The good and bad of taking Nkandla to the courtroom
South African President Jacob Zuma's refusal to adhere to the public protector's report means the next step can only be a court process.
‘See you in court’. That is how South African President Jacob Zuma’s recent question time ended in Parliament. Probably as good an ending as could be expected these days.
No doubt Speaker Baleka Mbete breathed a sigh of relief that she did not find herself invoking the new ‘Rule 53’, which allows a member of Parliament (MP) to be removed for ‘grossly disorderly’ (sic) conduct and then suspended for five days.
Despite the new rule, Mbete would have taken care not to invoke it too casually. So, regardless of the numerous ‘points of order!’ calls by Economic Freedom Fighters (EFF) MPs, the session was a damp squib: we were brought no closer to an acknowledgement by Zuma that he needs to pay back any money.
Zuma’s argument now seems to be that answering questions on Nkandla is ‘premature’, given that Parliament is still seized with the matter. He also, however, pointedly noted that the public protector was ‘not a judge’. This is the fallacious argument made repeatedly by Zuma and African National Congress (ANC) MPs. There now remains no doubt (if there ever was any), that Parliament’s ad hoc committee dealing with the police minister’s report, will simply do the hatchet job the executive requires, and then hope the matter will go away.
The damage that Nkandla has done to Parliament makes the arms deal debacle look like child's play |
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It seems as if the basis of the EFF’s Constitutional Court challenge will be an order to compel the president to adhere to the public protector’s recommendations. Given the ANC and Zuma’s challenge to Madonsela’s office, there must surely be a finding on the powers of the public protector; and where do those begin and end? Until the Nkandla matter, the public protector’s powers were never questioned, as government would generally implement remedial action as required even if tardy about it.
In the Nkandla matter however, the subject is the president himself, which makes the stakes substantially higher. The stakes are high specifically for those MPs who might be disinclined to take on the president and the executive and rather more minded to protect their positions.
This is not a specifically new phenomenon. If one thinks back to 2000 and the investigation into the multi-million-rand arms deal, the scene was already set then for ANC MPs to defer to the executive. In actual fact, outspoken chair of the ANC study group within the Standing Committee on Public Accounts (SCOPA), Andrew Feinstein, was removed as chair. The rest of the sorry story of the executive cover-up in relation to the arms deal is well known, and remains a festering sore on our body politic. Marikana and Nkandla have since added to that shameful lack of accountability by those in power.
After the ANC conference at Polokwane in 2007, Parliament experienced a ‘Prague Spring’ of ANC MPs, enthusiastically holding the executive to account. Of course this was short lived, and the damage that Nkandla has done to Parliament makes the arms deal debacle look a little like child’s play, even though it sowed those first seeds of undermining Parliament’s oversight role. Yet, Nkandla, and Zuma’s calculating disregard of the public protector’s office, has plunged Parliament to possibly its lowest point.
Democratic Alliance (DA) Chief Whip John Steenhuisen did well to remind Zuma of Judge Ashton Schippers’ pronouncement in the Western Cape High Court last year. Judgment in ‘The Democratic Alliance versus the SABC and others’ had been eagerly awaited, because the case required the court to adjudicate on the precise powers of the public protector.
 Julius Malema is right this time: the courts must decide on Nkandla |
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Section 182 of the constitution gives the public protector the power 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; to report on that conduct; and to take remedial action.’
No matter what EFF leader Julius Malema’s proposed case entails, the Schippers judgment remains relevant and ‘alive’. Firstly, Schippers came to the conclusion that the public protector’s remedial action was not equivalent to a court order when he said, ‘Unlike an order or decision of a court, a finding by the public protector is not binding on persons and organs of state.’
The ANC justification to ignore the recommendations of the Public Protector appears to derive from this part of the judgment. Of course, they conveniently seem to have failed to read further. The nub of the judgment is that any decision by government to disregard the public protector’s remedial action must be rational. ‘Rationality’, the court held, ‘is a minimum threshold requirement applicable to the exercise of all public power by the executive and its functionaries.’
Schippers went further to clarify precisely what he meant by this when he said: ‘The organ of state must properly consider the findings and remedial action; the process by which that decision is made, and the decision itself, must be rational, having regard to the purpose of the public protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice.’
And in case there was any doubt, he went on to say that where there is any dispute regarding the public protector’s findings or remedial action, the organ of state ‘obviously has to engage the public protector’ and ‘when an organ of state rejects those findings or remedial action, that decision itself must not be irrational.’
| The danger now is that we as citizens close the book on Nkandla, moving on to the next scandal |
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The case is still subject to the tedious appeals process by Hlaudi Motsoeneng and the SABC itself, yet it is hard to see quite how Zuma and Parliament’s ad hoc committees can justify their conduct in relation to the public protector’s report as rational in law.
In fact, the initial ad hoc committee barely engaged with Madonsela or her report at all. The recent report by the minister of police has only increased the absurd levels to which Zuma’s defenders will go to protect him.
Malema is right this time: the courts must decide. Yet, how many times have we heard those words in relation to this Presidency? While it would be a step forward for the powers of the public protector to be pronounced upon by the highest court in the land, it yet again creates that schism between the courts and elected representatives. In addition, court processes are lengthy and costly, and are not intended to pick up the pieces where democratic deliberation has failed.
Nkandla is first and foremost a political issue that the ANC itself should have held Zuma to account on. Instead, its leadership has done everything possible to distract from the core elements of wastage and excess that this presidency has come to represent.
The danger of the Nkandla issue now is that we as citizens close the book on it, moving onto the next scandal or story of high intrigue. So inured have we become to the daily tales of corruption that turning a blind eye is easy. Yet, in turning a blind eye we acquiesce to corruption. It is up to citizens to change this narrative and demand accountability through the ballot box, taking to the streets in numbers or every other means possible.
Surely, the drafters of our constitution never intended that unaccountable leaders simple laugh it off at our expense, as Zuma continues to do?
Judith February, ISS Consultant, Governance, Crime and Justice Division
