to Parliament if it can’t consider it?” the MP asked, saying it was “established practice” that “the more controversial reports” were debated in committee. The MP pointed out that Madonsela was accountable to Parliament; that while the committee would not “reopen the investigation” into the leases, it could scrutinise the procedure followed by Madonsela and her investigators, and – significantly – could “disagree” with her report.
The MP made a point of noting that the Public Protector – like other chapter 9 bodies, such as the SA Human Rights Commission – was not an “enforcing” body.
Here lies the rub, for while Madonsela may not have the power to enforce her recommendations, it is surely Parliament that should come to her aid in holding the executive accountable and ensuring it takes the necessary action.
Repeated postponements saw the committee that dealt with Baqwa’s findings finally report back a year later. There was to be no disciplinary action against Maduna (who had meanwhile been made justice minister) as he had already been censured by the National Assembly and apologised and withdrawn his remarks back in 1998. The DA and five other opposition parties tried, but failed, to get the house to approve a statement saying the committee’s decision “creates the erroneous impression that Parliament is powerless to do anything and that it cannot do what the Public Protector says it should”.
Whatever the merits of the outcome, whether this procedure sets a precedent for parliament to adopt the same filibustering approach with Madonsela’s findings is surely moot. Baqwa had expressly recommended that parliament sanction Maduna, saying an apology was insufficient, so it was entirely appropriate that a committee consider his report with a view to action.
However, the matter of the police leases – found to be invalid and unlawful by Madonsela – is different.
The remedial action Madonsela has recommended requires action on the part of the executive arm of the government, and not the legislature. She has urged President Jacob Zuma to “do the right thing” and sanction Public Works Minister Gwen Mahlangu-Nkabinde, while Police Minister Nathi Mthethwa has been enjoined to consider steps against police chief General Bheki Cele.
As Parliament is at present in recess, National Assembly Speaker Max Sisulu has yet to decide on what to do with Madonsela’s report, and it is likely there will be high-level consultations on the course to take.
For the governing party, Madonsela represents a loose cannon, likely to set off an unpredictable chain of events that could have far-reaching repercussions for the government and for the trajectory of certain political careers. Like most governments, Zuma’s would be happier if it could control and manage – if not prevent altogether – any painful fall-out.
As its spin-doctors battled to co-ordinate a coherent response this week, Madonsela continued with the relationship building that she has – astutely – engaged in since beginning her seven-year, non-renewable term in October 2009.
Her two-month long “national dialogue” is aimed at deepening awareness of what her office is meant to do and how she interprets her mandate – as well as to make allies along the way.
She is surely going to need them. - Gaye Davis