LEST WE FORGET
The unfinished business of the Nkandla debacle and Parliament
Those who have done wrong and those who have failed to hold them to account would prefer that we forget about their nefarious deeds and failed responsibilities, but Daily Maverick intends to remind us, lest we forget. Today, we launch a new series titled Lest We Forget in which we return to scandals, big and small, to reveal what has happened to investigations and promises of action. In this instalment, we look at Parliament and its handling of the Nkandla upgrades. Like almost nothing else, the way Parliament dealt with the saga over the (non)security upgrades at Jacob Zuma’s Nkandla rural homestead tarnished its status as the legislative sphere of the state, alongside the executive and judiciary.
In March 2016, the Constitutional Court found Parliament’s actions were “inconsistent with the Constitution” in the Nkandla debacle. In December 2017 the Constitutional Court found the House had failed to hold accountable then president Jacob Zuma. In 2018 politics shifted — and maybe the hope was for memories to fade.
In the end, the National Assembly did unanimously adopt rules to impeach a president in terms of Section 89 of the Constitution — on 22 November 2018, about 11 months after the Constitutional Court on 29 December 2017 ruled it must.
That Nkandla Take Two judgment, officially CCT76/17, came after the EFF, with the United Democratic Movement (UDM) and Cope, again approached the Constitutional Court, citing lack of action by the National Assembly to hold to account then-president Jacob Zuma.
Like almost nothing else, the way Parliament dealt with the saga over the (non)security upgrades at Zuma’s Nkandla rural homestead tarnished its status as the legislative sphere of state, alongside the executive and judiciary.
For the National Assembly to have been found to have acted in a manner “inconsistent with the Constitution”, South Africa’s supreme law, is a damning indictment on lawmakers’ conduct, given their constitutional responsibilities to hold the executive, including the president, to account, scrutinising executive action and ensuring “government by the people under the Constitution”, according to Section 42(3).
“The resolution of the National Assembly that sought to absolve the president of liability must be declared inconsistent with the Constitution and invalid and that the adoption of those outcomes amount to a failure by the National Assembly to fulfil its constitutional obligations… to hold the president accountable to ensure the effectiveness, rather than subversion, of the Public Protector’s findings and remedial action.”
That’s the unanimous 31 March 2016 Constitutional Court judgment declaring invalid the National Assembly using ANC numbers in the House to adopt a resolution that Zuma would not have to pay anything for the taxpayer-funded Nkandla upgrades — even if that’s exactly what the Public Protector said must happen.
Two years earlier, on 19 March 2014, then Public Protector Thuli Madonsela released the Secure in Comfort report, which among its remedial actions said Zuma had to repay a percentage of the costs for the non-security upgrades — the cattle kraal, chicken run, swimming (fire) pool, amphitheatre and visitors’ centre.
By the time Madonsela’s report dropped, the political manoeuvring to absolve Zuma for the taxpayer-funded Nkandla upgrades had unfolded over almost two years. It was a highly charged, acrimonious period in South African political life that not only saw personal insults hurled at Madonsela, but also smear campaigns tarring critics of Zuma and the ANC as spies.
In early November 2013, Parliament’s Joint Standing Committee on Intelligence published its special report to argue all Nkandla upgrades were for necessary security because of crime in the Nkandla area, earthquakes and the “growing trend of political assassinations”.
It was a highly unusual move by a parliamentary committee that sits behind closed doors and, with the exception of its annual report, invokes confidentiality.
On 19 December 2013, the then public works minister, Thulas Nxesi, released the government’s task team report essentially absolving Zuma — he had not asked for the Nkandla security installations — and in acknowledging procurement lapses, shifted blame to about 11 departmental officials and the architect Minenhle Makhanya.
(Court proceedings are now under way to recover about R155-million from Makhanya in court proceedings held behind closed doors over unspecified “security reasons”, possibly linked to details of the Zuma homestead.)
Some six months after the Public Protector report in September 2014, a Special Investigating Unit (SIU) report followed in the footsteps of the government’s task team findings.
By late May 2015, the then police minister, Nkosinathi Nhleko, firmly stepped into the Nkandla saga — also to absolve his Cabinet boss — with a video showing firemen in action at the swimming pool to show it was indeed a fire pool — to the tune of O Sole Mio. (WATCH: 5 best moments from Nhleko’s Nkandla report).
Amid all this, Parliament established three ad hoc committees to look at the Nkandla saga, although the first really didn’t get off the ground as it deferred to the incoming MPs after the May 2014 elections.
Ultimately, after public hearings and deliberations, a site inspection at Nkandla accompanied by cameras, notebooks and microphones, and regardless of what opposition parties said, the decision came down to absolve Zuma.
On 13 November 2014, ANC numbers in the House carried the resolution to absolve Zuma from any payment — the move that was ruled “inconsistent with the Constitution” on 31 March 2016.
Three days later, then Speaker Baleka Mbete, at a media briefing, took a technical view and focused on the Constitutional Court’s affirmation of Parliament’s right to determine its own processes and acknowledgement that it was outside judicial authority to tell Parliament how to do its job. Thus, no apology was needed for acting inconsistently with the Constitution — and her resignation was not necessary.
