Red Alert: The Public Protector

Last week coverage of the Oscar Pistorius trial was momentarily displaced by the public protector's Nkandla report. Let me say up-front I believe advocate Madonsela's marathon media presentation of her report came across as generally thoughtful and appropriately measured. Of course, in the coming weeks details of that report will and must inevitably be debated.

But the core message to be taken away (indeed celebrated) is that in our constitutional democracy no-one is above the law. Or, more accurately (since we're not dealing with a court of law in this case), no-one in public office is above the legitimate scrutiny of the public protector.

Authoritarian regimes are inclined to turn politics and the administration of justice into theatre, reducing the populace into awed spectators. What we had with last week's public protector's report was thankfully something different. It was a case of using a carefully orchestrated live media event to cast light upon (not an aura over) political authority. But are there not, at the same time, some very problematic aspects to this media-reliant stage-managing?

Bear in mind the public protector's legislation calls on the office to report directly to parliament and not particularly second hand, via a media exclusive preview lock-up, a media conference, and much prior leaking and tweeting. Why was the report not tabled first in Parliament? This was not an oversight, as we have since learnt. Madonsela has explicitly said she will not formally table the report to the Speaker, until President Zuma has first provided his responses to the report to Parliament as she has recommended.

But is it not a matter for Parliament to decide who should be called to respond to the report? The office of the president has indicated that it will indeed respond to parliament, but the question is not an academic one. More concerning is the fact that, as reported in the Times (March 27), Madonsela said that "the parliamentary portfolio committee on justice - the oversight committee to which she reports - should not be trusted with protecting her office from political attacks."

This attitude presumably has its origins in a fall-out Madonsela had last year with ALL of the main political parties represented in the portfolio committee on justice. It was not just the ANC, but notably veteran DA MP, Dene Smuts, a staunch constitutionalist, who criticised Madonsela for over-reaching, and seeking to bypass parliament.

Our constitutional institutions should robustly check and balance, but also in terms of the core cooperative governance principle of our Constitution, support and reinforce each other. Just as parliament and executive must respect the office of the public protector, regardless of any personal animosity, so that office should respect other constitutional institutions, not least the one to which, in terms of the Constitution and the Public Protector Act, it reports.

The staging of the event and some of Madonsela's prefatory remarks to the substance of her report had all the hallmarks of an attempt to present the media (not a constitutional but overwhelmingly a commercial set of institutions) as her authoritative ally against the executive, with parliament side-lined. This might play neatly into the neo-liberal narrative of "brave individuals" up against the power of "the state" - in which the moneyed power of the commercial media and its billionaire backers gets elided. But short-circuiting our constitutional dispensation - always in the name of "defending" it, of course, is as Dene Smuts would agree a grave error.

As I said, Madonsela's actual report and most of its findings require serious engagement and not a knee-jerk reaction. However, let's note the slippages between the actual findings in the report, and much of the media narrative woven out of it. In some ways this is inevitable. This is why media coverage of the important Farlam Commission has sadly waned over time.

Judge Farlam's thorough-going investigation into a complex tragedy is never going to be a simple heroes and villains soap opera, notwithstanding Dali Mpofu's showmanship. With the decision to open the Pistorius trial to live broadcasting, celebrity voyeurism (and ensuing media profits) received a new shot in the arm. But has the media-driven sensationalism surrounding the Pistorius case helped or distracted from thoughtfulness about the extraordinarily high levels of violence in our society?

Of course we shouldn't evoke systemic problems to evade questions of individual (celebrity or otherwise) responsibility. But being turned into ogling or baying-for-vengeance spectators by reality TV isn't likely to advance our collective responsibility for building a more just and caring society - which brings me back to the public protector's report.

Most interest in this report obviously has to do with whose particular homestead Nkandla happens to be. That's inevitable. Opposition political parties are seeking (why wouldn't they?) to personalise Nkandla in a narrowly reductive way for electoral purposes. Much media commentary has followed suit, producing a tabloid tale of hero and villain, David and Goliath. However, in the lessons we draw from this sordid episode of maladministration and runaway expenditure, we need also to understand Nkandla as the tip of a massively problematic iceberg, not least in the construction and property sectors. Ignore that and we'll fail to root out the underlying challenges.

Last week's Economist ran a cover story on "crony capitalism", noting a global surge in "rent-seeking" behaviour, the creaming off of super-profits through collusion and corruption. Along with the usual suspects, like arms procurement and casinos, real estate and construction were identified as sectors chronically prone to rent-seeking. In the magazine's 23-country table SA was middle-ranking, neither the best nor the worst - but we do have a major problem.

Last year the Competition Commission uncovered massive collusion in the construction sector, costing the public billions of rands. Since his appointment as minister in late 2011, Thulas Nxesi has instituted a series of investigations into fraud and maladministration in the ailing department of public works. Former acting director general Sam Vukela, mentioned in Madonsela's report, has already been found guilty on other charges and dismissed. A criminal case may follow. The Roux Shabangu matter and others are already being actively pursued in court. The SIU is involved in several investigations, including Nkandla.

More fraudulent leases have been uncovered, including 356 buildings in which the now physically verified floor space is less than reflected in the lease agreements. 112 leased properties are unoccupied. On Nkandla, well ahead of the report's release, DPW had already begun to implement most of Madonsela's remedial recommendations.

What underpins all these problems? It's a toxic mix of private sector corrupters, venal officials, BEE fronting and the misguided neo-liberal restructuring of the state in the mid-1990s. This restructuring replaced scores of sector professionals with generic managers. Like other departments, DPW has been denuded of professional capacity - engineers, architects, quantity surveyors, property evaluators - leaving it highly vulnerable to external and internal manipulation.

As one critical response, a ring-fenced, professionally-staffed, property management entity within the department is now being actively constituted. Whether it's the public protector's office or a line department, we need to professionalise, democratise and consolidate ALL our constitutionally mandated public institutions.

Cde Jeremy Cronin is SACP 1st General Secretary, a version of this piece was published in Cronin's Cape Times, 'Left Turn' column (27 March 2014).

This version appeared in Umsebenzi Online, the online journal of the SACP.

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