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The judicial review of the Public Protector's report will be significant for our democracy. If Ramaphosa is to be held accountable for not declaring campaign funding, a long line of others must be held to the same standard, writes Sipho Pityana.
President Cyril Ramaphosa has done the right thing by opting for a judicial review of the Public Protector's report on funding of his "CR17" campaign.
There are just too many errors, omissions and misinterpretations to allow the Public Protector's report to pass unchallenged. And they relate not only to the president – they have profound implications for our democracy, too.
Many of the "problems" with the report have already been ventilated. Some are concerning – such as the fact that the Public Protector, having invited the president's response to her draft report, does not seem to have taken the president's detailed submission into consideration at all. Others suggest a less than honest approach – for example, the Public Protector claimed to have tried to engage with Absa over the nature of some payments, whereas Absa denies that there was any contact at all.
There are the "missing millions". And the question of whether the president – who is not, after all, a Member of Parliament – can, as the Public Protector recommends, be subjected to parliamentary disciplinary processes because he was a Member of Parliament at the time this happened. And then there is the nagging over-arching question, which is that if Ramaphosa is going to be held accountable for not declaring election campaign funding, there must surely be a very, very long line of others, including the complainants against him, who must be held to the same standard. Why have they not been touched, too?
These "problems" are many, and fundamental, and suggest a Public Protector who is not prepared to let the facts get in the way of "a good report"; a Public Protector who does not seem to understand the law, who has earned a reputation of developing reports that consistently get thrown out of court, and who – if the truth be told – is really not suited for the job.
Curiously, it is the party that vehemently argues that she lacks both credibility and competence that is now trying to persuade us to place reliance on her report.
But, as Ramaphosa suggested in his press conference last night, this may not be the time to debate whether or not we have an incompetent Public Protector. That time will surely come. No, now it is important to test the facts, assumptions and remedial action that lie at the heart of her latest report. They have profound implications for our democracy, and we must be satisfied that they are legally, morally and constitutionally correct as they will be binding unless overturned.
Transparency in party funding not sufficient
Of course, at the heart of the current public debate over funding of the CR17 campaign are two core questions which will inform how we, as a society, deal with transparency around political party funding, and around ethical "no strings attached" leadership.
Firstly: do we have sufficient transparency, in law and in practice, around political party funding (whether for elections or inter-party campaigns)?
Here, the very short answer is: No. Civil society, business and other formations have long argued that we need far greater transparency over who funds political parties – and what they may get in return – to safeguard our democracy. It has been the political parties themselves that have been opposed to this.
Until now, the dominant view has largely been that this should apply to how political parties, as entities, raise funds. But the CR17 campaign has made it clear that we also need greater transparency inside political parties around how they fund their internal power struggles.
Ramaphosa is not the only party leader to have fought an internal election campaign, and we may all be better off if we knew who his funders were, who funded Nkosazana Dlamini-Zuma's counter-campaign, who bankrolled Mmusi Maimane's rise to leadership within the DA, who funded Terror Lekota's internecine battles with Mbhazima Shilowa, and so on.
At the heart of it all must be safeguarding our democracy from being bought and sold by buying powerful political parties. After all, that's what the Zondo commission is about, at least in part.
Did Ramaphosa commit ethical fraud?
Secondly: is the Public Protector correct to assert that Ramaphosa should have known who donated funds to his campaign, and in doing so committed an ethical fault?
Although the president has been quite adroit at dealing with specific questions on where funding came from (and how much), he made it very clear in his Sunday night press conference that his campaign team specifically ensured he did not know where the funding was coming from.
If we are to give him the benefit of the doubt on this, it suggests it was done precisely to ensure that he was not obliged to return any favours to funders if he won the campaign. In other words, this was done to ensure there were no strings attached to the funding.
What this means is that there was a deliberately-built Chinese wall to prevent any perceptions of undue influence and avoid any compromised relationships as a result of such funding.
Shouldn't we be welcoming this rather than condemning it? Yes, we should, but I certainly would have preferred that he insisted to know, in light of the toxic relationship between money and politics at the time.
Some may argue that where a leader is in the know about the details of all her or his funders, a campaign slush-fund is created and the leader feels some sort of moral obligation to "pay it back". Scratch my back and I'll scratch yours…
This begs another question: if Ramaphosa didn't know who was funding his campaign, how was he expected to declare it? So if he didn't know, and couldn't declare, how can he be in ethical breach for non-declaration?
But we'll have to let the courts work that out, along with some of the Public Protector's other leaps of "logic".
It may sound like splitting hairs, but these are fundamental questions for a country that has been ruined by years of cloak-and-dagger deals, backhanders and rampant corruption. Particularly when it is no secret that many of those with their hand in the till were actively involved in funding some of the ANC's internal battles, and still seem to have a hand in them today.
The judicial review of the Public Protector's report is going to be of real significance for our democracy. It will obviously test the current incumbent's ability to protect the public interest, and to provide reports and findings which can stand judicial rigour. That, in itself, is important – particularly given the Public Protector's track record to date.
But beyond that, this entire saga will hopefully enable the courts to pronounce on some crucial issues relating to transparency in political party funding, ethical leadership, accountability and how to avoid the toxic nexus that can develop between wealthy private funders and people in public or political office.
- Sipho Pityana is a businessman. He writes in his personal capacity.
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