And while Mbete held at least one meeting with political parties represented in Parliament in her Speaker’s Boardroom, little if anything emerged. The EFF remained fuming; its demand for disciplinary steps against Zuma floundered because the president was not an MP.
Political tempers rose; even the Constitutional Court noted the tensions.
“I note the Speaker’s position that the EFF could have brought a substantive motion to establish an ad hoc committee. I do not understand why the Speaker did not provide that advice in response to the EFF’s numerous requests for a fact-finding inquiry to investigate President Zuma’s conduct,” was how EFF leader Julius Malema put it in court documents.
Meetings aside, on 5 April 2016 the DA tabled a motion of no confidence in Zuma. It was defeated by ANC numbers in the House. Ditto, the motion of no confidence on 10 November 2016.
The 8 August 2017 motion of no confidence held by secret ballot was a little closer, with 198 against, 177 for and nine abstentions. But amid the lobbying ahead of the ANC December 2017 Nasrec national conference, that vote showed at least 35 ANC MPs switched sides even though the party line — amid much talk of opposition regime change attempts — was to vote down the motion.
These motions of no confidence are important not only because they indicate how deeply enmeshed party politics are in Parliament, but also because the December 2017 Constitutional Court judgment (like others) indicted such motions, alongside question sessions in the House and ad hoc committees to probe specific issues, as key parliamentary accountability mechanisms.
But that dynamic of the political versus the constitutional remains unresolved. Certainly at Parliament. While elected public representatives swear an oath of office to “obey, respect and uphold the Constitution” — that supreme law gives Parliament the power to call any person to appear before it and to oversee and to hold accountable the executive — MPs come to the national legislature on a party political ticket.
For the political party bosses, that means the party sets the line — as Zuma told the Constitutional Court in the 2017 UDM court case for a secret ballot. Or as ANC National Chairperson Gwede Mantashe in April 2021 told the State Capture Commission, only the ANC could remove a president, not Parliament, as MPs had to toe the party line. And President Cyril Ramaphosa told commission chairperson Deputy Chief Justice Raymond Zondo the party remained foundational.
“Our political system granted by the Constitution is that of a party system… That is our system. They [MPs] don’t go represent themselves and their jacket,” said the ANC president, who self-described as “a party person” before the State Capture Commission in April.
And so as pressure ratcheted up over State Capture — politically as ANC veterans broke their silence and amid street protests, but also with the #GuptaLeaks — Parliament seemed inactive.
Following the June 2017 institutional directive to four committees to look into the claims, only the public enterprises committee followed through. Its November 2018 report is scathing about former political portfolio bosses Malusi Gigaba and Lynne Brown.
That report, with thousands of inquiry documents, was sent to the State Capture Commission, which also heard of intimidation and stalling from within the ANC parliamentary caucus.
Former Speaker Thandi Modise told Zondo in April 2021 that Parliament had to apologise for being “sleepist”, waking up late to State Capture, but that the national legislature had learnt lessons and was working.
“It’s important to ensure nothing that is in the interest of the people is derailed. No committee has an excuse for not asking pointed questions… for not summoning people,” said Modise later.
And things have gone right at Parliament. When challenged by ex-prosecution top official Nomgcobo Jiba in 2019, and more recently by Public Protector Busisiwe Mkhwebane, over steps to remove them from office, Parliament won its cases.
Modise pushed for quality nonpartisan oversight in the interests of the people of South Africa from various parliamentary platforms — programming committee meetings to Parliament’s 2021 Budget vote.
Patterns set during the Nkandla saga remain close at hand in a Parliament which ticks boxes of protocol and process, rather than quality and content, and uses ANC numbers to ram decisions through.
This is underscored, strengthened even, by the post-May 2019 election influx of former members of the executive — ministers, MECs and mayors — that the ANC deployed to Parliament. They hold key positions such as committee chairpersons, who direct how MPs work, the Chief Whip — ex-Eastern Cape public works MEC Pemmy Majodina overall is responsible for directing the ANC’s 230 MPs — and, most recently, also the National Assembly Speaker post now held by veteran minister Nosiviwe Mapisa-Nqakula.
As the saying goes, the tone is set at the top.
But, as the taxpayer-funded R215-million-plus upgrades at the presidential Nkandla private homestead all those years ago sparked widespread public outrage, so has the channelling into private pockets of millions of rands meant for the public good in the Covid-19 pandemic by a popular and trusted health minister, ex-ANC treasurer Zweli Mkhize.
Yet in June 2021, Parliament’s health committee, on the back of its ANC members, stopped scrutiny by arguing the SIU was still investigating and by invoking non-existent sub judice provisions which governing party MPs absurdly argued started when a case was laid with police.
Digital Vibes is not Nkandla. But what has unfolded signals that not all lessons have been learnt.
And while those who want to just tick boxes — let’s call it, play oversight — as happened over the years Parliament was caught in the Nkandla debacle, the Constitution sets the standard against which all lawmakers are measured
Not least of which is the lesser-known Section 237 of the Constitution: “All constitutional obligations must be performed diligently and without delay.” DM
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