In separate processes stretching over more than two years, three parliamentary ad hoc committees, plus the Joint Standing Committee of Intelligence (JSCI), a government inter-departmental task team and the police minister all concluded President Jacob Zuma had done no wrong and thus could not be held liable to repay anything of the R215 million taxpayer-funded security upgrades at his Nkandla rural homestead. So what changed? By MARIANNE MERTEN.
Now Zuma wants to repay what is objectively determined under a “simple course”, according to his office, as, you see, the president had never opposed to repaying. “To achieve an end to the drawn-out dispute in a manner that meets the public protector’s recommendations and is beyond political reproach, the president proposes that the determination of the amount he is to pay should be independently and impartially determined,” says the presidency, adding the auditor-general and National Treasury should make this determination.
The president’s move revealed in yet another late night media statement comes just days before the Constitutional Court next week Tuesday is seized with the Nkandla debacle, after the EFF, which has driven the #PayBackTheMoney demands, approached the highest court in the land to find the president had acted unconstitutionally.
There are serious questions to be asked.
The presidential proposal submitted to the Constitutional Court, now casts doubt over the civil litigation against presidential architect Minenhle Makhanya to recoup R155 million of Nkandla over-expenditure. He was identified as responsible by the Special Investigating Unit (SIU), which investigated procurement and other such violations following the required presidential proclamations.
What could have made Zuma reconsider? The past two years saw a spirited fighting off of Nkandlagate through intricate manoeuvring by the Executive and national legislative to ensure protocols are followed and the boxes ticked in an approach focused on the letter, but not the spirit, of the law. Could it have been advice that legal proceedings asked to make a finding whether Zuma’s conduct was unconstitutional, could expose the president to risk? It is at this stage pure speculation, but what if there was a court finding that the head of state, who swears an oath to uphold the Constitution, had contravened the Constitution?
Last month Zuma was critical of “low intensity law-fare”, an emerging tendency to “divert the legitimate democratic outcomes in our country”, when he delivered the ANC January 8 statement. “The party that wins elections must be given space to govern. The ANC must be given space to govern. This is a fundamental principle of democracy and is practices throughout the world,” Zuma said at the ANC’s 104th anniversary celebrations in Rustenburg, North West.
Yet the latest twists and turn in Nkandlagate, shows the crucial role of South Africa’s courts – even if the judiciary is on record saying it deeply dislikes being drawn into such disputes.
And let’s not forget the Nkandla debacle is political, central to which is the head of state’s willingness (and duty – Ed) to abide by findings from constitutional structures, regardless of levels of personal discomfort this may cause. The procurement violations and other governance transgressions are not contested in any of the plethora of Nkandla reports, and public works is on public record as taking action against implicated officials and willingness to clean up its house.
The late night presidential proposal effectively takes South Africa back to square one.
Repayment after an independent determination was what the March 2014 public protector’s Secure in Comfort report said must happen. The report said the president had “unduly benefited” and must repay a reasonable percentage of the non-security benefits – identified as the cattle kraal, chicken run, swimming pool, amphitheatre and visitors’ centre – after a determination by the SAPS and National Treasury. The report also found the president had contravened the code of conduct of his office by failing to ensure he acted “in protection of state resources”, but the report stopped short of saying he had misled Parliament.
Instead of complying with the findings by the institution established to support democracy in Chapter 9 of the Constitution, or taking the report on review to court as is permitted, the state dug into its procedural arsenal – and the ANC brought up the political rear guard.
The report was released after a long investigation, which saw Public Protector Thuli Madonsela hauled to court by the security ministers of police, defence, intelligence and defence in one of the many sideshows of Nkandlagate. When the report eventually was released, Madonsela came under sharp criticism. There was the sad spectacle, with claims of her being a spy by a deputy minister and ANC MPs linking her to the opposition DA, but also constitutionally. The functions and powers of the public protector office, established under Chapter 9 of the Constitution as a structure supporting democracy, were repeatedly and harshly questioned, to a point of being undermained.
