A new addition to the Communist Manifesto: the right to insult the Public Protector
The leak of details of public protector’s provisional report on the upgrade of President Jacob Zuma’s Nkandla estate has increased the political pressure on Thuli Madonsela. Not only does she have to keep fighting attempts to intimidate her and frustrate the public release of her report, all indications are that government is gearing to challenge her findings and force her to whitewash the final version. Now her biggest detractors, the South African Communist Party (SACP), has weighed in, calling for legislation which currently makes it “unlawful” to insult the public protector or her deputy to be changed. This from the people who brought you the proposal for an “anti-insult law” to protect the president. By RANJENI MUNUSAMY.
The SACP had just over a hundred words in its media statement about its own campaigns to keep the party active in communities. It had about six times that amount of words dedicated to the office of the public protector – which itself says a lot. The party, which held a Central Committee meeting over the weekend, is no fan of Thuli Madonsela. They have previous called her “counter-revolutionary” and said she “behaves as if she is above the law and the Constitution”.
A few weeks ago, the SACP said in a statement that Madonsela’s handling of the Nkandla investigation “leaves much to be desired”.
“The process reflects contaminations by prejudices. This is evident in what clearly appears to be some sort of a politically charged agenda involving possible collaboration with anti-majoritarian liberals, using a report, which is yet to be released, as a platform to ferment negative sentiment against the president and by extension the revolutionary alliance of our people as led organisationally by the African National Congress (ANC) as well as the democratically elected government that it leads,” the SACP said.
“As it happened in the past, this agenda repeatedly comprises the use of the media to streamline and synchronise activities bent against the president, casting aspersions and finding him guilty in the ‘court of public opinion’.”
The SACP said it seemed Madonsela prioritised cases that were likely to “embarrass” the government.
The publishing of details of the public protector’s report on the Nkandla upgrade in the Mail & Guardian on Friday has infuriated the SACP further. The SACP Central Committee said although Madonsela characterised the leak as “unethical and illegal” and disowned the details that were published, there were still “concerning issues”.
“Anything that undermines confidence in the office, or that gives the impression of over-reaching or limelight-seeking will weaken the office and, paradoxically, it will create a smoke-screen behind which those who are corrupt will seek to hide,” the SACP said. "In terms of the Constitution the Pubic [SIC] Protector’s Office must report to Parliament and not, in the first instance, to a sensation-seeking commercial media."
The party called on Madonsela “to deal decisively with a pattern of premature leaking of reports from her office”. Apart from the details of the Nkandla report published in the Mail & Guardian, the Sunday Times ran details of the public protector investigations on the Minister if Agriculture, Forestry and Fisheries Tina Joemat-Pettersson and former Communications Minister Dina Pule. Both these reports are only to be released this week.
“The time has come for an independent investigation into the leaking from the office, and to establish whether all those within the office have the appropriate security clearance,” said the SACP.
The party also said “the Nkandla matter has dragged on for far too long” and called on both the public protector and the Department of Public Works to publically release their reports – “the sooner the better”. Public Works Minister Thulas Nxesi, also the SACP’s deputy national chairman, was sitting alongside the party’s general secretary Blade Nzimande as he read the statement. The irony apparently did not bother them.
“We believe that both reports will come to fundamentally similar findings. Let the truth come out. Those responsible for serious irregularities in this case must be named, shamed and dealt with appropriately,” Nzimande read from the statement.
But the sting was in the tail of the section on the public protector.
“In the light of some of the recent missteps, the new 2014 Parliament might wish to review the Public Protector Act of 1994. Amongst other things Parliament should consider Clause 9 (1) (a) which makes it unlawful to ‘insult the public protector or a deputy public protector’.”
It’s not that the SACP wishes to slaughter Madonsela and mount her head at its headquarters. No, their intentions are simply in line with the communist diktat that all men are created equal.
“While we certainly have no intention of insulting any public protector, past, present, or future, this clause of the Act strikes us as vague, excessive and out of kilter with our Constitution which recognises all South African citizens as equal before the law,” the SACP said.
The opening of the Public Protector Act to amendments, however, might result in an unexpected boon for those who constantly bemoan her powers and independence.
Constitutional law expert Pierre de Vos said in terms of the Constitution and the law, the Chapter Nine institutions are to be treated in a similar way to the judiciary. “The law does not say you cannot criticise decisions of the Chapter Nine institutions, in the same way the law does not say you cannot criticise decisions of the courts. However it is contempt of court to insult judges, and similarly you cannot attack or insult the public protector or delegitimise her decisions,” De Vos said.
“Institutions like the office of the public protector make decisions that will be unpopular in the eyes of those who have power. There will always be the temptation to attack them, denigrate them and try to rob them of their integrity in the eyes of the public,” he said.
The SACP’s argument that the Public Protector Act was “out of kilter” with the Constitution was an “adventurous interpretation”. “I would be astonished if the Constitutional Court agrees with them,” De Vos said. “The Constitutional Court will never say the contempt of court rules are unconstitutional and are unlikely to say so about the independent bodies.”
Although Madonsela’s fierce independence and refusal to kowtow to those in power, have rubbed many in the ANC up the wrong way, the party has never expressed publicly a desire to change the laws governing her office or reducing her independence. ANC secretary general Gwede Mantashe has however questioned her handling of the Nkandla investigation and accused her of bias.
ANC spokesman Keith Khoza says the ANC has not discussed any amendments or policy changes with regard to the office of the public protector.
Asked about the party’s feelings regarding the leak of details of the Nkandla report, Khoza said Madonsela “has not confirmed that the document supposedly leaked is in fact the report”. “We haven’t been convinced that that is the real report,” he said.
With regard to other leaks of Madonsela’s unreleased reports, including those relating to Joemat-Pettersson and Pule, Khoza said: “Until such time that it has been confirmed by the public protector as her reports, it is difficult to speak on this,” Khoza said.
It is not known whether the SACP statements are just bluster designed to scare Madonsela or whether they will lobby with their ally, the ANC, for legislative changes and an investigation into the public protector’s office. Nzimande’s previous proposal for an “anti-insult law” to protect the president against insults gained no traction in the ruling party.
But Madonsela still has three years before her term as public protector ends, and there is no sign that she intends softening her stance in her investigations. What is eventually contained in her Nkandla report might dictate how she and her office are handled by those who wield political power.
And if it is as explosive as reports suggest, there will be more that just a fringe group seeking relevance and affirmation from the president coming after her. The real big guns, who have real power, could start firing at Madonsela any day now. DM
Photo: Blade Nzimande/Thuli Madonsela (DM montage)