The Constitutional Court judgment on Nkandla was a seminal moment in South Africa’s history but even that was not enough to ensure accountability from the country’s Teflon politicians. Both the ANC and Parliament are likely to shrug off the court’s finding that President Jacob Zuma and the National Assembly violated the Constitution. The only outstanding matter is how much Zuma should pay for Nkandla, which the National Treasury is close to finalising. ANC Secretary-General Gwede Mantashe has his own poisoned chalice, having to determine whether the state has been captured by the Gupta family. Both issues have repercussions for the man Mantashe and Pravin Gordhan would rather not be butting heads with. By RANJENI MUNUSAMY.
Gwede Mantashe has been extremely busy. Away from the public eye, there has been a steady stream of people going to the ANC headquarters, Albert Luthuli House in Johannesburg, to discuss allegations of state capture involving the Gupta family and their concerns following the Constitutional Court judgment on Nkandla.
The ANC national executive committee (NEC) mandated the office of the secretary-general and national working committee (NWC) to investigate the influence of the Guptas on government and Cabinet appointments. This followed an intense discussion at the March NEC about allegations that the Guptas had offered Mcebisi Jonas the post of finance minister, and also made improper approaches to former ANC MP Vytjie Mentor and former government spokesman Themba Maseko. After that NEC meeting, Mantashe issued an invitation to anyone with information on the matter to bring it to his office.
Following the Constitutional Court judgment on the public protector’s report on Nkandla, there was an uproar from civil society, struggle veterans, religious organisations, prominent South Africans and some ANC structures about President Jacob Zuma acting in violation of the Constitution. Mantashe again invited people to express their concerns to the ANC directly.
Mantashe has the unpleasant task of reporting to the NEC next weekend on the progress of these matters. Some people who have met with Mantashe and others are worried about the way forward and how their concerns and complaints will be processed. One person said they were worried about the issue of confidentiality as the matter is being handled by the “Office of the Secretary-General, not the SG himself”.
“There is no telling of what we said will be reported back to the Guptas,” he said.
Another concern was that the SG did not have any formal investigate powers so it was not clear what he would do with the information provided. “How is he going to process and verify the data? It is not clear,” said another person who provided information to the ANC on their experiences with the Gupta family.
A high-powered group of former directors-general has written to Finance Minister Pravin Gordhan and Public Service and Administration Minister Ngoako Ramatlhodi requesting that they set up a public inquiry into how senior government officials contravened laws to benefit the Gupta family. People in the group say they wanted a formal inquiry set up that would have real investigative powers and proper processing of information. They were also worried that the ANC process excluded people who were not members of the organisation or who felt uncomfortable with the purely political nature of it.
Apart from the ANC investigation being a discretionary process, there is also the danger of the evidence and findings being suppressed. There was fierce opposition from the president’s allies to the Gupta matter even being discussed at the last NEC so there is no telling what will happen to Mantashe’s report, if it is tabled. The dominant group in the NEC could argue for it to remain confidential and the findings dealt with internally.
Another problem arose in the past week. Speaking at the Gauteng ANC provincial general council last Friday, Zuma said there was no such thing as “state capture”, yet people loved using the term in soundbites for the media. “If you talk about state capture, you’re misleading people. You’re taking a small issue and making it a big issue,” Zuma said. He argued that there was no proof that the executive, the judiciary and the legislature were captured as they were all arms of the state.
By questioning the concept of state capture, Zuma was actually undermining the NEC decision and the investigation Mantashe is heading. If the ANC president has already declared that the state has not been captured by his friends, is there any chance that his organisation will contradict him? Zuma’s statement is also a slap down of the South African Communist Party (SACP), which raised serious concerns about state capture and the improper influence of the Gupta family on state affairs. It is a clear warning to the SACP to stay in their lane.
Given Zuma’s statement, will Mantashe have the mettle to take his findings, whatever they might be, to the NWC? Because both his office and the NWC were mandated to investigate the matter, the report will have to first be approved by the NWC before it reaches the NEC. It is not known when that might be. Asked during an ANC Twitter live chat on Wednesday when the report on state capture could be expected, Mantashe replied, “when it is completed”.