And Zuma was one of those querying the public protector’s function and powers. “The role of the public protector is akin to that of an ombudsman and quite distinct from that of the judge,” the president wrote in August 2014 in correspondence between himself and Madonsela submitted to Parliament. “Similarly, reports emanating from a Public Protector process are not judgments to be followed under pain of a contempt order, but rather, useful tools in assisting democracy in a co-operative manner, sometimes rather forcefully.”
By then Parliament had to deal with the prickly matter. The first parliamentary ad hoc committee decided not to decide and leave it to the post-May 2014 election crop of MPs to take the matter further.
The next parliamentary Nkandla committee ensured neither Zuma nor Madonsela appeared before it, as requested by opposition parties – parliamentary committees have the power to summons anyone to appear before it – and on the back of ANC numbers in the National Assembly pushed through a report that cleared Zuma of any wrong doing, while requesting further investigations into his security.
Effectively that committee agreed with the inter-departmental task team, which blamed contractors for the Nkandla cost escalations, the JSCI report which endorsed this task team view. Into the mix came the report of the SIU report, which focused on procurement violations, government department inadequacies and the like in keeping with its mandate.
When Zuma appointed Police Minister Nkosinathi Nhleko to investigate whether [own emphasis] anything should be repaid, there was an outcry. Cabinet ministers serve at the pleasure of the president and the public protector had found the SAPS and National Treasury should determine a reasonable proportion of costs to be repaid.
Predictably, Nhleko after a three-hour presentation at Parliament in May 2015, including video footage to the background track of O Sole Mio, found there was no repayment due as even the non-security measures were actually security requirements. The ANC MPs on that third parliamentary ad hoc committee subsequently endorsed Nhleko’s report late last year – after a media-saturated visit to Nkandla – in a final push to close the book on what has become a dark and persistent cloud over South Africa’s politics and governance.
For years the ANC repeatedly found itself in a tough place to defend the taxpayer-funded security spending on Zuma’s Nkandla rural homestead, particularly amid the state’s own reports of expenditure wastages, service delivery community protests and the like. There emerged dissent in its ranks over how to deal with the repayment issue as the ANC was repeatedly accused of protecting its president, and head of state, by any means necessary.
Meanwhile, the EFF has made political hay with its “Pay back the money” campaign – including at the 2015 State of the Nation Address which erupted in violence as EFF parliamentarians were forcibly evicted – while the DA used Nkandlagate to repeatedly call for motions of no confidence, investigations and the like. Other opposition parties like the United Democratic Movement and the Freedom Front Plus did not keep quiet either.
Amid this emerged gems: Nkandla was a volatile area – not just politically, but also geographically (earthquakes) and criminally, specifically the prevalence of rape. The swimming pool became the fire pool – although the water pump is not kept on site and still would have to brought in from the local fire station – the amphitheatre was nothing but an emergency assembly point as no-one could sit on the steps due to the aloes. Of course, when the public protector investigation team visited there some time earlier, there were no such aloes.
Monday night’s presidency statement says Zuma remained “critical of a number of factual aspects and legal conclusions”, and added how the report had “specifically found no wrong doing of any kind” by Zuma. The presidency also argues the report “found no benefit for which the president could to any degree be required to compensate the state in relation to nearly all aspects of the project”, expect to say a further process should determine any possible repayment with respect to “five features”. And as the president is willing to “contribute to any increase in the value of his property, objectively determined”, according to the presidency statement.
And herein lies the rub. Another process, another delay, more playing kick-for-touch. This has been the hallmark of how government, and the governing ANC, has approached Nkandlagate and other burning problems. Manipulating and pressuring governance within a constitutional democracy and the constitutionally-established office of the public protector came under heavy pressure, it appears, that’s just the price South Africa has to pay for its politics.
In 2014 there was an election. In 2016, again, there is an election. DM
Photo: President of South Africa Jacob Zuma takes a drink as he addresses attendees during the 70th session of the United Nations General Assembly at the U.N. headquarters in New York, September 28, 2015. REUTERS/Carlo Allegri.