Parliament is a National Key Point, which means it is protected by the South African Police Service (SAPS). The inside of the National Assembly chamber, however, is protected by the Constitution of South Africa and the police have no jurisdiction over the conduct of Members of Parliament – except perhaps if EFF leader Julius Malema comes in strapped with an explosives vest. He does not need to, of course, as he has found other colourful ways to set off fireworks in Parliament.

This is Gwede Mantashe’s big problem. He wants Malema and his contingent of EFF MPs to arrested for their rowdy behaviour – he has taken to calling them “rebels” as if they working towards the forceful overthrow of the state – and would even have Parliament relocate to Gauteng so that this can happen. “The police should have acted. If you do not act against anarchists, you embolden them,” Mantashe was quoted in the Sunday Times.

Presumably, Mantashe thinks that the police in Gauteng would be much more amenable to breaking the law and violating the Constitution. Wherever Parliament is located, the Constitution remains clear that MPs cannot be arrested for anything they have uttered in the House, including screaming: “Pay back the money!”

So Mantashe’s belief that the riot police did not complete the task they were called to Parliament to perform was due to the fact that they were under the DA control in the Western Cape cannot hold true. Besides the fact that the Provincial Police Commissioner takes orders from the National Police Commissioner, Mantashe is obviously not cognisant of the parliamentary privileges that cover members of the House, whichever party they belong to.

Whoever it was who summoned the riot police on Thursday – hopefully it was some overzealous official and not the Speaker Baleka Mbete’s office – was seemingly also ignorant of the rules pertaining to parliamentary privilege, particularly while the House is in session.

The ANC caucus now wants tougher penalties for MPs ruled out of order by the Speaker, as they believe suspending people from attending sittings is not deterrent enough to prevent a recurrence of Thursday’s commotion. In all the statements the ANC has issued since the incident, there has been no call urging Zuma to answer questions more forthrightly in Parliament, or to act on Public Protector Thuli Madonsela’s recommendations on Nkandla, so that members of the opposition do not grab the opportunity to embarrass him. This would obviously be the most effective way of neutralising the EFF.

But it would seem the ANC would rather have a curbing of parliamentary privileges, the police storming the National Assembly, or Parliament relocating from the DA-controlled Western Cape rather than expecting any form of accountability from the president.

The dilemma for the ANC is that though the racket in Parliament last week has been condemned, the EFF has won some political capital for being the only party to turn the pressure on Zuma to answer the numerous pending questions on the Nkandla security upgrades. During the last term, the Democratic Alliance, under the leadership of its parliamentary leader Lindiwe Mazibuko, tried all manner of tactics to hold Zuma accountable on a number of issues. They failed. The DA’s new parliamentary leader, Mmusi Maimane, seems a lot less aggressive in his approach, and it is highly unlikely that he will enjoy any success in breaking Zuma’s evade-and-deflect strategy.

Had Malema not challenged Zuma on the hollowness of his report to Parliament on the Nkandla issue, the president would have continued to avert responsibility for the overspending on his private residence, as he has done for several years now. By focusing on the simplest and the most powerful message, the EFF, albeit in their bellicose manner, made it clear to him that an empty response was not acceptable.

Nobody should enjoy seeing the President of the Republic of South Africa standing at the parliamentary podium humiliated. It was a low moment, and the EFF’s shouting and chanting at Zuma was as assault on the Office of the President, as much as it was an attack on the person. That is not a desirable situation in a democracy where there should be respect for the institutions of the state. But over the past few days, there has been justification of the EFF’s tactics from some other political parties and commentators because all other methods to hold the president accountable have failed.

The ANC is arguing, however, that the ad hoc committee, being set up in Parliament to consider Zuma’s response to the Public Protector’s report, will still have to deliberate whether it was appropriate or not. This was the basis of their defence of Zuma in the House on Thursday, and in their statements subsequently. The ad hoc committee allows the matter to be deferred to a later date, and because the ANC has an overwhelming majority in the committee, they have the ability to contain the issue.

Then Madonsela rained on their parade.

The Public Protector wrote to the president, challenging him on the report he submitted to Parliament. The letter, sent to Zuma on Thursday, made it onto the front pages of two Sunday newspapers. Madonsela says in the letter: “I could find no indication in your report that you were responding to the contents of my report, commenting on it and were reporting to the National Assembly on the actions mat you have taken or are taking to implement the remedial action. I have also noticed that your report excludes some of my findings and remedial action.”

