As the president's interministerial committee [IMC] gathers its facts and conducts its investigations in North West, there are some objective facts that point to a problematic state of affairs in the province. The latest Auditor-General's report reveals that seven out of 22 municipalities in the province hold the dubious honour of receiving a disclaimer on their financial accounts.
In some cases, these disclaimers do not arise once or twice, but perennially — with no signs of improvement. Furthermore, 11 out of 22 municipalities in the province received qualified audits. In the Auditor-General's own words, "There is a general lack of accountability and commitment towards a clean administration."
In relation to the province itself, a number of reports indicate that a "lack of consequence management, noncompliance with legislation and a slow response by political leadership" has resulted in an irregular expenditure to the tune of R2.9-billion, up from R2-billion in 2015. Evidently, the office of the Auditor-General has been raising the flag for some time. Given the stringent methods of accountability employed by the Auditor-General, it is unlikely that section 100-induced interventions by the president will come to a different conclusion than that of the Auditor-General.
But it does provide us with the opportunity to ask critical questions about the democracy we have sought to build and maintain over the years. At the core of our democratic and constitutional values is accountability. The very purpose of the Auditor-General's office, a chapter nine institution, is to conduct critical oversight over the various spheres of the executive and to ensure government spending is used for the intended purpose.
Therefore a pertinent question ought to be what the consequences should be for someone whom the AG finds unaccountable. What must happen when public representatives are found to have no accurate instrument for accounting for public funds — or in the case of seven municipalities in North West, no credible record whatsoever in their use of public funds?
The almost instinctive retort by most analysts and political commentators is to call for the head of the political principal. In the case of North West, this manifests itself in the call for Supra Mahumapelo to be removed as premier at the very least. Proponents of this argument often make their case by linking ailing departments to misappropriation serving corrupt endeavours.
The lack of accountability cited by the AG will not be addressed by the firing of a premier, mayor or political principal, it can only be addressed demanding that the money is paid back.
The premise of the argument is often that improper expenditure may be linked to more nefarious ends like corruption, theft or fraud. So naturally, the question ought to be: if there is a reasonable suspicion from a constitutional institution that public funds are being used for nefarious ends, why has there been no reasonable action until recently?
Like the Public Protector, the AG derives its powers directly from the Constitution, and by all interpretations it is a constitutional body. This in law ought to mean that its findings have a constitutional effect, in other words, they are binding.
In characterising the role of chapter 9 institutions, the Constitutional Court held: "It is also doubtful whether the fairly handsome budget, offices and staff all over the country and the time and energy expended on investigations, findings and remedial actions taken, would ever make any sense if the [Auditor-General's] decisions were meant to be inconsequential. The constitutional safeguards in section 181 would also be meaningless if institutions purportedly established to strengthen our constitutional democracy lacked even the remotest possibility to do so."
Consequently, it can be further argued that an inability to account adequately for public funds is a not only a potential crime, pending an investigation, but also a constitutional violation. And, while it is definitely reasonable to demand consequences for such violations, it is even more important that instruments be created to ensure that the consequences are enforced by apolitical institutions. The lack of accountability cited by the AG will not be addressed by the firing of a premier, mayor or political principal; it can only be addressed demanding that the money is paid back.
To ensure this happens, we need an AG with proverbial teeth, to deal with a prima facie case of corruption expeditiously. Instead of tabling a report of unauthorised or irregular expenditure in Parliament, the AG should be able to solicit a forensic investigation in conjunction with the relevant authorities, such as the Hawks or the National Prosecuting Authority. This may be a meaningful measure to recoup public funds and create an effective instrument for accountability.
The second question which the North West saga brings to fore is the viability of provinces in general. Why do we have provinces in this current form? They are based on apartheid bantustans and often run along tribal lines in any event. While the rate of unaccountability and lack of service delivery is a major concern, there is also a systemic question that needs to be posed: are our provinces in their current form economically sustainable?
To rid our public purse of corruption we need to strengthen the guardians of the constitutional values and build a nation that is truly nonracial and nontribal.
A cursory glance at the question reveals that integration is almost impossible if provinces are preserved in their current form. At its 54th congress, the ANC decided to reiterate its Polokwane resolution on the reconfiguration of provinces. A presidential commission was meant to look at the feasibility of provinces some ten years ago.
In essence, the president's IMC may find new evidence of old information. Corruption is prevalent at all levels of government. While it may seem popular to do so, putting the premier's head on the chopping board is the easy way out.
To rid our public purse of corruption, we need to strengthen the guardians of the constitutional values and build a nation that is truly nonracial and nontribal. All of these actions are crucial elements of our constitutional vision.
As Chief Justice Mogoeng Mogoeng put it, "[We need to] make a decisive break from the unchecked abuse of state power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy."
For this reason, public office-bearers ignore their constitutional obligations at their peril.