BANDILE MASUKU: Defining 'executive oversight' is in the public interest
The High Court in Pretoria handed down its judgment on Monday on the review application to set aside the Special Investigative Unit (SIU) on the so-called "findings" and "recommendations" against the executive authority – myself as the erstwhile MEC for Health in Gauteng – on what I could have and ought to have done to attend to allegations of personal protective equipment corruption or even prevent alleged corruption.
From the outset, it is important to note that I have always considered any allegation of corruption or criminality to be a serious matter of national importance because corruption robs our people of a better life for all, for which many have sacrificed their lives. To this end, I consider myself an ally of those who stand opposed to corruption. And that is why I became the first MEC in the country to act on allegations of PPE corruption, almost immediately when I got informed.
I am pleased that the judgment has exonerated us. It is not a victory for Masuku. It is a victory for an entire generation across the country.
The matter that was before the court was not about Masuku the individual or the attempt to get a political post back. It was about several questions of integrity, legality, policy and the law. I sought to review and set aside the so-called findings of the SIU because they impugned my reputation and blurred the lines between the roles of the executive authority and the accounting officer.
As it relates to the specific matter of allegations of PPE corruption, the judgment found that I took action but felt that I ought to have done more to prevent the alleged incidents of corruption. Sadly, I believe the honourable court has erred in terms of the application and interpretation of the law, just like the SIU did.
The judgment says erroneously that as executive authority, I should have "taken direct action". But the law expressly prohibits executive authorities from interfering in administration and operations of the department.
In my view, the test is not whether or not I have acted and/or done so sufficiently. The test is whether, when an executive authority gets informed of such incidents, measures are taken and what those measures are. In my case, ample evidence shows that I took measures to respond to the allegations within the law. The executive authority cannot exercise oversight or public power arbitrarily outside the law. That would mean that he or she is violating the institution of the rule of law as well as the Constitution.
The court record shows that as the then MEC, once I got alerted of possible corruption, I considered the relevant information and acted in concert with the former Head of Department (HOD) to invite the Gauteng Audit Service (GAS) to investigate the allegations, as well as our governance processes.
It must be appreciated that the executive authority is a politician - not an administrator, accountant, or investigator. However, the public would be justified to expect that at the very least, the political principal must have the ability to decipher a potential risk and then refer such issues to the relevant competent authority for actioning. That, I did.
The finding that I did not exercise sufficient oversight is surprising because the GAS report became the basis upon which Premier David Makhura was advised by the me – acting in concert with the HOD – to invite the SIU to investigate the red flags raised at the time.
The question on whether the executive authority is empowered to usurp powers and functions reserved in law for accounting officers remains unresolved and will continue to cause anxiety and confusion in our governance system.
The courts or the legislature must help the next Dr Masuku, the law and the country to understand what the standard is or ought to be. What is executive oversight? What are its limitations in law, regulation and practice? How was it exercised in this instance? What are the gaps, if any, and how might we improve it as a country?
By the way, if the extent and limits of executive oversight are not defined and agreed upon, then it means we may actually achieve the opposite: a situation where rogue politicians can use the lack of clarity to escape accountability. That kind of thing can generate an untenable situation because some among us are hell-bent on self-preservation.
I think it is possible that an opportunity to provide us with much needed jurisprudence to aid the development and strengthening of democracy, governance and accountability was missed. The judgment does not define the standard upon which executive authorities must be held against.
Interestingly though, the very same judgment finds that "the monthly reports that a political head is obliged to read and actions he would have to take … would not have provided him [the MEC] in time, with useful information, assuming the reports could contain anything useful, to stop the malfeasance, and thus the allusion thereto was superfluous." This is a scathing criticism against the SIU because, I have no doubt in my mind that the SIU knows very well as to how governance works and specifically how the reporting system works in government.
Our belief is that the evidence we gave shows that we may have gone beyond the minimum call of duty. We had put in place monthly and weekly reporting structures, about six work streams initially, a command centre [war room] that met daily in the first two months, a command council chaired by the premier and informal updates to the premier almost every second day.
As President Cyril Ramaphosa said in Parliament sometime back in October 2020, even with the robust of checks and balances, many governments across the world still faced the reality of private and public actors who took advantage of the global health emergency to enrich themselves improperly.
In terms of the Public Service Act, the power of disciplining officials rests with the accounting officer and not the executive authority. As I write this piece, there is an ongoing disciplinary case of a deputy director-general where an acting MEC of Health signed an illegal letter of suspension. Now, that illegality has been discovered by the disciplinary process and so the unfortunate letter is withdrawn and the case has now been jeopardised.
For the longest time I have said – and the several media statements issued by my former office bear me out – that everybody, including the media, must step away from an ongoing investigation because the risk always exists that undue influence can jeopardise a good ongoing criminal investigation, as a consequence of which culprits may walk. I still believe that this approach is correct. The disciplinary case I have cited proves the point.
In the media and elsewhere, my strict compliance and respect for due legal processes has been interpreted as either a weakness, evasiveness or even arrogance. This also speaks to the internal ANC processes. I am sorry to disappoint some of you, but I believe that legal processes must not be a public spectacle, unless the law itself is unjust.
I am pleased with the fact that the court has finally put to rest one of the key contentions I had about the SIU findings (now clearly defined as "opinion" by the court) that there is no shred of evidence to suggest that I had "nefarious" intentions to benefit myself, family and friends at the expense of the people. This kind of opinion by the SIU effectively tarnished my professional and political career.
Furthermore, the court determined that the premier did not have an obligation to act on the opinions of the SIU. The prerogative of the premier to hire and fire at will has never been my contention. It is the SIU opinions that had to be reviewed and set aside. Otherwise, they would continue to shape public perceptions against me and the ANC in a negative way. This is a victory for justice.
The most important thing about this whole experience is the fact that governance is sometimes complex as an evolving reality. In fact, some economists around the world suggest that COVID-19 has occasioned the necessity to redefine "failed states" as many states have proven to be "failed states" under COVID-19, including some in the developed north. What will South Africa learn from this experience? Will the COVID-19 crisis be used as an opportunity to learn multiple lessons at multiple levels of governing the public and private spheres of life, or will it just go to waste?
As my organisation, the ANC, rethinks and repositions itself for renewal, it will certainly have to pick up some lessons from this experience so that it can be ready for more uncertainty ahead, including more risks for global health pandemics. But if the lessons are not gathered and studied now, the risk exists that we may repeat history. How do you govern under conditions of extreme uncertainty?
The biggest concern for Gauteng Health relates to the turnaround strategy that has been disrupted by this period at the executive management level. The consequence of this instability is that the department will remain in reconstructive mode for the foreseeable future. This cannot be right for the biggest regional public service programme in South Africa.
Personally, one of the biggest lessons I have learnt is that when holding political office, always remember that the law and goodwill is often punctuated by politics. However, I remain optimistic that in the end, the definition of executive oversight will be found. It is in the public interest. To this end, an appeal against the judgment is under consideration.
_Dr Bandile Masuku is a PEC member of the ANC in Gauteng, former MEC for Health and serving member of the Gauteng Provincial Legislature. _