PHUNYUKA bemphethe, so goes the joke in the black community as folks watched President Jacob Zuma attempting to wiggle himself out of yet another scandal.
While suggesting disbelief in one instance, the phrase also expresses awe. Zuma has an uncommon talent and shameless determination to evade punishment for wrongdoing.
Understanding the philosophical basis of the Office of the Public Protector (OPP) is critical in appreciating the supremacy of this office.
It is not just a public office. First established by the Swedes in 1809, the public protector is the very expression of democracy. In creating the OPP, the drafters of our constitution brought to life the fundamental principle that democracy is “government of the people ”.
It was introduced as the answer to the inability of citizens to exercise control over the bureaucracy. Citizens exercised influence over their government and parliament through elections. But they lacked any such measures when it came to the bureaucracy, even though the latter exerted enormous influence over their lives. It could be unresponsive and abusive towards citizens.
Because they don’t depend on public opinion for their employment, civil servants have little encouragement to please citizens. Introducing the public protector, therefore, extended public control beyond government and parliament over to the administration.
The public protector ensures that public officials and elected leaders observe the law, fulfill their duties and are efficient. Most importantly, the OPP performs this function free of charge, ensuring that enjoyment of rights is not contingent on citizens’ ability to afford legal representation. Democratic citizenship finds complete meaning in the Office of the Public Protector.
Actually, the significance of the OPP goes beyond fulfilling democratic requirements. It is a manifestation of who we are as a society. South Africans distrust the state. This is not surprising. The democratic republic emerged out of centuries of authoritarianism. Previous regimes did not govern, but reigned. Theirs was a reign of terror upon the majority. State officials did not serve the public, but inflicted horror.
Because of our hellish past experience the writers of the constitution rightfully insisted on checks and balances to avoid in future a repeat of the past. Like the victims, the perpetrators of the apartheid horror, fearing vengeance for past sins, would also have insisted on such future protection. The ghastly memory of the past and fear of potential reprisals thus made the OPP an inevitable feature of our new democratic republic.
Given the normative foundation of the OPP, it can never be that findings by the executive into its own impropriety assume equal importance as that of the public protector. On matters of bureaucratic misdemeanour, the executive is itself subject to investigation. For the obvious reason that it is absurd to arrogate the role of an investigator where one is implicated, the executive must necessarily defer to an independent body. The public protector’s findings take precedence, not only because the constitution deems it so, but by sheer force of common sense.
If ever there was an instance where ministerial findings override those of the public protector, then there would be no need for the latter.
Deferring to the executive over the public protector, on investigations related to administrative irregularities, nullifies the very idea of a public protector.
Actually, the mere existence of the OPP invalidates an executive probe, especially if the complaint is already under investigation by the public protector.
The inter-ministerial investigation should not have even happened. The very idea of it had no logical basis.
And it is foolhardy to assume the president is ignorant of the supremacy of the OPP on these matters. Zuma is not only mindful of this constitutional prescript, but has also been compliant. For example, when Madonsela announced investigations into the allegations of impropriety involving minister Sicelo Shiceka, and later commissioner Bheki Cele and many others that have subsequently followed, Zuma did not institute parallel investigations. And in all instances, not once did the president challenge the veracity of Madonsela’s findings. Rather, he consistently acted on her recommendations, with the exception of recent instances where culprits are seeking a judicial review of the findings.
Attempts to undermine Madonsela’s findings, therefore, will not succeed. Reasonable grounds are lacking. Zuma is delaying what is ultimately inevitable.
If parliament, to which the president is accountable, does not force him to comply, a court of law will. Someone will most likely take the president to court. And it is highly unlikely that a court will agree with Zuma.
In fact, in yet another case involving Zuma, a court has just ruled that it is acceptable to call Zuma a “thief”. What is ordinarily pejorative, the court found quite befitting in the case of our president. From an international statesman (Nelson Mandela), to a renaissance man (Thabo Mbeki), we now have a “thief”.
If the Nkandla report reaches court, it means Zuma’s second term is likely to be a rerun of his initial term. Once again, instead of leading the republic, our president will be in and out of court defending himself against his own citizens. And he’ll have even more court appearances in the second term as the Nkandla case will add to yet another ongoing case related to the spy tapes.
Could it be that in 2019 we’ll look back on 10 years of a president using his time in the country’s most prestigious office to evade the law? Surely there must be an end to this.
