Hectored Protector

IF PUBLIC Protector Lawrence Mushwana is correct and he cannot investigate anything involving a private individual or company, the law will have to be changed or the office abolished.

Clause 182 of our Constitution restricts his power "as regulated by national legislation - to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice".

Hence, says Mushwana, oil procurement company Imvume and the ANC are outside his mandate. Therefore he could not find anything improper in state oil company PetroSA making an advance payment of R15 million to Imvume, which in turn diverted R11 million to the ANC's election campaign. Nor could he find anything curious in PetroSA having to pump out another R15m to pay for the oil Imvume was supposed to buy.

Likewise he could not investigate who was involved in oil deals between Imvume principal Sandi Majali and the then government of Iraq. Nor could he investigate claims that a member of the state's tender evaluation committee, Riaz Jawodeen, accompanied Imvume to Iraq to get an allocation of crude oil.

Nor could he investigate claims that Imvume paid money to the brother of Deputy President Phumzile Mlambo-Ngcuka or that Imvume paid for renovations to the private residence of Social Development Minister Zola Skweyiya.

Indeed, although the Public Protector was investigating issues published by the Mail & Guardian and the Sunday Times, he did not speak to either newspaper. Nor did he speak to anyone else, it seems, who would confirm anything other than the government's version of what happened.

This begs the question: who can the Public Protector investigate? The answer is on the Protector's own website and includes "any person performing a public function" and "corporations or companies where the State is involved". What can the Public Protector investigate? "Improper prejudice suffered by the complainant or another person - ; maladministration; dishonesty or improper dealings with respect to public money; improper enrichment, (or) receipt of improper advantage."

As Business Day editor Peter Bruce points out, the R11m was still government money when Imvume paid it to the ANC. The money had been paid to Imvume to acquire oil, not votes.

M&G editor Ferial Haffajee says the Protector's report "bears all the hallmarks of a whitewash" and the M&G will testify before Parliament's minerals committee next month. The Freedom Front Plus has laid charges against Imvume and the Democratic Alliance has asked the National Prosecuting Authority to investigate "all revelations surrounding the transaction between Imvume, PetroSA and the ANC".

Almost every imaginable improper use of state funds involves a deal between somebody inside government and people or companies outside government. But our present Public Protector has defined the role so tightly he has squeezed the life out of it.

He should either demand the legal powers to investigate state and government corruption no matter who else is involved, or he should resign. We suspect he will do neither.

Honest citizens turn expectantly to the National Prosecuting Authority.