Sunday April 10, 2016 - Lessons
from South Africa for Sierra Leone - Accountability, the
rule of law and the supremacy of the Constitution sees
President Zuma and Parliament slammed over corporate
deception and fraud.
Recent events in South Africa
have clearly demonstrated just what can be achieved when
the tenets of democracy, the rule of law and the
separation of powers are adhered to as enshrined in the
Constitution. On Thursday March 31, 2016 the
Constitutional Court of South Africa gave its ruling
over a simmering brew of corruption charges against
President Jacob Zuma with a hard-hitting judgement which
clearly highlighted the efficacy and supremacy of the
It all started off with the opposition and the press
wanting to know just how much of the peoples' money had
been spent in a massive refurbishment of the residence
of the President. All those who were in the camp of the
President including Parliament investigated and did not
find any wrong-doing on the part of President Zuma as he
and his cronies insisted that the works carried out at
his private residence was a security upgrade needed to
keep him safe and happy and that included a swimming
pool, additional ranches and a few expensive additions
all carried by the tax payer, the people of South
The BBC carried
this bit when judgement day broke on Thursday last week
- "The highest court in South Africa has ruled that
President Jacob Zuma violated the constitution when he
failed to repay government money spent on his private
It gave the treasury 60 days to determine how much he
The ruling is a victory for the opposition, who said
they would push for Mr Zuma's impeachment.
They accuse him of using "ill-gotten wealth" to upgrade
his home with a swimming pool and amphitheatre."
South Africa has in place an oversight body known as
the Public Protector whose main function is to look at
how the country's resources are spent and if anyone,
including the President is found wanting order remedial
action so that the peoples' resources are not wasted or
stolen to satisfy personal ambitions and plans that have
nothing to do with the welfare of the state and the
people of South Africa.
The 11-person Constitutional Court was unanimous in
its decision over whether President Zuma should pay back
money spent on projects that were not security-related
and in no uncertain terms ruled that the President had
breached the Constitution - a document that is the
supreme law of the land - just as we have in Sierra
It is to be recalled that even before this ruling by
the highest court of South Africa, a body that acts as
the overall Ombudsman,
the Public Protector,
Thuli Madonsela, had ruled that the President
should pay back a part of the money that was used for
the upgrade of his private residence as some of the
expenses were not security-related. President Zuma
dismissed the orders of this Constitutionally-authorised
body tagging its role as merely advisory and that its
orders had no legal weight. A committee set up also gave
credence to the President's lack of respect for the
Public Protector. What got many in South Africa alarmed
was that the South African Parliament, dominated by the
ruling African National Congress, the ANC rubbished the
findings and orders of the Public Protector insisting
that President Zuma had no business paying back and that
all the expenses were security-related including the new
swimming pool. Indeed it was quite a stunning display of
deception and crass duplicity when journalists were
invited to a charade of a show by fire fighting officers
of how the swimming pool can become a first and front
line weapon for fighting fires at President Zuma's private
residence at Nkandla.
It is worth noting the basis on which the Public
Protector embarked on the investigation - complaints by
the public, some sections of Parliament and other
sectors and all carried in local newspapers especially
the Mail and Guardian and which led to these ending
lines in her report Security in Comfort.
"Media involvement is also an essential part of an open
and transparent state.
We are such as state
accountability and openness form part of the founding
values entrenched in section1 of our Constitution.
My office has a further responsibility under section
182(4) to be accountable to all persons and communities.
Again without the media, it would be impossible to
comply with this injunction.
“Section 195 provides for a number of important
values to guide decision-makers in the context of
public-sector employment. When, as in this case, a
responsible functionary is enlightened of a potential
irregularity, section 195 lays a compelling basis for
the founding of a duty on the functionary to investigate
and, if need be, to correct any unlawfulness through the
appropriate avenues. This duty is founded, inter alia,
in the emphasis on accountability and transparency in
section 195(1)(f) and (g) and the requirement of a high
standard of professional ethics in section 195(1)(a).”
3. “Public functionaries, as the arms of the state, are
further vested with the responsibility, in terms of
section 7(2) of the Constitution, to “respect, protect,
promote and fulfill the rights in the Bill of Rights.”
As bearers of this duty, and in performing their
functions in the public interest, public functionaries
must, where faced with an irregularity in the public
administration, in the context of employment or
otherwise, seek to redress it.
Incidentally, if the state had heeded its duty from 2009
when the media broke the story on the Nkandla Project,
it would have saved the citizens who invested trust and
taxes in the public administration millions of rand.