Mcebisi Ndletyana is head of the political economy faculty at Mistra
Journey from statesman to renaissance man to ‘thief’
While suggesting disbelief in one instance, the phrase also expresses awe. Zuma has an uncommon talent and shameless determination to evade punishment for wrongdoing.
Understanding the philosophical basis of the Office of the Public Protector (OPP) is critical in appreciating the supremacy of this office.
It is not just a public office. First established by the Swedes in 1809, the public protector is the very expression of democracy. In creating the OPP, the drafters of our constitution brought to life the fundamental principle that democracy is “government of the people ”.
It was introduced as the answer to the inability of citizens to exercise control over the bureaucracy. Citizens exercised influence over their government and parliament through elections. But they lacked any such measures when it came to the bureaucracy, even though the latter exerted enormous influence over their lives. It could be unresponsive and abusive towards citizens.
Because they don’t depend on public opinion for their employment, civil servants have little encouragement to please citizens. Introducing the public protector, therefore, extended public control beyond government and parliament over to the administration.
The public protector ensures that public officials and elected leaders observe the law, fulfill their duties and are efficient. Most importantly, the OPP performs this function free of charge, ensuring that enjoyment of rights is not contingent on citizens’ ability to afford legal representation. Democratic citizenship finds complete meaning in the Office of the Public Protector.
Actually, the significance of the OPP goes beyond fulfilling democratic requirements. It is a manifestation of who we are as a society. South Africans distrust the state. This is not surprising. The democratic republic emerged out of centuries of authoritarianism. Previous regimes did not govern, but reigned. Theirs was a reign of terror upon the majority. State officials did not serve the public, but inflicted horror.
Because of our hellish past experience the writers of the constitution rightfully insisted on checks and balances to avoid in future a repeat of the past. Like the victims, the perpetrators of the apartheid horror, fearing vengeance for past sins, would also have insisted on such future protection. The ghastly memory of the past and fear of potential reprisals thus made the OPP an inevitable feature of our new democratic republic.
Given the normative foundation of the OPP, it can never be that findings by the executive into its own impropriety assume equal importance as that of the public protector. On matters of bureaucratic misdemeanour, the executive is itself subject to investigation. For the obvious reason that it is absurd to arrogate the role of an investigator where one is implicated, the executive must necessarily defer to an independent body. The public protector’s findings take precedence, not only because the constitution deems it so, but by sheer force of common sense.
If ever there was an instance where ministerial findings override those of the public protector, then there would be no need for the latter.
Deferring to the executive over the public protector, on investigations related to administrative irregularities, nullifies the very idea of a public protector.
Actually, the mere existence of the OPP invalidates an executive probe, especially if the complaint is already under investigation by the public protector.
The inter-ministerial investigation should not have even happened. The very idea of it had no logical basis.
And it is foolhardy to assume the president is ignorant of the supremacy of the OPP on these matters. Zuma is not only mindful of this constitutional prescript, but has also been compliant. For example, when Madonsela announced investigations into the allegations of impropriety involving minister Sicelo Shiceka, and later commissioner Bheki Cele and many others that have subsequently followed, Zuma did not institute parallel investigations. And in all instances, not once did the president challenge the veracity of Madonsela’s findings. Rather, he consistently acted on her recommendations, with the exception of recent instances where culprits are seeking a judicial review of the findings.
Attempts to undermine Madonsela’s findings, therefore, will not succeed. Reasonable grounds are lacking. Zuma is delaying what is ultimately inevitable.
If parliament, to which the president is accountable, does not force him to comply, a court of law will. Someone will most likely take the president to court. And it is highly unlikely that a court will agree with Zuma.
In fact, in yet another case involving Zuma, a court has just ruled that it is acceptable to call Zuma a “thief”. What is ordinarily pejorative, the court found quite befitting in the case of our president. From an international statesman (Nelson Mandela), to a renaissance man (Thabo Mbeki), we now have a “thief”.
If the Nkandla report reaches court, it means Zuma’s second term is likely to be a rerun of his initial term. Once again, instead of leading the republic, our president will be in and out of court defending himself against his own citizens. And he’ll have even more court appearances in the second term as the Nkandla case will add to yet another ongoing case related to the spy tapes.
Could it be that in 2019 we’ll look back on 10 years of a president using his time in the country’s most prestigious office to evade the law? Surely there must be an end to this.
Mcebisi Ndletyana is head of the political economy faculty at Mistra
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