Bringing Down the House?: Legislative and Political Limits on Anticorruption Efforts in South Africa

A swimming pool. A cattle corral. An amphitheater. These are the sorts of ostensible “security upgrades” at Nkandla, the home of South African president Jacob Zuma, which filled the Public Protector’s report on the misuse of state funds.  As Eden pointed out in a previous post, these salacious details spread through the South African media like a firestorm, leading to calls for President Zuma to resign—or at least pay back the money—and adding to the growing reputation of Thuli Madonsela, South Africa’s “Public Protector“, an ombudsman-like position constitutionally charged with investigating improper government conduct.

Madonsela, who helped draft South Africa’s current constitution, was unanimously nominated by a National Assembly committee and appointed by President Zuma in 2009.  Though as Public Protector she is unaffiliated with any political party, she was previously a member of the African National Congress, the party that has dominated South African politics since the end of apartheid.  Her persistence in fighting corruption, though, seems to have come as a surprise to her former compatriots, who have resorted to personal attacks; the deputy defense minister, for example, recently accused her of being a CIA spy.  In a country which has been repeatedly criticized for inadequately addressing corruption, Madonsela’s investigations into cabinet officials and the police commissioner have provided one of the few signs of accountability.  Her report on the expenditures at Nkandla, which calls for President Zuma to make a partial repayment, is her highest-profile work thus far.

However, despite all the praise directed towards Madonsela—like inclusion in Time’s “100 Most Influential People” of 2014—the furor around “Nkandlagate” has revealed several severe limitations on the office of the Public Protector.

  • First, the Public Protector’s recommendations are not explicitly legally binding. Article 182 of the Constitution grants the Public Protector three powers in relation to improper public administration: the power to investigate, to report, and to “take appropriate remedial action.”  The Public Protector Act, which fleshed out the role of the office, focuses on investigatory powers and does not include any clear reference to an ability to force government officials to act upon the recommendations contained in a report. It is possible to argue that the government has some sort of legal responsibility to act upon such recommendations, and the recent suggestion by opposition parties that they will bring such a case to the Constitutional Court makes this an issue worth exploring in a future post. Still, without a textual grant of the power to issue binding judgments that force government officials to act, the Public Protector’s ability to induce change is based largely on shining a light on corrupt acts and hoping public pressure takes over from there.
  • Second, South Africa’s anticorruption legislation contains a presidential loophole. Madonsela’s report on Nkandla suggests that President Zuma violated the Executive Members’ Ethics Act (EMEA). However, Article 3 (5) of the EMEA leaves it to the president to submit the Public Protector’s report and “a report on any action to be taken…thereto” to the National Assembly. Ultimately, pressure from opposition parties forced the Ad Hoc Committee on Nkandla to include Madonsela’s report as part of the documents the committee was considering, but that committee is still under no obligation to act upon its recommendations. Remedies for corrupt acts should be built into the legal system, rather than relying on the president being willing to take action against him- or herself.
  • Finally, the ANC’s domination of South African politics makes the Public Protector vulnerable. The Public Protector is appointed by the president upon the recommendation of a committee of the National Assembly and approval by least sixty percent of the National Assembly. The ANC has 62 percent of National Assembly seats (and will continue to do so until the next election in 2019), and thus effectively has the power to choose who will replace Madonsela when her non-renewable seven-year term ends in 2016.  Given the amount of frustration she has caused the ANC, the party will likely be far more meticulous in screening its next candidate for loyalty.  As the term of the Public Protector prior to Madonsela—characterized by an investigation the Supreme Court of Appeal rejected as “so scant as not to have been an investigation”—indicates, the effectiveness of the office is largely contingent on the individual holding it.

There is one surprising glimmer of hope.  South Africa’s usually fractious opposition parties are finding common cause on the issue of ANC corruption.  It’s the rare moment when the Democratic Alliance (DA) party and the Economic Freedom Fighters (EFF) party (whose leader frequently calls the DA a “racist organization”) agree on anything, but earlier this month all the opposition party members on the Nkandla Committee withdrew and, as mentioned, threatened to go to the Constitutional Court for a judgment that Madonsela’s recommendations are binding.  With the outcome of any such litigation uncertain, though, the political gamesmanship of this unusual alliance—and any ANC worry about losing political ground to it—might soon be South Africa’s best extra-judicial shot at fighting corruption.

