Integrity must underpin our democracy

2014-04-01 10:00

Section 181(2) of the Constitution states clearly that chapter 9 institutions are independent and “subject only to the Constitution and the law”, and gives the injunction that those who serve in these offices “must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice”.

The Constitution goes further and states clearly in section 181(4) that “no person or organ of state may interfere with the functioning of these institutions”.

The accountability of these institutions is clearly stated in section 181(5), which requires the institutions to report to the National Assembly on their activities once a year.

The core and critical value of integrity is the heartbeat of these institutions and the constitutional provisions that govern them. This is true for all the institutions housed in chapter?9 of the Constitution and it is the challenge of personal values for all those who choose to serve in these institutions.

In a conversation with biographer Richard Stengel in May 1993, former president Nelson Mandela, whose inauguration we reflect upon on May 10 this year, said the following with regards to integrity: “When you are a public figure, you have to accept the integrity of other people until there is evidence to the contrary.”

These words have been of relevance and importance to me in the various incarnations I have had serving in public life in South Africa since 1999. They will always guide me, whether in public or private life spaces.

These words resonated ever more with me when I was appointed as a commissioner of the Independent Electoral Commission (IEC) in November 2011.

They have proved to be an important, clarion call in times of great challenge over the past two and a half years of active service in South Africa’s electoral management body, which enjoys a special status in our Constitution as a chapter 9 institution tasked with supporting constitutional democracy.

Our constitutional institutions comprise women and men of goodwill who serve in their individual capacity as sentient beings – bringing their own personal values, ethics and ethos to bear – as well as being part of collective structures where dialogue, argument, difference and compromise are the tools of the effort to construct robust environments.

In an election year this means, rightly so, that all our institutions – especially the IEC – are under a significant amount of scrutiny at both the level of individual commissioners as well as at the level of our collective endeavours.

While there is very little doubt the commission is ready for this year’s elections at the organisational and administrative levels (the daily heroic deeds of thousands ensure this), it remains a challenging space at the level of integrity given the matters that have been prominent in the public arena.

Personally, it has been exceptionally difficult to be in an institution where the cloud hanging over the chairperson of the commission in the wake of the PwC report threatens its institutional integrity.

I have also personally found it challenging to be party to collective decisions I have often had difficulties with from a legal perspective with the only option being to note dissent when possible.

I have very little doubt it has been equally challenging for other members of the commission to contend with my dissent on core challenges.

But this is, in essence, the challenging space where personal integrity meets compromise.

On occasion, it is possible if compromise is compatible with personal ethics. On occasion it is not.

It is an open secret the commission has confronted an unprecedented event with allegations that led to a Public Protector’s report – titled Inappropriate Moves – as well as a subsequent forensic report commissioned by the IEC in pursuance of its undertaking to uphold the Public Protector’s remedial actions, which was facilitated at the service provider level by the Treasury in securing the services of PwC.

These events contain elements of personal tragedy as well as deep and profound ethical, rule of law and constitutional questions due to the personal decisions of individuals.

Letters received by the commission from various stakeholders (ranging from trade unions to religious leaders) in the wake of the release of the final PwC report bear this out.

There is a genuine anguish about the ethical dilemma the commission finds itself in and it is one that also lives in my own heart knowing what the commission can and can’t do about it in law.

In the wake of the commission’s decision to release the forensic report, Cabinet issued a press statement on March?19 stating: “Cabinet noted the forensic report that was commissioned by National Treasury on the IEC. This follows the recommendation made in the Public Protector’s report. It has tasked the minister of home affairs to follow up on the matter and advise Cabinet.”

This paragraph appears to rest on a misunderstanding about the PwC report, which is potentially legally significant.

The commission agreed, in consultation with the chief procurement officer of the Treasury, that a forensic probe was necessary.

Due to the questions about integrity that arose, it was decided by the commission that the Treasury would select a service provider from its suite of providers to conduct this work for the commission.

A statement issued by the Treasury on March 18 affirms this: “To expedite the commissioning of the forensic investigation, the IEC asked National Treasury to draw from its panel of suppliers of forensic investigation services.

“Once completed, the report was handed over to the IEC commissioners. The decision on how best to deal with the forensic report, especially any remedial issues arising from it, is the responsibility of the IEC.”

I hold the ministers of finance and home affairs in the highest regard and have no doubt their engagement with these matters will always be mindful of section 181(4) of the Constitution now that the PwC report is squarely in the purview of the commission.

It is therefore clear that all the questions related to the PwC report will be dealt with by the commission. The commission issued a statement on March 18 to indicate this will be done after the elections.

This is a compromise, and a challenging one at that, but one I have endlessly debated.

I entered constitutional office in 2011 profoundly excited about being party to celebrating our country’s 20 years of democracy and an election where a generation of “born-free” South Africans will vote.

This excitement was all the greater after having resigned from public office in 2004. For our country I continue to harbour great excitement at this milestone.

But my heart beats anxiously at night at the questions of integrity we have had to and will continue to grapple with in the months and weeks after the May 7 elections.

Taljaard is an IEC commissioner

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