The Electoral Commission, an independent Chapter 9 institution created by the Constitution to deliver free and fair elections, is required to be impartial and to exercise its powers and perform its functions without fear, favour or prejudice. It is imperative that the Commission remains an institution trusted by all South Africans. The adverse findings of the Public Protector against the Chairperson of the Commission – the highly respected Advocate Pansy Tlakula – cast a shadow over the Commission; it needs to act swiftly to restore confidence in its work.
Imagine I am the chair of the committee tasked with making recommendations about the appointment of a new Professor to the Law Faculty. Imagine further that I used to have an intimate relationship with one of the applicants for the post. The relationship ended badly when I caught the person in bed having sex with my best friend. Imagine, further, for the moment that I valued monogamy in a relationship and that I was thus embittered by the breakup. I have no financial interest in the appointment of a new professor, but I have (or will be perceived to have) a direct emotional interest in the outcome of the process.
The proper course of action would obviously be to declare my conflict of interest and to recuse myself from the panel making a recommendation to the Vice Chancellor on whom to appoint. If I failed to recuse myself and my ex-lover was not appointed, the appointments process would not have been fair.
The Chair of the Electoral Commission, Advocate Pansy Tlakula, has a different view about what constitutes a conflict of interest. Tlakula (at the time the Chief Electoral Officer of the Commission) chaired an executive committee meeting of the Commission that scored and made recommendations to the Commission about the leasing of new premises. She had no financial interest in the company who was awarded the lease.
However, Adv. Tlakula is a business partner of a Member of Parliament, Thaba Mufamadi. (The question of whether a senior member of the IEC should ever have a business relationship with a Member of Parliament was not raised and the Public Protector did not comment on this aspect.) Mufamadi is also Chairman of Manaka Property Investments, the BEE partner and holder of a 20% stake in the company who was awarded the lease contract with the IEC.
By her own admission, Adv. Tlakula issued a directive for the procurement process to be handled by Executive Committee of the IEC (chaired by herself) to the exclusion of the procurement committee in violation of her own Commission’s Procurement Policy and Procedures. There was no separation of roles and responsibilities between the various committees within the Commission that are tasked with administration of the procurement process – the bid specification, bid evaluation and bid adjudication committees. The Public Protector found that this was irregular and in contravention of the IEC’s procurement policies.
The Public Protector also found that there was no way in which Adv. Tlakula could not have been aware of this fact that her business partner had a stake in the company who successfully bid for the lease. The involvement of Mr. Mufamadi was clearly stated in the bid documents, so anyone who had read the documents would have known that the company in which he had a stake was a bidder.
The Public Protector therefore concluded that Adv. Tlakula had an undisclosed conflict of interest. She had an obligation to declare the relationship and to recuse herself from the procurement process. This she did not do. Not only that, she has not accepted the fact that there was a conflict of interest at all.
The finding that there was a clear and unacceptable conflict of interest was based, first, on section 217(1) which requires any procurement process to be “fair, equitable, transparent, competitive and cost-effective” (which is mirrored by Treasury Regulation 16A 3.2). Second, it was based on the IEC’s own Procurement Policy and Procedures, which state that:
“where a possible conflict of interest arises or where an employee has or obtains a financial or other interest in a company or firm with which the Electoral Commission enters into a business transaction, or where an interest is such that it may influence the outcome of any decision or benefit any person or company or firm, the interest must be disclosed in writing to the Electoral Commission as soon as it arises, and the employee must refrain from participating in any way in related business dealings.”
Adv. Tlakula, through her legal representative, advanced a remarkable proposition in support of her contention that the IEC policy only required her to declare a financial conflict of interests. She said the Public Protector “appeared to confuse the legal concepts of ‘bias’, ‘recusal’ and ‘conflict of interest’”. She believed that a conflict of interest does not arise out of perceptions but a matter of fact.
