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.