Madonsela has challenged in particular Zuma’s pronouncement that the Minister of Police Nkosinathi Nhleko will determine how much, if at all, is to be paid back to state for undue benefits the president received at Nkandla. In her report Madonsela said the president should pay back a reasonable percentage of the cost of the measures, determined with the assistance of National Treasury.

In her letter to Zuma, Madonsela said his response “gives an impression that you are unhappy with my finding” and gives the Minister of Police power he does not have under the law to review her decisions. “As I have already indicated, reports of the Public Protector are by law not subject to any review or second guessing by a Minister and/or the Cabinet. The findings made and remedial action taken by the Public Protector can only be judicially reviewed and set aside by a court of law,” Madonsela said.

Crucially, Madonsela says in the letter that the actions contemplated in Zuma’s response “would not augur well for expectations that the rule of law is being upheld at all levels, including at your level as the pinnacle of government. It may also encourage impunity at various levels of the state.”

The effect of Madonsela’s letter is that it points out the inadequacies and legally unsound parts of Zuma’s report before the ANC had a chance to defend and bury it. It already contradicts a statement issued by the office of the ANC chief whip Stone Sizani last week that said it was “satisfied” with Zuma’s “comprehensive response”.

The ANC is now furious with Madonsela. The ANC headquarters issued an astonishing statement on Sunday night, accusing the Public Protector of dealing with the Nkandla investigation “as a personal matter outside of the constitutional mandate of the office”.

“The letter of the Public Protector can be interpreted as undermining the parliamentary process, its authority to process the manner and its attendant competencies. It does appear that while the Public Protector has submitted her report to Parliament she has no confidence in the institution and its independence as the arm of state,” ANC spokesman Zizi Kodwa said.

“We call on the Public Protector to desist from playing into the gallery and respect other constitutional entities to fulfil their role without interference and undue pressure. We are confident that Parliament and its committees will act in the interest of public good and we do not doubt their bonafides. The extraordinary conduct of the Public Protector raises questions about her neutrality on this matter, which might undermine the credibility of her conduct or the intentions of her report,” Kodwa said.

Earlier on Sunday, the ANC chief whip’s office said it was concerned that Madonsela, “rather than respect the current parliamentary process, seems to react to political events or jumping onto political bandwagons”.

“We cannot help noting the interesting coincidence between this dramatic U-turn regarding her earlier commitment to respect the process of Parliament and Thursday’s events in Parliament,” Sizani’s office said.

The ANC’s latest pronouncements reveal newfound desperation to protect Zuma from further embarrassment after Thursday’s events. From insisting that EFF MPs should have been arrested in Parliament to the extraordinary attack on the Public Protector, it is clear that the party will resort to any means possible to prevent Zuma facing any further heat, even if those methods infringe on the Constitution and show contempt for a Chapter Nine institution.

The next frontier of battle is the ad hoc committee. The opposition parties want Zuma to appear before committee to explain his role in the Nkandla upgrades. After Madonsela’s letter exposed all the deficiencies in his written report, it is highly unlikely that Zuma would want to appear before the committee or that the ANC would allow the president to face further scrutiny.

The Nkandla issue is heading for a confrontation of epic proportions on a number of fronts. The easy way out would be for Zuma to simply comply with the Public Protector’s recommendations so that the country can move past the issue. But it seems the president and ruling party would rather contend with a constitutional crisis than have Zuma “pay back the money”.

And there will not be a second thought given to Madonsela’s warnings about the rule of law being undermined and impunity being encouraged.

A scorched-earth strategy may, and would probably work for Zuma and the ANC in the short term, as they ultimately control just about every lever of the legislative and executive power in South Africa. The problem with a scorched-earth approach, however, is that nothing much is left at the end, even if you win. Still, it appears that the ANC would be happy to undermine the very foundation of democracy it worked so hard to build – all in service to its current leader. DM

Photo:  President Zuma was set to give the closing address at the ANC’s Mangaung conference Friday before the power went out. Photo Greg Nicolson/NewsFire, Mangaung, Free State, South Africa, 20 December 2012.