Nkandla: Madonsela’s tactical missteps
Public Protector Thuli Madonsela thought the process of releasing her investigation report into security upgrades at President Jacob Zuma's Nkandla residence would be a neat three-step move. She even drew a flow chart showing the smooth hop, skip and jump to deliverance. Well, considering the explosive subject and the elaborate cover-up around it, it was never going to happen like that. If the ultimate aim is to get her report out, then there's no need to empty the barrels in the opening skirmish. Madonsela is now stuck in litigation which takes the process out of her control. Bad move, considering whom she is up against.
The decision by ministers in the security cluster to call a sudden media briefing on a Saturday morning was prompted by one motive: to show Public Protector Thuli Madonsela to be unreasonable and narcissistic. There is already that perception amongst many politicians across the board that have had dealings with her.
Madonsela has very few friends in Parliament's Justice and Constitutional Development portfolio committee because MPs from all the political parties represented are constantly clashing with her over her perceived reluctance to be accountable to them. In a committee meeting last month, Democratic Alliance (DA) MP Dene Smuts told her: "You, in short, are accountable to us, [and] accountability is a hierarchical relationship. You must justify the performance of your functions to us."
So the perception that it is just the ANC on Madonsela's case is simply not true.
That said, nobody Madonsela has had to contend with in the past, including former police chief Bheki Cele, enfant terrible Julius Malema or Western Cape Premier leader Helen Zille, is as intimidating as having ANC secretary general Gwede Mantashe and all the ministers in the security cluster in attack mode. Mantashe has made grown men in his own party cry and want to quit their jobs; just imagine what he could do to the strait-laced Public Protector if he got her in his clutches.
Madonsela took on the investigation into the R206 million state-funded upgrades at President Jacob Zuma's private estate at Nkandla over a year ago and initially indicated that her report would be released in March this year. However her investigation was hindered by foot-dragging in government to hand over the documentation she required. She was eventually able to source the information, and conducted a personal inspection of the president's sprawling Nkandla home. She also met with Zuma to interview him about the renovations at his homestead.
For several weeks, Madonsela has been drumming up public expectation through the media about the impending release of her provisional report. That has been unnecessary, as nothing in recent history has been as eagerly awaited as Madonsela's report into what is clearly excessive outlay of taxpayers' money.
Then last month, Madonsela made public her uncertainty over whom she should submit the report to because she felt there was a legal lacuna with regard to oversight over the presidency. The ANC and DA both responded saying that the report should go to Parliament, as the president is legally and constitutionally accountable to it. The ANC, however, was annoyed by Madonsela expressing doubts about where the report should be submitted.
The office of the ANC Chief Whip Stone Sizani said "inferences in the media regarding lack of an oversight mechanism over the president and regarding her predicament have unfairly projected the president and his executive as law unto themselves who do not want to be held accountable".
Madonsela then made a curious move, telling the Sunday Tribune that it was possible people would be "disappointed" by her provisional report. "I cannot comment on the contents of the report… But there's a real chance that we may come out and say things aren't really as bad as they seem," she told the paper.
"I'm not in a position to say we've made adverse findings - I can't confirm that. (But) you may just find that the money that was spent was exactly the right amount.
"It is possible that people may be disappointed because we work with the law. If the law authorised them to spend that money, I may disagree in my personal view and say this shouldn't have happened, but if the law allows it, you can just say: 'Please change the law'."
It is inexplicable why Madonsela would choose to pre-empt her report in this way instead of letting it speak for itself. Never in the past has she found the need to explain her investigations beforehand or prepare the ground before landing her reports.
Not surprisingly, she got lashed for this - from no one less than the Don of Luthuli House. Mantashe said Madonsela's handling of the matter showed that she was working on the psyche of the public.
"She has handled it in a manner that suggests that she is an interested party. In this regard, she has positioned the report in a manner that will work on the public psyche in a particular manner," Mantashe said.
He demanded an explanation of Madonsela's statement as to whom she thought would be disappointed by the outcome of the interim report. "This therefore removes neutrality of the public protector and her conduct suggests that she is protecting interests of a particular section of society."
In another curious move, Madonsela released her provisional report to government's security cluster "for them to make comments on security concerns they might have". In a statement she released on 1 November, Madonsela said: "Organs of state within the cluster made a special request to have access to the report before it is shared with the rest of the parties, with a view to commenting on whether or not it compromises the security of the president." She initially gave them until Wednesday, 6 November to submit their comments.
The ministers in the justice and security cluster are now denying that they asked for the report and claim Madonsela herself decided to send it to them for comment. One side is clearly lying, as the versions are completely contradictory. Nevertheless, sending the report to the state organs could have been a costly error by Madonsela, as they were bound to frustrate her once they knew the contents.
There is nothing to indicate that Madonsela was compelled to give the report to them in advance of the interested parties. The ministers have now gone to court to request more time to study the report, which they claim Madonsela declined to give them. Madonsela said on Monday that she was slapped with an interdict as she was considering giving the ministers the extra time they wanted.
She said her reluctance to grant the extension was because she was "of the view that acceding to the request would be an injustice on the affected and implicated parties". She did not explain how the various parties would be prejudiced by the week's extension. Madonsela explained through a flow chart attached to her media statement how the process towards making the report public would be delayed indefinitely if she accedes to the state's request.
Madonsela had the option of granting the extension in the first place, or after being served with court papers, deciding not to oppose the request for a week's grace. The effect of not doing so means that she is now caught up in a legal battle on extraneous issues around the report, which in itself would delay its release. The court action has in any event given the state organs the extra time they had wanted in the first place.
The big problem now for Madonsela consists of the other issues that are in the court papers, particularly in Police Minister Nathi Mthethwa and Public Works Minister Thulas Nxesi's affidavits.
Mthethwa warns in his affidavit that the release of the report "without prior authorisation of the [security cluster] is unlawful and carries with it a criminal penalty…. If the provisional report is released in its current form as intended by the [Public Protector], the [security cluster] will suffer irreparable harm and the safety of the president will be severely compromised."
Nxesi says: "We reserve our right to take the necessary legal actions to preserve the security of the state as well as part of the national key points."
This means that this is not a simple battle over a few more days to study the report. By Madonsela not granting the extension, she has given the ministers the legal gap to make her report in its current form impossible to release due to amorphous concerns about the president's security. Her preoccupation with releasing the report quickly has now bogged her down in a legal process - which takes the process out of her control.
Madonsela seems to be of the view that the public would be prejudiced by a delay in releasing the report. The fact is that R206 million of taxpayers' money was splurged on this project that cannot be returned to the public purse. The public is already prejudiced. It should also be remembered that the report's release has already been delayed by eight months without public protest.
What is in the best interest of the public is an account of how the renovations came to take place and who authorised them, whether any procedures were flouted, how much state money was spent and on what, who received the contracts and whether they were properly granted. That is what Madonsela should focus on getting out to the public and not allow the state to introduce the red herring of "national security".
However, the public protector is now going to head to head with the state in a premature court case. Of course the court battle over the contents would have come further down the line had she granted the extension. But as things stand, Madonsela has allowed herself to be tripped on the first hurdle.
Madonsela needs to learn to choose her battles, especially when dealing with a phalanx of people desperate to smother her findings. She now has no protection and is at the mercy of the court process. But the one thing she seems to overlook is that behind the wall of security cluster ministers and the Don of Luthuli House is the one person you do not take on if you do not have your wits about you.
And as history as shown, when it comes to courtrooms and Jacob Zuma, Number One always emerges as number one.
This column appeared in Daily Maverick.