Don’t cocoon Zuma, Thuli tells successor

2016-11-13 06:00
Thuli Madonsela

Thuli Madonsela

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Thuli Madonsela has warned the new Public Protector not to allow herself to be the president’s protector amid revelations that she (Madonsela) is the subject of an investigation by that office.

Madonsela has been accused of unlawfully “leaking” an audio recording of her interview with President Jacob Zuma – as part of her State of Capture probe – to television broadcaster eNCA.

Zuma and the ANC have called for Madonsela’s successor, Busisiwe Mkhwebane, to investigate the matter. On Friday, Zuma told Madonsela in a statement to back off because her term had expired.

An unfazed Madonsela told City Press earlier in the week:

“I must say that the presidency should be careful about what it gets the new Public Protector to do. For her own sake, she mustn’t be put in a position where she is seen as the president’s protector.

"She has a job to do, and I think her job is to protect people. The presidency, and particularly the president, should not make it appear as if she is there to protect the president.”

She said it was well within her powers as the former holder of the position to make the interview public – which was in response to Zuma’s claims that he was not afforded an opportunity to defend himself against the allegations contained in the final state capture report.

“I don’t know about any law that is against what I did, but I will establish that from the new Public Protector. For me, when I was Public Protector, I was free to do whatever I considered proper,” she said.

“I did not want to issue a media statement where I say somebody is lying or this one is telling the truth.

“The idea was; here is the transcript, have the audio, let the people decide. Is the president justified in saying he wasn’t given an opportunity?

"The way I see it, [the released interview] helped both me and the president to state our case[s], because the audio speaks for the both of us. Let the people be the judge,” Madonsela said.

Public Protector spokesperson Kgalalelo Masibi said Mkhwebane had issued a strict directive that no further public comments should be made on the matter.

In terms of the law, only the Public Protector has powers to determine what investigative information goes public.

In the statement issued by the president, Zuma expressed his concern about Madonsela’s release of the audio.

“This conduct has serious implications with regards to ethics, confidentiality and the protection of information gathered during investigations by the office of the Public Protector.

"It is also not clear why Advocate Madonsela decided to leak only the audio recordings of the discussion with the president, despite the fact that she had interviewed several witnesses,” Zuma commented.

The ANC this week accepted Madonsela’s remedial findings for a judicial inquiry into state capture.

However, ANC secretary-general Gwede Mantashe warned that “constitutional prescripts” must be observed.

He was referring to Madonsela’s stipulation that Chief Justice Mogoeng Mogoeng must appoint the judge who will head up the commission of inquiry.

Madonsela said the ANC had interpreted the Constitution in a different way than she had.

“The interpretation that I used is informed by an understanding that there is a difference between ‘appoint’ and ‘select’.

"And I was very careful there, [in] that I left the power of the president to appoint a commission; and I controlled the selection part.

"You will know that the Constitution says nothing about how the selection process should be done, meaning it is open to be done in any way whatsoever,” she said.

“The interpretation that I have used, is consistent with the appointment of the Public Protector. The Public Protector is selected by Parliament, but appointed by the president.

"It is therefore not true that if the selection is not done by someone else, then your power to appoint has been taken away.”

While Madonsela stated in her report that the commission of inquiry be set up within 30 days from the release of the report, the process could be delayed by anyone seeking review of the report.

The president is yet to make a pronouncement on whether or not he will seek review.

Mineral Resources Minister Mosebenzi Zwane indicated last week that he would seek a review.

Madonsela said those aggrieved should push for a speedy start to the commission and not have a review.

“If I [were someone who] knew in my heart that I did nothing wrong, I honestly would want a commission of inquiry to clear my name,” she said.

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