Min­is­ters don’t get con­sti­tu­tion, says Madon­sela

Weekend Argus (Saturday Edition) - - NEWS - CRAIG DODDS

MIN­IS­TERS in the se­cu­rity clus­ter were do­ing the best they could, but needed a lit­tle help in un­der­stand­ing the con­sti­tu­tion, ac­cord­ing to Pub­lic Pro­tec­tor Thuli Madon­sela.

Speak­ing a day af­ter the min­is­ters slapped a ban on the tak­ing and pub­li­ca­tion of pic­tures of Nkandla, Pres­i­dent Ja­cob Zuma’s pri­vate res­i­dence, Madon­sela said, de­spite their at­tempts to in­ter­fere with her probe of the R208 mil­lion se­cu­rity up­grades at Nkandla, she had never as­sumed that they were act­ing in bad faith.

“I’ve al­ways made as­sump­tions that peo­ple are do­ing the best they can, but they don’t seem to un­der­stand the con­sti­tu­tion that we all seek to im­ple­ment,” Madon­sela said.

She would not say whether her pro­vi­sional re­port on her in­ves­ti­ga­tion, which the min­is­ters went to court to de­lay – only to with­draw the case last week – con­tained any pic­tures of Nkandla, or whether she be­lieved the ban had any­thing to do with the re­port.

“I re­ally am not able to an­swer that, be­cause at this stage we can’t dis­close what is in our re­port.”

She con­firmed, how­ever, that as with other re­ports, this one had pic­tures on the cover and in­side pages, adding: “The state knows what the cover page looks like, and what the in­ner pages look like.”

The mes­sage that didn’t seem to be “go­ing through to the other side” was that, while it was true the ex­ec­u­tive and Par­lia­ment had the power to de­cide on mat­ters of na­tional se­cu­rity, as the min­is­ters in­sisted again on Thurs­day, this power was sub­ject to scru­tiny by her of­fice, among oth­ers.

“Just be­cause you have au­thor­ity to do some­thing doesn’t mean you have un­lim- ited power to do what­ever you want with that au­thor­ity,” she said. “You’ve got to op­er­ate within the au­thor­ity you were given, and some­body has the right to say, ‘You prob­a­bly didn’t do it right’.”

Speak­ing ear­lier dur­ing an ad­dress to a con­fer­ence on the Na­tional De­vel­op­ment Plan hosted by Stel­len­bosch Univer­sity’s School of Pub­lic Lead­er­ship, she said there was con­fu­sion “be­tween the power to make the de­ci­sion… and then the power to be held ac­count­able by an in­sti­tu­tion given the au­thor­ity to scru­ti­nise whether or not you have ex­er­cised your power within the law”.

She pointed to traf­fic of­fi­cers, who had the au­thor­ity to en­force the rules of the road.

“When he says ‘stop’, I must stop. That doesn’t mean he’s my boss, it just means he has been given the au­thor­ity to de­cide on com­pli­ance to the road traf­fic rules.”

She com­plained of what she termed “pre- con­sti­tu­tional think­ing”, which did not un­der­stand the ad­di­tional checks and bal­ances on power in­tro­duced in chap­ters 8, 9 and 10 of the con­sti­tu­tion.

Her of­fice had been “to­tally shocked”, for ex­am­ple, when a min­is­ter re­cently re­sponded to her find­ings by say­ing she dis­agreed with them “and I con­sider the mat­ter closed”.

She said if she was wrong in her find­ings, th­ese could be re­viewed only by a court.

Re­spond­ing to Po­lice Min­is­ter Nathi Mthethwa’s warn­ing that she could not use pri­vate se­cu­rity ex­perts to help de­cide whether her re­port still con­tained any se­cu­rity breaches be­cause they would not have the nec­es­sary clear­ance, Madon­sela said she had made it clear no one other than the af­fected par­ties would have sight of the pro­vi­sional re­port.

Mean­while, Cor­rup­tion Watch said in light of Pub­lic Works Min­is­ter Thu­las Nx­esi’s ad­mis­sion that work on Nkandla was marked by ir­reg­u­lar­i­ties, it noted “with con­cern” the re­liance on state se­cu­rity as a ba­sis for the min­is­ters’ chal­lenge to the re­port’s re­lease.

craig.dodds@inl.co.za

‘NO IDEA’: Thuli Madon­sela

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