As a Public Protector or Ombudsman, I do not make the
rules, I simply enforce collectively agreed controls and
values that are meant to regulate the exercise of
entrusted power and resources in the state. The
Constitution says I have the power to determine right
and wrong and to take appropriate remedial action. I
have done so. Only if I was irrational can my findings
the Auditor-General as Guardian of Sierra
Leone's Economic Security has the duty to highlight
anomalies in the financial accounting and the manner in
which public office holders manage the country's
resources ensuring that things are done according to
rules and regulations. The Office of the Auditor General
is set up by Constitutional provisions and hence reports
from the Auditor General are meant to be treated with
the utmost concern and seriousness that is expected of a
responsible and law-abiding government and governance
What is noticed in Sierra Leone is that most
of the findings of the Auditor General are routinely
ignored to the extent that the Auditor General in a
recent report noted -
"Section 119 of the Constitution of Sierra Leone
mandates the Auditor General to audit the Public
Accounts of Sierra Leone and all public offices,
including the Courts, the accounts of the Central and
Local Government Administration, of the university and
public institutions of like nature, statutory
corporation, company or other body and organisation
established by an Act of Parliament or statutory
instrument or otherwise set up partly or wholly out of
public funds shall be audited and reported by or on
behalf of the Auditor General.
We are a leading agency promoting excellence and
accountability in Sierra Leone and strive to be
proactive in ensuring value for money for public funds.
Acting in a professional, ethical and transparent manner
we audit and report on the stewardship provided by the
government over expenditure and all moneys received -
whether from taxpayers, donors or others.
independent professional standards-driven audits we
establish to a level of audit assurance that public
moneys are used by the government in the manner intended
We assess how they are used in terms of
economy, efficiency and effectiveness and the quality of
reporting on these activities in terms of clarity,
fairness, accuracy and transparency. We report to
Parliament in the first instance but also to the
citizenry of Sierra Leone and other stakeholders.
Parliamentarians, Ministers and public sector managers
at all levels need to provide leadership by not
accepting grand or even petty corruption as normative.
Those in a position to do so should expose and report
corruption at every opportunity and follow the money
when things go wrong.
As citizens, none of us should
ever accept fiduciary irresponsibility from those
charged with holding the strings of the public purse. To
do so is morally corrosive, erodes our civic rights and
damages our hard-won young democracy.
power as was demonstrated when my report on the
Management of Ebola Funds was published earlier this
year. The findings, widely publicized in the global
media and through public hearings of PAC proceedings,
engaged and enraged the people and, for the first time
in Sierra Leone, a parliamentary committee brought
public officials to book and levied serious sanctions."
The Constitutional Court ruling in South Africa shows
that bodies set up by Acts of Parliament do have
authority to act on behalf of citizens and to bring to
the fore reports and concerns of the public when it
comes to matters affecting the governed.
The ruling lambasted Parliament and
the Committee set up to look into the Public Protectors
report for their dare in stating that the security
upgrades were in order and that President Zuma was not
in any way required to pay back a part of the money
spent on upgrading his private residence.
Faced with the unanimous decision of
the 11-person Constitutional Court, the arrogance of
President Zuma took a heavy blow, saw how wrong he'd
been in trying to ignore the findings of the Public
in a speech on
April 1, 2016 admitted that he was in the wrong.
"We have well-established institutions that support
democracy and which protect the rights of our citizens.
These include the Chapter 9 institutions, the Office of
the Public Protector, the South African Human Rights
Commission, the Office of the Auditor-General, the
Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities
and the Commission for Gender Equality.
Our Constitution also establishes a democratic
parliament. I respect the role of parliament to hold the
Executive to account as true representatives of our
people, representing, as it does different voices, views
Guided by the Constitution, we have an independent
judiciary which is a trusted final arbiter in disputes
Yesterday, the Constitutional Court of the Republic,
playing this crucial role, issued a judgement on the
matter of security upgrades at my private residence in
I welcome the judgement of the Constitutional Court
The judgement has underscored the values that underpin
our hard-won freedom and democracy, such as the rule of
law and the accountability of public office bearers,
while also respecting the rights of public office
bearers facing scrutiny.
The judgement has further strengthened our
constitutional democracy and should make South Africans
proud of their country’s Constitution and its strong and
This is a ground-breaking judgement with regards to the
powers of the Public Protector.
I wish to thank the Court for providing clarity which
will have a positive impact on other Chapter 9
institutions as well with regards to their work.
The Constitutional Court has ruled that the remedial
actions of the Public Protector are binding, and that
anyone wishing to challenge the remedial action can only
do so through a review by a court of law.
The Court has also ruled that the remedial actions with
regards to six features of the Nkandla project must be
This entails the National Treasury establishing a
reasonable proportion of the reasonable costs of each
item to be paid by the President.