13 thoughts on “Bringing Down the House?: Legislative and Political Limits on Anticorruption Efforts in South Africa

  1. This is a really interesting post, Katie. While I like the idea of seeking a Constitutional Court holding that Public Prosecutor recommendations are binding, I wonder if this may, at least in the short term, end up actually weakening the Public Prosecutors office? The ANC is pretty firmly in charge of South Africa, but they are not as unified as they once were. While corruption may be widespread, there are voices within the party which identify corruption as a significant threat to the country and which call for a robust government response. When it comes time to appoint Madonsela’s successor, even if the party as a whole wants to reign in the Public Prosecutor’s office, these voices may be able to advocate for someone who will take the job somewhat seriously, and who will at least go after the most egregious abuses, even if it’s only to shame them. If the Public Prosecutor’s recommendations are made enforceable, would that effectively kill any chance these more moderate voices may have of protecting at least the investigatory powers of the office?

    • Katie’s post and Melanie’s points bring up another question for anyone running an anti-corruption office in a very corrupt country: is it better to always be zealous in uncovering corruption wherever the evidence may lead (even if doing so may then result in those you expose curbing the power of the anti-corruption office)? Or is it sometimes better for the anti-corruption project in the long run to take a step back and pursue the corruption that it’s politically feasible to go after?

      • I think this comes back to something we discussed a bit in class when I brought up the problems the now-disbanded Scorpions faced. It’s definitely a tricky balance (one that makes it extra-important for you to dot all your i’s and cross all your t’s, something the Scorpions could probably have been a bit better about). A great subject for further exploration, for sure!

    • I also wonder, though, if Madonsela’s more aggressive approach could help to shape public perception of the Public Prosecutor’s office, such that successors will be held to a certain standard going forward. Seven years is not an insignificant time in office, and perhaps the media hype around cases such as this, involving the egregious misuse of state funding, could instill public confidence in the Public Prosecutor’s office. Could the media play a role in exerting public pressure on the government, such that 1) a court order is no longer needed to enforce recommendations, and 2) the office itself becomes viewed as one that should be held by prosecutors who are unafraid of taking on these cases?

      • Good questions. I’d say South Africa’s media has so far been pretty vocal in criticizing corruption-related events–particularly when, as with Nkandla, they have a headline-grabbing hook to go with them–and yet that hasn’t stopped multiple ANC politicans from making some pretty hostile statements about Madonsela. If they’re willing to speak like that publicly, I’m skeptical that they likely feel enough pressure to change the sort of person they would nominate–yet. I don’t want to sound too negative. As a whole, I’m very optimistic about the future of South Africa; I just think that so far, the media’s role hasn’t yet curbed behavior as much as we might hope.

    • Interesting proposal. I’m very much going into the speculative realm with my answer here (so if someone with more expertise has an opinion, I’d love to hear it), but my instinct is that whether the recommendations are binding or not won’t be the key to the political process of the next Public Protector’s appointment–either the moderates would be able to push for a more independent voice or they won’t have the power, but I don’t think much mollification (or intensification of the divide) will come about based on whether or not the recommendations are binding. I’m also not necessarily saying her recommendations NEED to be binding–it’s a limitation worth noting, but maybe there are ways to work around it or the benefits offset the costs.

  2. The article makes for an informative read. Thank you Katie. However I wonder if the problem of the Presidential loophole could not be overcome by emphasising the peremptory phrasing of the provision? According to Section 3 (5) of the EMEA it would seem that the President is obliged to table the Public Protector’s report in front of parliament without exercising any discretion and therefore making room for accountability.
    If this is not the case however this provision ought to be brought under Consitutional scrutiny. It would be farcical to subject the Public Protector’s findings, as you put it to the willingness of the President “to take action against him or herself”

    • Given the–as you say–farcical nature of the result, it could well be that a court would look beyond the text of the EMEA and, based on the purpose of the act, find that the president is still bound to turn over the report. You’re right to point out the peremptory language, but, as I read the EMEA, 3(5) makes reference to the president’s obligation to act on reports about cabinet members, deputy ministers, premiers, and MECs (via the reference back to 2(b)), but says nothing about an obligation to hand over reports on the president.

    • Nothing’s less interesting than “process of blogging” comments, I know, but there may be an upcoming post that references that quotation.

  3. Pingback: Corruption Currents: China’s Fight Against Corruption - anticorrupcao.net

  4. Pingback: You Can’t Go Home Again: A Surprising Concession from South Africa’s President | GAB  | Anti Corruption Digest

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s