Has Public Protector Failed SA in the Zuma Saga?
The arms-programme investigation was described as a litmus test for the independence of parliamentary oversight of the executive in SA. However, it was also a test of the independence of our constitutional oversight bodies.
In terms of chapter 9 of the constitution the auditor-general and the public protector have an obligation to act without fear, favour or prejudice to strengthen and defend our constitutional democracy.
Much has been said about Parliament's performance in upholding its independence during the arms deal investigation. Vital members of its financial watchdog committee, the standing public accounts committee (Scopa), resigned in the face of alleged interference from members of the government executive.
Scopa was responsible for establishing the joint-investigating team consisting of the auditor-general, the public protector and the public prosecutions directorate. Recent interventions by the auditor-general and the public prosecutions directorate in respect of the arms deal have been the subject of considerable public debate.
Yet surprisingly little has been said about the public protector's role in investigating allegations of impropriety in relation to the arms deal by Deputy President Jacob Zuma.
Has the public protector done everything in his power to resolve this case? Has he acted vigorously and independently in terms of his mandate? Could he have helped to settle the issue of whether Zuma is fit to remain in public office short of obtaining a criminal conviction? Does current indecision relating to the post of deputy president have to be perpetuated until completion of the lengthy criminal trial involving his "financial adviser", Schabir Shaik? Auditor-general Shauket Fakie, has been subjected to vigorous public questioning on the issue of whether he compromised his independence in the investigation.
Gavin Woods, who resigned as Scopa chairman last year, has drawn attention to the fact that instructions were issued preventing the staff of the auditor-general's office from communicating with Scopa members during the investigation.
He also pointed to the fact the joint investigating team had secretly given a draft of its report to the executive prior to releasing the final report to Parliament. When this information was leaked to the public Fakie fought a protracted legal battle to contest a request for access to information to try to prevent the original draft of the report from being made public.
Attention has also been drawn to significant changes in the wording of the final report.
The public prosecutions directorate's recent decision not to prosecute Zuma on allegations of corruption and bribery relating to the arms deal has been scrutinised exhaustively. Was public prosecutions director Bulelani Ngcuka subject to executive pressure? Was his decision influenced by such pressure?
Whatever else can be said about the matter it should be recognised that a thorough criminal investigation has been conducted into the allegations against the deputy president, and the public prosecutions directorate has acted transparently in providing reasons for its decision.
This has served to bolster confidence in the independence of the office of the public prosecutor.
By contrast the public protector's office has been conspicuous by its failure to reach a decision and make any intervention. The mandate of the public protector is to investigate conduct in any sphere of government or state affairs suspected of being improper. Specifically, the public protector is tasked with investigating breaches of the Executive Members Ethics Act by cabinet members. This act sets out a code of ethics for all members of the executive and requires ministers to declare all gifts, hospitality or other benefits they or their families get. Such benefits have to be declared to the cabinet secretary and recorded in the parliamentary register of interests.
Among other things this code prohibits ministers and MECs from:
Using their position or any information entrusted to them to enrich themselves or improperly benefit any other person;
Using information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;
Exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests; and
Receiving remuneration for any work or service other than for the performance of their functions as members of the executive.
Zuma should arguably be familiar with the provisions of the Executive Ethics Code, given that he personally signed it into law on July 28 2000.
If the public protector's office gets an allegation from an MP about the breach of any of these provisions by a member of the executive, it has to conduct an investigation into the allegations and submit a report to the president within 30 days.
However, the public protector's office is also empowered to undertake investigations on its own initiative and to subpoena witnesses in the course of such investigations.
Without commenting on the merits of the criminal case against Zuma, the question is whether he declared any payments received from Nkobi Holdings or from Shaik to the cabinet secretary or to the parliamentary register. If Zuma failed to declare payments by Nkobi Holdings or Shaik for rentals or other fees paid on his behalf he would have been in breach of the provisions of the Executive Members Ethics Act.
The public protector's office was a part of the joint investigating team into the arms deal and, for that reason, must have been privy since October 2001 at the latest to allegations of improper benefit by the deputy president. So why has it failed to conduct an investigation and complete a report? Specifically, the public protector's office can reasonably be expected to investigate the evidence as to whether Zuma received money from Nkobi Holdings or from Shaik.
If so, it should have established whether such money was declared as gifts in the parliamentary register of members' interests. If they were not it should have delivered a report on the matter to the president and subsequently tabled a report in Parliament on the appropriateness of the deputy president's conduct.
This is a separate and distinct matter from the question of whether Zuma is guilty of committing the criminal offences of bribery or corruption.
By failing to produce such a report the public protector's office has failed its mandate and the public.
Allan is director of the Public Service Accountability Monitor.
With acknowledgements to Colm Allan and the Business Day.