Since the Constitutional Court (ConCourt) judgment on the Nkandla matter, South Africans have heard many strange and wonderful interpretations of the judgment itself. The first, of course, is that President Jacob Zuma did not actually do anything wrong. In his words, it was all just ‘confusion’.
It is worth remembering that the ConCourt found the president had acted in breach of his obligations in terms of section 96 of the Constitution. This is essentially also a breach of the Executive Members’ Ethics Act, which sets out the code of conduct for members of cabinet, their deputies and the president himself.
Section 96 states clearly that: ‘Members of the cabinet and their deputy ministers may not … act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.’
There was therefore a breach that was – in the language of section 172 – ‘inconsistent’ with the Constitution. Nevertheless, these findings have been largely trivialised by the president’s supporters. Gauteng province has said that Zuma should resign, and has traditionally always broken ranks with more pliable provinces such as Free State, Limpopo, KwaZulu-Natal and Mpumalanga.
The African National Congress (ANC) Women’s League issued its usual baffling statement in support of Zuma. It was a stream of consciousness that would make James Joyce proud.
The ConCourt found that the president failed to ‘uphold, respect and defend the Constitution’ as required by section 83 of the Constitution. So it is no surprise that we have ANC members bending over backwards to distinguish between conduct which is ‘inconsistent’ with the Constitution; and conduct which ‘breached’ the Constitution. It’s all semantics, really. At the end of it all, the question is whether the conduct ascribed to the president in the ConCourt judgment is indeed conduct that the ANC feels comfortable with. Clearly, many do.
And so, the months ahead will be littered with illogic on the part of the president and his supporters as the ANC goes straight into election mode with Zuma front and centre. Despite it all, the ‘Teflon president’ recently called for a more ‘African way’ of dealing with disputes, presumably in a sideswipe at the ConCourt.
One need not wonder too much what the president actually means by those mutterings spoken to a traditional leaders’ constituency. Zuma has always shown extreme discomfort with leading a modern state undergirded by a Constitution that requires adherence to the rule of law.
Parliament also came out of the entire episode looking weak and executive-minded. Speaker Baleka Mbete, who clearly has political ambitions, is unfit to lead Parliament and is now in a situation of unparalleled conflict of interest. The ConCourt, as well as the Public Protector, found that Zuma had breached the Executive Members’ Ethics Act.
Parliament is therefore obliged in terms of section 4 of the Executive Members’ Ethics Amendment Act of 2011 to set up a committee of the National Assembly to deal with the president’s breach of the code of ethics, as outlined in the Public Protector’s report – which has now been affirmed by the highest court in the land. The problem, of course, is that all of this rests with the speaker – who has consistently appeared disinclined to hold the president to account on Nkandla.
Within the ANC, things seem equally confused. As the ANC secretary-general awaits further collation of evidence of ‘state capture’ by the Gupta family, rumours continue to swirl about ministers taking quick trips to Dubai, chief among them Cooperative Governance and Traditional Affairs Minister, David van Rooyen – who seems to have popped over for just a day. Van Rooyen also shamefully postponed a briefing on election readiness ‘indefinitely.’
That was no coincidence given the allegation of the Dubai flight and some questions as to whether he might have visited – or been summoned – by our ‘other government’, the Gupta family.
Anyone who believes that the family was leaving South Africa on a jet-plane forever must be somewhat naïve. The Guptas are simply too politically connected and have too many potential deals in the pipeline to abandon ship because of a ConCourt judgment. But, the heat is on, and corporate South Africa is also finding a voice in shutting down the Guptas from access to banking and accounting services; if a tad late.
The ANC is kicking to touch and hoping to mobilise its substantial election machinery to prove that sticking by the flawed Zuma was the right thing to do. Yet for it to think that it can paper over the cracks and dismiss the ConCourt judgment as Zuma, Mbete and Mantashe have done is short-sighted, and it’s a matter of time before Zuma will exit the stage.
But, as predicted, he will not go quietly and the end game is going to be long, drawn out and very messy.
Judith February, Consultant, Governance, Crime and Justice Division