Premature reporting may scupper the painstaking work that has been done by the public protector and her team, says Lawson Naidoo.
Johannesburg - In the excitement over the leaked revelations from the provisional reports of the public protector into the Nkandla scandal (as well as the investigations into Dina Pule and Tina Joemat-Pettersson), we should not lose sight of the context in which the publication took place.
We should not allow expediency and the desire to expose wrongdoing at the highest levels of state to trump important principles of constitutional democracy.
The publication of parts of the leaked reports is not an act of defiance of an over-reaching and draconian piece of security legislation, but rather a disregard for an eminently reasonable legislative provision that seeks to protect the integrity of the work of a key institution supporting constitutional democracy.
Section 7 (2) of the Public Protector Act provides that “no person shall disclose to any other person the contents of any document in the possession of a member of the office of the public protector or the record of any evidence given before the public protector… during an investigation”.
It is clearly intended to protect the confidentiality of the public protector’s investigations until a final report is produced.
Moreover, section 8 (2A) (a) requires that any report issued by the public protector shall be open to the public unless exceptional circumstances exist.
In the case of the Nkandla investigation, the public protector has sought and fought to assure the public that the final report will be made public and that its publication will not compromise the security of the president.
Thuli Madonsela has appealed for the Nkandla investigation to be de-politicised so that she can finalise her tasks without hindrance and further unnecessary delay.
The report that has been leaked is a draft provisional one that has been circulated to interested parties for comment.
Its publication now re-politicises the Nkandla investigation and report, and undermines the effectiveness of the legal and constitutional mechanisms.
The premature reporting of some of the provisional findings and recommendations will inevitably take the focus away from the final reports.
It may also scupper the painstaking work that has been done by the public protector and her team over a long period of time.
Those seeking to protect the president and others involved in the Nkandla project will now have the ammunition to derail the real issue of how we bring to account those responsible for any wrongdoing.
They launched scathing attacks on the public protector, tried to stop her investigation and even sought legal recourse.
The public protector survived this concerted campaign, but her work may now be compromised by the leaks.
The leaking and publication of provisional reports also jeopardises the rights of those under investigation; no matter how horrified we are by the looting of state resources for private benefit, we must allow for due process.
The public protector has a duty to consider the representations made by affected parties to the provisional report, and may amend aspects of the final report if persuaded to do so.
The strength of our constitutional order is tested when confronted with issues such as the vast public expenditure on a private residence of the first citizen. It is also an opportunity for those institutions dealing with the matter to demonstrate their effectiveness.
It is surely incumbent on us all to assist in this regard, to strengthen the office of the public protector and ensure that the final report is made public so that we may know how public funds have been spent and those responsible are held accountable under the law.
There are no shortcuts to extracting accountability in a democratic society. The publication of aspects of the provisional reports may serve to erode the authority of the office of the public protector which is a key mechanism to check the abuse of state power.
* Lawson Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution (Casac).
** The views expressed here are not necessarily those of Independent Newspapers.