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3 September 2014 01:42 (South Africa)
Opinionista Pierre de Vos

Thuli Madonsela: The difference between 'unpopularity' and 'misconduct'

  • Pierre de Vos
Public Protector Thuli Madonsela has made many enemies since her appointment to her position. Ms. Madonsela seems to believe – perhaps rather naively – that the Constitutional guarantee of independence, requiring her office only to act impartially and “without fear, favour or prejudice”, protects her and the body she leads from the political machinations of the governing elite and from the parasitic business elites whose shenanigans she has worked so tirelessly to uncover. She has not been particularly good at playing the political game and at keeping the powerful and politically connected placated and docile. Will she pay the price for this lack of moral and legal “flexibility”?

If weekend news reports are to be believed, the knives are out for Ms. Madonsela. Her deputy, Mamiki Shai, had allegedly been party to complaints lodged with Parliament about Madonsela. In documents handed to Parliament, members of her staff allege, among other things, that she has been dismissive of criticism, has not followed prescribed procedures and has a "Hollywood" approach to investigations. Shai is not a stranger to controversy and was previously involved in a long-running battle with her previous boss, Lawrence Mushwana.

I am not at all surprised by this turn of events. The lodging of these complaints are about as predictable as an American presidential candidate ending a speech with the words: “God bless America”. Of course, it might well be that Madonsela is not the perfect boss – although I have never worked for Madonsela, so I have no idea whether the “complaints” against her are spurious or not. But even if the allegations are baseless and even if Madonsela is the perfect boss, some people were always going to complain about her because, if the truth be told, she is far too impartial and fearless not to be resented or even hated by some ANC party loyalists inside and outside the office of the Public Protector. 

In a one-party dominant democracy like ours in which the party of government dominates the political and social landscape, independent institutions face immense pressures. Such institutions run the risk of being “captured” by political factions within the ruling party or by members of an increasingly acquisitive and corrupt political and business elite. Even if they are not captured, they will often be staffed by individuals with duel loyalties to both the dominant party and to the institution in which they have to serve without fear, favour or prejudice. Control over independent corruption fighting bodies like the Public Protector is important as it provides factions or groupings with access to state resources with some protection against the consequences of their possible illegal actions. It also prevents major embarrassment to the governing party and protects its image and its legitimacy in the eyes of the voters.

Where independent institutions resist political pressure and refuse to comply with the unwritten rule that loyalty to the party (or to the dominant faction within the party) must sometimes trump loyalty to the Constitution and the country, such institutions may well face attacks from staff whose loyalties to the dominant party cloud their commitment to the law and to their constitutionally mandated duties. 

The head of such an institutions also runs the risk of angering politicians and powerful business elites who might want to correct the “mistake” that was made in appointing the individual. Talk of firing that individual will then gather steam and the smear campaign will begin to destabilise and delegitimise that institution. Former National Prosecuting Authority (NPA) boss, Vusi Pikoli, can testify to this truism.

Whatever the reasons might be for the complaints against Madonsela, I would guess that her position is secure for now. In terms of section 194 of the Constitution the Public Protector may only be removed from office on the ground of misconduct, incapacity or incompetence. The National Assembly will first have to establish that there was indeed misconduct on the part of Madonsela, after which two thirds of its members would have to vote for her removal. 

As the majority party does not currently enjoy a two-thirds majority in the National Assembly and as her firing will be politically hugely unpopular with the media and the chattering classes, it is difficult to see how the ANC would muster enough support to get rid of her. Even the MPs from small parties will think twice before accepting promises of positions and perks in return for their support to oust the Public Protector.

Moreover, if the National Assembly did remove her from office because she has a penchant for “Hollywood-style investigations” or because she has not heeded criticism, such a decision would be reviewable by the judiciary, as these complaints do not establish “misconduct” on her part. At best, it establishes a management style that is not universally popular with staff. 

In any event, I would have thought that a body tasked with rooting out corruption would be lauded for its “Hollywood style of investigation”, because the fear of publicity and exposure can act as a great prophylactic against corruption and maladministration. The more publicity of the investigations of the Public Protector, the better for South Africa – if not for the governing party whose members will disproportionately be implicated in maladministration and corruption due their disproportionate access to power and state resources. There are far more ANC members with access to power and state funds than members of any other party, so statistically a disproportionate number of ANC aligned members will be fingered for corruption and maladministration.

If there are indeed serious problems with the management of the office of the Public Protector, the National Assembly has a duty to assist Madonsela to deal with such problems, while at the same time respecting the independence of her office. This is because the Public Protector is accountable to the National Assembly who can ask the Public Protector to explain her actions to it. This does not mean that the National Assembly can meddle in the investigations of the Public Protector or in the day-to-day running of her office. Neither does it mean that the National Assembly is allowed to pressure Madonsela to show less zeal and commitment in her task of exposing corruption in the lowest and highest offices in the land.

This is because section 181 of the Constitution confirms that organs of state “must assist and protect” the Public Protector “to ensure the independence, impartiality, dignity and effectiveness” of the institution. The section also prohibits any person (including the president, the deputy Public Protector and other staff) or any organ of state (including the National Assembly) from interfering with the functioning of the Protector. The National Assembly can try and assist the Public Protector in dealing with any complaints, but cannot use the complaints as an excuse to launch an attack on the Protector in an attempt to undermine her credibility and authority. That would be unconstitutional and hence unlawful.

Whatever the facts might be, South Africans should be vigilant to ensure that these allegations are not used by corrupt political and business elites as an excuse to get rid of the Public Protector. (And if I were a conspiracy theorist I would be worried that these allegations are surfacing just after the Public Protector agreed to investigate the unlawful spending of more than R240 million on the upgrade of President Zuma’s private home.) 

She might not be perfect (and who is?), but she sure is putting the fear of God into officials and politicians looting state funds. DM

  • Pierre de Vos
Pierre de vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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