I respect the judgement and will abide by it."
This is what an independent Judiciary
is supposed to be doing in ensuring that the rule of law
and accountability are respected in the furtherance of
democratic principles as enshrined in the highest law of
the land - the Constitution.
In Sierra Leone, findings of the
Auditor General are treated with levity by both the
Judiciary and Parliament and even though quite clearly
public documents, are not acted upon by the Anti
Corruption Commission, a Constitutional body. The open
battle between the Majority Leader in Parliament one
RASS-in Bundu and Anti Corruption Chief Joseph
Fitzgerald Kamara is a shameful episode that has shown
that both bodies are more interested in protecting the
Executive and looters of state funds than abiding by
their duties as enshrined in Sierra Leone's Constitution
- the supreme law of the land.
One news outlet
had this - "In her report in 2014 titled "Secure in Comfort",
Madonsela said some features included in the
R246-million security upgrades to Zuma's Nkandla
residence were not security features. These included a
cattle kraal, chicken run, visitors' centre and pool.
But Zuma did not ‘pay back the money’, instead he
prevaricated and eventually referred the matter to his
police minister, Nathi Nhleko, who conducted his own
inquiry to establish whether he owed anything.
Nhleko produced a report which found he did not owe a
cent, which was adopted by parliament after a fractuous
debate. By then parliament had been brought to a
standstill on several occasions by the EFF.
The EFF took the matter to the constitutional court.
In February the justices of the court heard argument in
Zuma’s counsel, Jeremy Gauntlett SC,
surprised all when he abandoned Zuma’s dogged defiance
and said the president wanted to bring it to a close.
Gauntlett refered to the finding by the Supreme Court of
Appeal that remedial action prescribed by the public
protector was binding.
“It is not necessary for this court to re-plough the
furrow," he said.
Parliament was shown up during the hearing for its
finding that Zuma did not owe money.
Advocate Lindi Nkosi-Thomas, appearing for the Speaker
of the National Assembly, argued: "The public protector
cannot dictate to parliament what to do."
But when chief justice Mogoeng Mogoeng asked: "So it was
open to Parliament to effectively render the remedial
actions of the public protector void?" she conceded:
"Parliament took a wrong position."
Counsel for the EFF, Wim Trengove SC, asked the court to
go ahead and make a finding on the matter despite
Gauntlett’s concession that Zuma had to pay back the
"As far as the president is concerned, he has violated
his duty to assist the public protector. This means the
president has violated his duty to uphold his office. He
has, for nearly two years, defied the public protector,"
Constitutional law expert Pierre de Vos said of
Gauntlett’s concession: "The president obviously threw
parliament under the bus ... it was impossible, after
the president conceded, for the representative of
parliament to come with a sound argument."
In Sierra Leone only a handful of news
outlets dared carry the story of these historic events
in South Africa. Those feeding fat from the droppings of
the rat at State House fear that carrying the story
would once again focus the attention of people on the
Supreme Court ruling that the rat had the right to sack
the Vice President, a person who was elected into office
as per the Constitution even though there are clear
provisions as to the circumstances and procedures that
can lead to a Vice President losing his/her job.
This was brushed aside by the
compromised Supreme Court thus given legal credence to
what was quite clearly a violation of the Constitution
of Sierra Leone.
Sierra Leone Telegraph
stands above them all as it reported and gave this
preamble to its report on events in South Africa and
lessons for Sierra Leone.
"Political developments in Sierra
Leone may be troubling, but do not come as a surprise to
those who understand the post-colonial politics of the
country. Yet, expectations of a better way of doing
politics – based on respect for the rule of law and
constitutionality by a generation of younger politicians
– including the president and those occupying the
highest offices in the country are high.
But time and again, as recent
political events have shown in Sierra Leone, the
continuous erosion – or as many would say – substitution
of the rule of law with so called presidential executive
decisions or ‘orders from above’, is slowly diminishing
any hope of a strong and independent judiciary, and
unfettered guarantee of democratic freedoms.
Speak to supporters of president
Koroma and members of the ruling APC party, whose
political ideology is based on the idea of an all
powerful, authoritarian and revered president, you get a
sense of a presidential authority emanating not from the
country’s constitution and laws of the land, but from
the whims and caprices of those occupying State House
and their cronies.
President Koroma’s sacking of the
country’s vice president without recourse to the
Constitution, was shockingly upheld by the highest court
in the land – the Supreme Court. The frequent
bye-passing of parliament by ministers in their decision
to borrow and spend millions of dollars on unapproved
projects, and without following established procurement
rules, are authorised and sanctioned by so called
executive ‘orders from above’ – the president."