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In democracies, law is important but politics is decisive

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Date Released: Wed, 1 October 2014 09:33 +0200

THE constitution and the law are there to ensure that democratic politics happens within agreed rules — not to make politics go away.

One result of Public Protector Thuli Madonsela’s Nkandla report is debate among lawyers — and political parties — on her powers. One side of the argument insists that she can only recommend and cannot tell the government what to do. The other, which includes Madonsela, relies on a clause in the constitution that says the office can take "remedial action" to argue that it can order government to act. The dispute may be headed to the courts.

The clause on which Madonsela and her supporters rely is hardly clear. It does not say the government should take "remedial action" when the public protector tells it to — it says the public protector should take that action. But what does that mean? That the public protector should write a report? Make helpful suggestions? Order the government to act? Any of these interpretations is possible, which is why lawyers can’t agree on the issue. So we do need clarity on the public protector’s powers. But this is far less important than we are being told.

Those who claim that the clause gives the public protector the power to tell the government to comply hope that the office, not the political process, will decide how the country deals with corruption allegations. To many, that will sound attractive: if the protector only makes recommendations, a governing party can use its majority to ensure that nothing is done. Giving an office created by the constitution the power to tell politicians what to do surely solves that problem?

Like all attempts to substitute for democratic politics, this makes sense only if you approve of Madonsela or of a particular report her office has issued. But public protectors don’t last for ever — they serve for only seven years. Those who want Madonsela’s reports to be binding on the government would not have felt the same about her predecessor’s — and there is no guarantee they will feel the same about her successor. And even a respected protector may produce reports that seem to rubber-stamp official actions: the Nkandla report may have been applauded — a report a few years back by Madonsela finding no evidence of wrongdoing in Limpopo tenders was not. So giving the office the power to override politics is a double-edged sword that would give greater power to reports that let the government off the hook as well as those that hold it to account.

The "solution" also fails to see that, in the real world, power does not stem mainly from constitutional clauses and legal rulings. No government in the world likes to be told what to do by an independent watchdog — if watchdogs fail to recognise that governments have the power to ignore them (and sometimes even when they do), they can run into trouble: former US president Richard Nixon thought nothing of firing special prosecutors he appointed when they began to threaten his job security.

Whatever the law and the constitution say, independent offices have to tread warily if they want to be effective because, if they impose threatening solutions on governments, they could end up losing all their influence.

Madonsela knows this, whatever she says about her powers. That is why she did not order President Jacob Zuma to fire two Cabinet ministers she found guilty of wrongdoing — she merely appealed to him to "do the right thing". That is why her Nkandla report does not tell him how much he should pay back: it gives him the final say.

It is not clear that a court ruling telling Zuma that he must do what Madonsela’s report on Nkandla said he should do would change anything. The report’s list of "remedial actions" would allow the government to implement every one without suffering harm. Even if, for example, Zuma decides to repay 5% of the cost, this could be held to be consistent with the recommendation that he pay a "reasonable percentage".

The report’s recommendations were surely limited because Madonsela knows her real power is limited, whatever formal powers the courts give her. Is it realistic to believe that, if a protector’s report told the president to resign, the head of government would meekly step down? In most democracies, not just this one, whoever was president would use lengthy delaying tactics. At worst, they might close down the office and scrap that clause of the constitution.

So the "attractive" solution of a public protector heroically ordering the government to mend its ways would change far less than those who always prefer the judgments of lawyers to the uncertainties of democracy would have us believe. And it may prove dangerous to the constitution, to democracy, and to citizens seeking to hold the government to account.

In democracies, law is important but politics is decisive. It will take a political battle to tame corruption: the law can at best offer support. "Solutions" that want to replace politics rather than making it work are more likely to weaken democracy than to end wrongdoing.

Article by: Steve Friedman.
Article Source:Business Day Live

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