With regard to the Nkandla matter, it is unlikely that the ANC will take the Constitutional Court judgment or public concerns about the president’s conduct any further. The extended NWC held after the judgment decided to accept Zuma’s apology for the confusion and frustration over the Nkandla saga. The ANC has waved away calls for action against the president for violating the Constitution, saying Zuma’s apology was sufficient.
The ANC has maintained this approach in Parliament, where the Economic Freedom Fighters is demanding that disciplinary action be taken against Zuma and that he should not be allowed to address the National Assembly until then. ANC Chief Whip Jackson Mthembu said at a media briefing on Thursday that the ANC had accepted Zuma’s apology and there was nothing in the Constitutional Court judgment indicating the the president should not be allowed to address Parliament. His deputy Doris Dlakude said nowhere did the judgment state that Zuma should go.
Parliament is also likely to be dismissive of the Constitutional Court judgment. The court had found that the National Assembly acted unlawfully and inconsistently with the Constitution in its handling of Public Protector Thuli Madonsela’s report on Nkandla and failure to hold Zuma to account. It also declared invalid and set aside the resolution passed by the National Assembly absolving Zuma from compliance with the Public Protector’s remedial action.
According to a memorandum prepared by Parliament’s legal adviser Frank Jenkins, the National Assembly did not need to take any action as a result of the judgment.
“In respect of the National Assembly, the Nkandla judgment concerns the invalidity of a resolution passed by the Assembly. In the judgment the court expressly stated that it could not prescribe how the Assembly must fulfil its constitutional obligation. It neither requires the Assembly to adopt additional rules nor does it sever existing rules,” Jenkins says in his advice to Parliament.
Jenkins’ advice will now be forwarded to the Rules committee for discussion on Parliament’s response to the judgment. Based on the legal advice, Parliament is unlikely to take any further action.
The one safeguard Chief Justice Mogoeng Mogoeng inserted in his judgment was that the Treasury should report back to the Constitutional Court on how much Zuma ought to pay the state back for the Nkandla upgrades. In line with Madonsela’s report, Mogoeng said the National Treasury must determine a reasonable percentage of the cost of the non-security upgrades, “to be paid personally by the president”, and report back to the court within 60 days. Once the court approves the Treasury’s report, Zuma has 45 days to pay back the money.
With Gordhan and National Treasury already under severe political pressure, it will not be a pleasant task for them to determine what would be a “reasonable amount” for Zuma to pay back. In a statement issued on Thursday afternoon the Treasury said the work to determine this cost was “progressing well” and it would meet the deadline set by the Constitutional Court. It also undertook to make the account of its work public.
“It should be noted that the 60 days cited by the Constitutional Court refer to court days, therefore weekends and public holidays are excluded. The deadline for the National Treasury is 28 June 2016,” spokeswoman Phumza Macanda said. “The National Treasury has concluded several steps and the assessment and final report will be submitted to the Constitutional Court in due course. A detailed account of the work that has been undertaken, including the methodology followed, will be made public at an appropriate time.”
Even though the Treasury has pledged to be transparent in how it determined the amount Zuma has to pay back, it is likely that Gordhan and his department will face political heat irrespective of the amount they propose. Gordhan’s statement this week in response to reports that the Hawks were planning to arrest him rang alarm bells about his and the Treasury staff’s vulnerability with an unrelenting onslaught against them. Their having to determine a “reasonable” amount for Zuma to pay the state out of his own pocket will not assist their popularity stakes.
Both the Nkandla and state capture issues are unlikely to be dealt with in a manner that would deliver proper accountability, particularly regarding the president. Both these matters are an indictment on his judgment, his leadership and compromised his presidency.
Zuma has been able to wriggle out of responsibility for every problem and disaster he has found himself in up to now. Even though he was found to have acted illegally and inconsistently with the Constitution, and might have allowed liberties to his friends in the affairs of government for their financial benefit, there could again be no consequences for his actions.
Photo: President Jacob Zuma and ANC secretary general Gwede Mantashe (L) toast the 102nd birthday of the ANC during the launch of the party’s election manifesto at the Mbombela Stadium in Nelspruit, Mpumalanga on Saturday, 11 January 2014. Picture: SAPA stringer