Nkandla: the edge of a threshold

THE production of a 50-page document by Police Minister Nathi Nhleko, in which he effectively overturns the 450-odd pages Public Protector Thuli Madonsela took to arrive at her conclusion that President Jacob Zuma had unlawfully benefited from the Nkandla security upgrades, raises many profound questions of law and democratic order.
Police Minister Nathi Nhleko’s report on Nkandla, which effectively overturns the public protector’s report, raises many profound questions of law and democratic order. Picture: NTSWE MOKOENA

Police Minister Nathi Nhleko’s report on Nkandla, which effectively overturns the public protector’s report, raises many profound questions of law and democratic order. Picture: NTSWE MOKOENA

South Africans should be wary of getting carried away by big words contained in official government rebuttals; silly, video-taped obfuscations accompanied by B-grade movie music; and the unbecoming performance in Parliament by the president last week.

The Nkandla scandal is the tipping point at which SA must decide whether it is a real democracy with real accountability, or a fiefdom that has long prostrated itself at the feet of a personality cult headed by a president who believes himself to be an executive monarch.

Where members of the executive are concerned, our constitutional framework hardly envisaged a case in which the president would be the subject of negative findings by oversight bodies, such as the public protector. It, therefore, proposes that he or she would take action when such findings are made against ministers.

It is, however, silent on what should happen if the findings are against the president. The public protector’s findings in this case fall squarely in that area, and in the absence of goodwill to resolve the impasse, it seems clear that only litigation can resolve it.

The Cabinet and the public protector reportedly agreed in 2012 that this situation was untenable, but given SA’s current president, it is unlikely that there will be a voluntary resolution.

IF this matter goes to court, and this looks very likely, it will effectively be the second time during Zuma’s presidency that the courts are being asked to set limits on his discretion.

He comprehensively lost the first instalment when the Supreme Court of Appeal (SCA) and the Constitutional Court held that his appointment of Menzi Simelane as the national director of public prosecutions was irrational.

In his court papers to the SCA, Zuma had effectively contended that because he is an elected executive president, he could appoint a goat to the position if he so wished. The courts didn’t agree.

On this occasion he will be arguing for the right to ignore the recommendations of the public protector; or for his ministers to review and dismiss her recommendations if they so wished. This is exactly what Nhleko did.

The mismatch of constitutional imperatives began almost as soon as the report was released. While the public protector determined exactly what aspects of the Nkandla construction were Zuma’s undue benefit, and that Parliament merely had to determine how much the president should pay back, the African National Congress (ANC) and the president have always actively misrepresented this.

They have repeatedly said that the public protector asked the ministers to determine if Zuma should pay anything, if at all. Unsurprisingly Nhleko found that his boss should pay nothing.

There will certainly be argument about whether or not Nhleko effectively reviewed the public protector’s report, but he is likely to say he didn’t. He merely was determining what the president should pay, and, as it would happen, he found this sum to be zero.

This position has a fatal flaw in that it does not explain what is to be done with the finding that the president benefited unduly. The public protector had been very specific about the installations that constituted undue benefit. What Nhleko did was to determine that the public protector had been mistaken in her findings which, of course, is a review.

It is also likely that the supporters of the president will rely too heavily on a recent Western Cape High Court judgment, which said that the recommendations of the public protector were not binding. However, the court did not say that her findings can be dismissed, and it also emphasised that where recommendations are not to be carried out, this has to be with good, constitutionally defensible reason.

Apart from reviewing the public protector’s report, Nhleko achieved an ignominious feat. He attempted to give credence to the lie that a water reservoir could not be anything but a swimming pool, which was tackily renamed a “firepool” to attempt to fool a gullible public.

If the primary intention was anything but the leisure of the president and his family, the project would have included an above-ground water reservoir that can hold more than 100,000l of water.

THE president’s defence is also premised on another improbability that displays woeful ignorance or incongruence with the Constitution he swore to defend. Speaking in Parliament in November 2012, he stated that it was “a decision of the government” to expand so monstrously his private residence. He had apparently forgotten that he has been the head of that government since 2009.

Subtly communicated to the public with this defence is the assertion that the president had and has no agency, and whatever the decision, he would have had to acquiesce to it. If this is what he really believes, then the country may as well not have a president but a committee running it.

It is foolish to believe that a politician such as Zuma, who ascended to power on the basis of an image as a humble man of the people, would not know his neighbours were being moved, graves and all, so he could feel safe. For an avowed traditionalist such a proposition is astonishing.

Apart from the clash of perspectives over the constitutional powers of various arms of the state, there is also the profound moral question of whether the expenditure of a quarter-of-a-billion rand on the private residence of any one individual is acceptable.

While many South Africans appear to believe it is not, Zuma’s mockery of those who raise the issue shows that he thinks he deserves this expenditure, and is annoyed that anyone dares raise an objection.

The scandal is a tipping point for the ANC, too. For Zuma’s entire tenure, the party’s MPs and political infrastructure have been altered to make up for the president’s cavalier attitude towards the Constitution, as well as his many ethical shortcomings.

They have had to either look away or actively participate in the dissembling of constitutional institutions so that the public may continue to believe in the credibility of a president who no longer cares to sustain it.

SA has seen turmoil at the National Prosecuting Authority and the South African Police Service, while the ANC’s MPs and political machinery have been primed to savage the public protector at every turn. In recent months this has included spurious accusations that she was a “spy” for the US Central Intelligence Agency, which the Department of State Security earnestly announced it would investigate.

As can be expected of a smear campaign, the outcome of that investigation is unlikely to be known any time soon, if at all.

What is of importance was to put an official position out there so that SA’s only remaining credible oversight institution is headed by someone who is under investigation for, in ways and for reasons unspecified, attempting to subvert the security of the country.

Those people who wish for this massive scandal to go away unchallenged also want the public protector to be isolated, for her insistence on the correct reading of her findings to be seen as politicking, and for the public to see her as the problem.

Nkandla is as much about a disregard of the law, as it is about the brazen display of the proverbial middle finger to anyone who thinks a democracy is not a dictatorship between elections. The signs are all there.

By: Songezo Zibi

Source: Business Day Live

http://www.bdlive.co.za/opinion/2015/06/01/nkandla-the-edge-of-a-threshold

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