In other words, she contended that there was no conflict of interest just because she had a personal relationship with one of the bidding parties. Even though such a close relationship would – in other legal contexts – invalidate a decision on the basis of bias or perceived bias, the bias or perceived bias in her case was irrelevant – as long as she had no direct financial interest in the outcome of the decision.
Arguably the most troubling aspect of the sad and unsavoury saga is that the head of the Electoral Commission did not want to admit that there was a clear conflict of interest because she (who chaired the committee which evaluated and made recommendations about the tender) had a close relationship with someone who had a stake in its outcome. This unfortunately cast doubt on the judgment of the head of the Electoral Commission. If she had admitted that there was a problem and that she clearly made a mistake, the Report might have been less damaging to the perceived integrity of the Commission.
After all, there is no evidence that Tlakula benefited financially from the deal. And the lease – although quite steep with more than R100 million having been spent on it since it was concluded in 2010 – was marginally cheaper than the original lease which was cancelled by Tlakula.
The Report of the Public Protector is important because it affirms that conflicts of interest are not necessarily confined to interests in contracts or direct financial interests. It also affirms the common sense principle that when you have a relationship with one of the bidders that would create even suspicions of bias on your part, you have a constitutional duty to recuse yourself from the process. The fact that Adv. Tlakula refuses to accept this obvious point is worrying and sadly casts doubt on her judgment.
The Public Protector recommended that the speaker of Parliament, in consultation with the Electoral Commission to the exclusion of the Chairperson, “consider whether action should be taken against Adv. Tlakula for her role in the procurement” scandal.
The question that now arises is what the speaker and the other Commissioners can do to protect the integrity of the Electoral Commission. The Electoral Commission Act is a rather unique piece of legislation – its provisions confirm that the legislature deems its integrity and independence as absolutely pivotal to our democracy.
That is why the provisions dealing with the appointment of the Electoral Commission in the Electoral Commission Act provides for a relatively non-political appointments process.
Unlike other chapter 9 institutions, the Commissioners of the Electoral Commission are not appointed in a purely political Parliamentary process. The members of the Commission are appointed by the president on the recommendations of a committee of the National Assembly, proportionally composed of members of all parties represented in that Assembly.
However, this committee of the National Assembly does not have a wide discretion to appoint whomever they wish. They have to appoint the five Commissioners from a list of no less than eight recommended candidates submitted to the committee by the panel of experts. This panel of experts consists of:
The Act therefore provides for an appointments process that drastically limits the powers of the majority party in Parliament to select the Commissioners.
Because of the unique position of the Electoral Commission, the Act rightly safeguards Commissioners against political interference by limiting the possibility for the dismissal of Commissioners.
Section 7(3) of the Electoral Commission Act does provides for the removal of a member of the Commission by the president, but only on the grounds of “misconduct, incapacity or incompetence… after a finding to that effect by a committee of the National Assembly upon the recommendation of the Electoral Court; and the adoption by a majority of the members of that Assembly of a resolution, calling for that commissioner’s removal from office”.
This means that a Commissioner cannot be removed from office unless the Electoral Court has made an objective factual finding that the Commissioner is guilty of misconduct, incapacity or incompetence. When the speaker and the other Commissioners consider the recommendations of the Public Protectors Report, they will have to decide what would be in the best interest of the Commission and what action would cause the least damage to the credibility of the Commission.
If they opt for a drawn-out process with a view of removing Adv. Tlakula it could tarnish the image of the Commission. If they take no action, some sectors of society will pounce on this as “proof” that the Commission is not impartial and is not serious about maladministration. The conspiracy theorists and sore losers of elections will have a tangible target for their unhappiness and this will be bad for the Commission and for our democracy.
I would think that whatever the personal feelings of Adv. Tlakula, no matter the legal niceties of the case and no matter whether a non-financial conflict of interest should be viewed in a more or less serious light, it would probably be in the best interest of the Commission if she resigned. Sometimes the hardest thing to do is also the wisest and in the best interest of our democracy. DM
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.