Ranjeni Munusamy: Zuma vs. Madonsela
A constitutional crisis could be imminent over the powers of the Public Protector as she faces increasing political heat over her investigation into the upgrades at President Jacob Zuma's Nkandla residence. Daily Maverick has learnt that Zuma has written to Thuli Madonsela questioning whether she has the powers to investigate him at all. This could lead to a legal showdown between Zuma and Madonsela about the relationship between their offices. For now, any findings or recommendations Madonsela makes in her Nkandla investigation report pertaining to the president could be disregarded by Zuma if he believes the Public Protector has no authority to investigate him.
Public Protector Thuli Madonsela could see a problem coming long ago. In October, she questioned government's delay in changing the law determining her reporting line when she deals with investigations dealing with the presidency. She said then that she had advised government about the problem three years ago and had asked for the law to be changed to clarify how she should deal with reports when these concern the presidency.
Normally, when the Public Protector investigates members of the executive, reports are handed to the president, who can then take action based on the findings and recommendations. Madonsela's investigation into the R206 million security upgrades at President Jacob Zuma's Nkandla residence has pushed all sides into unchartered territory. Madonsela has previously investigated Zuma and found him guilty of breaching the executive code of ethics. In that 2010 investigation, also instigated by the Democratic Alliance, Madonsela found that Zuma had missed the deadline to declare his interests by eight months. Zuma complied only after the press pointed out the oversight. In her report then, Madonsela said Zuma "indicated he regretted the delay" in declaring his interests.
However, in the Nkandla investigation, the stakes are much higher and findings of wrongdoing could have much bigger implications. And this time, on top of the tremendous political pressure on Madonsela, it would appear that Zuma is questioning her powers to investigate him.
Madonsela is due to publicly release her long awaited report into the Nkandla upgrades on Wednesday. She has faced an uphill battle in her investigation, including from government's security cluster, to secure documentation and information from the parties involved in the upgrades.
Madonsela's timetable to release the report was further delayed after she made the provisional version available to interested and affected parties for their comment. Former national police commissioner Bheki Cele is contesting Madonsela's alleged finding that, as accounting officer of the police at the time the Nkandla upgrades were conducted, he had failed to keep proper controls on expenditure.
Daily Maverick understands that Madonsela received a letter from Zuma in February, after he had sight of the provisional report, which questioned whether she had the powers to investigate the president at all. This would be the first time Zuma has officially raised questions about the Public Protector's investigation.
Madonsela revealed in court papers in November, when government tried to interdict her from releasing the provisional report to interested parties, that there were attempts by the security cluster to strong-arm her over the investigation. In her affidavit, Madonsela stated that at a meeting with a group of ministers on 22 April 2013 "Resistance to the investigation was very strong at this stage and there were separate attempts by the Minister of Police, and thereafter collectively by the Minister of Police, Public Works and State Security (with the assistance of the Acting State Attorney and the Chief State Law Advisor) to stop the investigation".
It is unclear why Zuma is questioning Madonsela's powers only after having sight of the provisional report, instead of when the investigation began, and what exactly the nature of his objections are. Daily Maverick understands that Zuma has also expressed concerns about why Madonsela is investigating the upgrades when the matter had already been probed by a government task team.
Since the letter was sent there has been an exchange of correspondence between Madonsela and Zuma, but neither side would disclose what this was about or what impact this would have on the Nkandla investigation report.
In a written response to Daily Maverick, presidential spokesman Mac Maharaj said:
"The President has never questioned the right of the Public Protector to investigate matters that the Public Protector has raised with the President. Since the receipt of the provisional report there has been correspondence between the Presidency and the Public Protector. We however are not at liberty to disclose the contents thereof.
"We would advise you to seek such information from whoever leaked the information about the correspondence to you," Maharaj said.
Madonsela responded to Daily Maverick by SMS, saying: "I am unable to disclose the contents of correspondence received as part of an investigation until we have released the findings of such investigation".
Since Zuma's letter was sent in response to the provisional report, it is possible that it would be reflected in Madonsela's final report being released on Wednesday. If the president is unhappy with how she deals with the investigation in relation to him, it could land the parties in court and result in a constitutional crisis over the relationship between the Public Protector and the Presidency.
One of the key issues Madonsela's report is being watched for is whether Zuma misled Parliament by saying his family had paid for the renovations. If Madonsela finds that the state had paid for renovations that had nothing to do with improving security at the estate, she could recommend that Zuma apologise and pay back the money. But if Zuma contests Madonsela's authority over him, the matter could land before the Constitutional Court.
It is also not clear whether the president would consider action against other parties found guilty of maladministration by Madonsela. The Public Protector's report is expected to differ from the government task team report, which has been accepted by the ANC as an accurate reflection of the upgrades. Madonsela was previously accused by ANC secretary general Gwede Mantashe of having a political agenda, saying she had delayed the report deliberately to harm the ANC's election campaign.
On Sunday Mantashe said the ANC believed most of the information in Madonsela's report to be the same as the government task team report. "We do not have any expectations from it. It has now become a political report and we will handle it as such," Mantashe said while on the election trail in the Free State.
"There might be findings in the report that might be sensational, but we expect the same information from what has been said," Mantashe was quoted by Sapa.
Madonsela is under further heat after Agriculture, Forestry and Fisheries Minister Tina Joemat-Pettersson announced on Sunday that she is taking the Public Protector to court. Joemat-Pettersson is challenging Madonsela's report, released in early December, on the tender to manage the state's fishery vessels. The Public Protector had recommended that Zuma take action against Joemat-Pettersson for "reckless dealing with state money and services, resulting in fruitless and wasteful expenditure, loss of confidence in the fisheries industry in South Africa, alleged decimation of fisheries resources in South Africa and delayed quota allocations due to lack of appropriate research".
Addressing the media on Sunday, Joemat-Pettersson claimed there were flaws and inaccuracies in the report, and she therefore wanted the high court to set it aside. She would not say whether she had discussed her court challenge with the president.
Last week Madonsela was also subjected to a bizarre attack by a group of pastors who accused her of having a political agenda against Independent Electoral Commission chair Pansy Tlakula, SABC chief operating officer Hlaudi Motsoeneng and Zuma.
Last month, Madonsela was embarrassed when an African ombudsman summit she was hosting was snubbed by Zuma, Justice Minister Jeff Radebe, International Relations Minister Maite Nkoana-Mashabane and Gauteng Premier Nomvula Mokonyane. All four pulled out of the summit, saying they had other engagements, the Mail & Guardian reported.
Relations between government and Madonsela are likely to deteriorate further after the release of her Nkandla report on Wednesday. Madonsela was appointed in October 2009 by Zuma and her term of office expires in 2016. She can only be removed before her term expires on the grounds of misconduct, incapacity or incompetence, and by a two-thirds majority in the National Assembly.
Wednesday will be the most crucial day of Madonsela's formidable career as she has the unenviable task on pronouncing on matters relating to the president's private residence. Whether she will be able to withstand sustained heat on her for another two years remains to be seen.
This column appeared on Daily Maverick.