There could not have been a more opportune time for the presidency to release President Jacob Zuma’s letter to Public Protector Thuli Madonsela than last Thursday afternoon. The presidency simultaneously released the long-awaited report of the Special Investigating Unit (SIU) on the upgrades at his Nkandla residence. At the time, South Africa and large parts of the globe were hooked into the happenings in the North Gauteng High Court where Judge Thokozile Masipa was delivering her dramatic verdict in the Oscar Pistorius trial, clearing him of murdering Reeva Steenkamp.
On any other day, Zuma’s letter to Madonsela, together with the SIU report, would have been the lead story on that evening’s bulletins and would have led the next morning’s newspapers. But there was only one show in town that day as it became evident that, contrary to popular expectation, Pistorius would be convicted of culpable homicide and not murder.
The letter to Madonsela was in response to a letter she had written to Zuma last month pointing out that her reports can only be reviewed by a court of law. This was after he submitted a response to Parliament on her Nkandla report, which in effect disregarded her recommendations and proposed an alternate course of action. Madonsela had recommended, among other things, that Zuma reimburse the state for a percentage of the upgrades at Nkandla that were unrelated to security. This included a cattle kraal, chicken run and swimming pool, which would benefit the Zuma family in perpetuity.
In Zuma’s report to Parliament, he tasked the Police Minister Nathi Nhleko with deciding whether he should pay back any money. Madonsela took issue with this, saying the minister did not have the powers to do so.
In his letter on Thursday, responding to Madonsela, Zuma said he could not give blanket acceptance of her reports as she was not a judge. “The role of the Public Protector is akin to that of an ombudsman and quite distinct from that of the judge,” Zuma wrote. “Similarly, reports emanating from a Public Protector process are not judgments to be followed under pain of a contempt order, but rather, useful tools in assisting democracy in a co-operative manner, sometimes rather forcefully.”
This could have been an interesting academic debate between the president and the Public Protector had the underlying issue not been the state-funded upgrades at Zuma’s private residence. As it is though, Madonsela found in her Nkandla investigation that the president had breached the Executive Ethics Code and benefitted unfairly from the upgrades. The debate over her powers is therefore not abstract but to do with him and whether he pays back the state as well as defining the future treatment of the Public Protector by the Executive.
It is clear from Zuma’s letter that his strategy is to go toe-to-toe with Madonsela by, among other things, taking her on regarding her interpretation of her powers. As Zuma does that, there appears to be a growing onslaught on Madonsela from the ANC to wear her down.
Madonsela is taking strain, that much is quite obvious. In a media briefing last month, she vowed to continue doing her job despite all the attacks on her. But she also did something she rarely does, which was to make reference to her political background to show how disheartened she was at those who speak now for the organisation she was part of.
“I have served the ANC, I have taken [up] arms under the ANC. A lot of the people who are insulting me, some of them are old enough to have been in the trenches with me, but they were not there when it was tough. I am not fazed by these people because, when there were no benefits of being in the struggle, they were not there.”
These comments have now been taken up by Deputy Defence Minister Kebby Maphatsoe, who launched a bizarre attack on Madonsela and has continued to vacillate between withdrawing his comments and then repeating them. Maphatsoe, also the chairperson of the Umkhonto we Sizwe Military Veterans Association (MKMVA), initially suggested that Madonsela was working for the US Central Intelligence Agency (CIA) in order to destabilise the ANC government. He also latched on to her comments about being in the “trenches” and taking up “arms” for the ANC and declared that Madonsela had never served in the ANC military wing Umkhonto we Sizwe.
Maphatsoe knows quite well that the entire liberation struggle was not fought through the ANC’s military action and that people fought on several fronts in the name of the ANC. Many of the ANC’s leaders in exile or leading civil disobedience campaigns within the country were not literally in the “trenches” fighting under the banner of MK. Neither were people in academia or those campaigning around the world for Apartheid South Africa’s international isolation.
The terms “trenches” and “taking up arms” is common parlance to describe people’s involvement in the liberation struggle. Therefore for Maphatsoe to go out and announce that Madonsela was never a member of MK was disingenuous.
The CIA comment is to play into efforts by some in the ANC leadership to project Madonsela as being unpatriotic because of her determination to hold the party’s big guns accountable. Though Maphatsoe was told by ANC officials to withdraw his comments about Madonsela, in light of the fact that they constitute contempt of a Chapter Nine institution, he has continued to justify and repeat his remarks.
The SABC reported on Sunday that MKMVA is now singing anti-Public Protector songs at their meetings. In an interview with the public broadcaster on Sunday, Maphatsoe repeated his argument that the CIA wanted their own “CEO in South Africa” and had even infiltrated Chapter 9 institutions. He again said Madonsela should confess who her “handler” is.
What this shows is that despite the ANC officials advising Maphatsoe to tone down his attacks on Madonsela, he has not been called off her altogether. There is clearly talk in ANC circles that the pressure needs to be kept on Madonsela as her work continues to expose the deterioration in the leadership of the ANC.
Madonsela’s office was also hit by the resignations of the chief executive and chief financial officers. The Public Protector’s Western Cape provincial representative also resigned, creating the impression that people are taking fright from the heat on her office. While the resignations may have been unrelated to the political attacks, there are members of staff in the office of the Public Protector who come from ANC backgrounds and are coming under pressure to distance themselves from Madosnela’s actions and show her to be overstepping the mark.
With there still being two years before Madonsela’s term expires, some members of staff are worried about whether they would be able to last out the continuous onslaught. Madonsela can do little to reassure them, as she has no idea what is coming next.
Last week, the presidency also released the SIU report on the Nkandla upgrades, which like with the government inter-ministerial report will be used to dilute the findings of the Public Protector’s report in political circles. The SIU report now places the blame for the upgrades on 15 public works officials, including three previous directors-general. The SIU is also pursuing a R155 million civil claim against Zuma’s Nkandla architect Minenhle Makhanya.
The work of the SIU will be used to show that decisive action is being taken for the exorbitant expenditure at Nkandla and that Madonsela is being petty by trying to insist that Zuma pay back the money for upgrades he allegedly did not ask for.
All the investigation reports on Nkandla are now before the ad hoc committee in Parliament, which will have to consider the appropriate action on the matter. Opposition parties want to call both Madonsela and Zuma before them to explain their side of things, while the ANC will look to protect the president from interrogation and penalties.
Because the ANC has the majority in Parliament, they can possibly manage to keep the heat off Zuma. But the big problem for the president and the ANC is that Madonsela refuses to back down and will probably reignite public anger over Nkandla once she does appear before the ad hoc committee. The mission therefore continues to keep piling the pressure on her. Madonsela has so far refused to be cowed into submission, but the unprecedented number of attacks on her might just take its toll.
She has won the support of many ordinary South Africans and civil society leaders, and says continuously that she is encouraged by this. But now that strain is coming from even inside her office, it may be difficult for Madonsela to stick it out.
The real test is if another big scandal breaks which requires her to take on senior people in government, and fresh attacks come at her. It might be too much to bear, even for the up to now indomitable Public Protector.
But ultimately this is not a clash of two big personalities or a showdown over who holds more power. It is about the contrasting visions of a future South Africa – one dominated by the big man syndrome and the other by adherence to constitutionality, rationality and the rule of law. Right now it is not clear which will triumph. DM
Photo: ANC Victory Rally, 10 May 2014 (Greg Nicolson)
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