In the weeks and months to come, irrelevant technical arguments, procedural legal points, false comparisons, red herrings, shameless lies, intelligence-driven smears and innuendo will almost certainly all be deployed to try to discredit the Public Protector, her office and – most importantly – her report on the use of more than R200 million of taxpayers money to “enhance” the private home of President Jacob Zuma at Nkandla. When you cannot justify something, your only option is to either admit to wrongdoing or to attack the messenger, which is the same thing as admitting to wrongdoing. This means that all reasonable South Africans must view these attacks – when they come, as they already are – as no more than an admission of guilt on the part of those who orchestrate and sanction them.
Certain incontrovertible facts about the Nkandla scandal are very difficult to ignore or explain. These facts stand independent of the content of the alleged leaked report of the Public Protector on Nkandla.
It is beyond controversy that the people of South Africa were forced to donate more than R200 million of their money to “enhance” President Jacob Zuma’s private homestead and surrounding area, despite the fact that he already has access to no less than three well-protected and secure official residences (whose considerable upkeep South Africans already fund). In a universe in which morals and ethics are known terms, this can only be viewed as a scandalous misuse of public funds for private gain.
It is an incontrovertible fact that a president and a government who respected and cared for the people of South Africa, eager to manage their money carefully in order to do the most good with this money, would not have spent more than R200 million of taxpayers’ money on the private home of a person who – in less than six years – will again become a private citizen. Such a person would have stayed at his official residences where security was tight in order to save taxpayers money for the use of the betterment of the people of South Africa – many of whom are desperately poor and in need of assistance from the state.
It is an incontrovertible fact that the president’s private architect spearheaded this project (as the president himself admitted this in Parliament) and that some of the tax-payer funded “enhancements” at his Nkandla home (clearly visible on photographs of Nkandla that we were briefly told were illegal to publish), such as a swimming pool (renamed a “fire pool” with a cynicism that would have made the rulers in 1984 blush), a cattle kraal, a chicken coop, a visitor’s centre, an amphitheatre and houses for relatives, could not possibly be related to the security of the president.
It is an incontrovertible fact that it would be impossible for any owner of a property who is of sound mind and who regularly visited and stayed at that property while more than R200 million of construction work was carried out at that property, not to be aware of the scale of the construction (or, that the construction included the building of a swimming pool and other non-security related “enhancements” which would have made the presenters of Top Billing swoon with fake enthusiasm).
It is an incontrovertible fact that R200 million of public funds could have been used to build houses, to provide sanitation, to pay teachers’ or nurses’ salaries, to fix potholes, to fund school feeding schemes, to train police officers, to provide clean water, or to provide an array of other goods and services to the people of South Africa who need them.
It is also an incontrovertible fact that after the Public Protector finalised a provisional report, she shared it with ministers within the security cluster, providing them with a secret password. The ministers then shared this report with a several of their officials. This means that it is at least as likely that the provisional report on Nkandla was leaked by a minister or an official in the security cluster (and we do not know whether these ministers shared the report with their boss – Number 1 or his lawyers) than it is that the report was leaked by somebody in the Public Protector’s office.
As the Public Protector remarked: “We work with sensitive information for months without any leakages. It cannot be a coincidence that the so-called leaks only occur after the reports leave our offices into the hands of parties.”
It is thus an incontrovertible truth that the ANC Youth League and the SACP who are accusing the Public Protector of leaking the report have not a shred of evidence to back up this accusation and that they are in fact smearing her to turn attention away from the unpalatable facts around the misuse of more than R200 million of public funds for the private benefit of the president.
It is also an incontrovertible fact that the ANC Youth League and the SACP in the past argued (when the president was accused of taking bribes and was facing criminal charges before they were mysteriously and incomprehensibly dropped) that a person should be considered innocent until proven guilty and that no one should ever accuse a person of wrongdoing when they have no evidence to base that accusation on.
It is also an incontrovertible fact that the last time the president was in serious trouble with the law and he was facing corruption charges and the Constitutional Court decided to uphold the Constitution, thus posing a threat to the president’s long-term freedom and his political career, those who protect the president attacked the credibility of the Constitutional Court and called some of its judges “counter-revolutionary” and asked whether their powers should not be curtailed. There is therefore a pattern of failing to deal with credible accusations against the president and, instead, of doing everything to discredit those who engage with the incriminating facts in a logical and rational manner.
What we do not know (and, at this stage, we cannot know now) is what exactly the final draft of the Public Protector’s Report on Nkandla will say. For example, if it is correct that the provisional report found that the president lied to Parliament in breach of the Executive Members Ethics Act, by saying all the non-security related “enhancements” were paid for by President Zuma and his family, President Zuma and his lawyers may convince the Public Protector (through legal arguments and other less legally tenable pressures) that he was only speaking of his family’s “homes” and not of the swimming pool, the amphitheatre or the other enhancements. They may use the Bill Clinton type: “it depends what the definition of ‘is’ is” defence to argue that although misleading, the president did not actually, really and blatantly lie to Parliament but only misled it.
Or they can argue that the state paid for these “enhancements” but that the president always had the intention of asking his Gupta friends to repay the state and that technically he did not intend to lie.
But, given the known facts, it is difficult to see how – ethically and politically – this should be of much relevance. Regardless of what the final report of the Public Protector finds, all of us (including all the ministers in President Zuma’s cabinet) know in our hearts that the incontrovertible facts as set out above reveal a scandal of immense proportions and that no person with a conscience can actually justify this spending of public funds on the private house of a politician, nor the attempts by the security cluster ministers to use “national security” to try to suppress and censor the Public Protector’s report on Nkandla.
It is for this reason that I won’t be surprised if the president and his lawyers invoke section 7(9)(a) of the Public Protector Act (and perhaps will also use the intelligence services) to put pressure on the Public Protector to water down any adverse findings she might have made against the president and to try to stall the publication of the report for as long as possible – at least until henchmen have managed thoroughly to discredit the Public Protector, her office and the Nkandla report in the eyes of some gullible voters.
This section states that:
“If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.”
Of course the section does not say that this must be done only after a provisional report has been finalised. If the president, through his lawyers, already had an opportunity to comment on the evidence of wrongdoing allegedly found against him, then the section would already have been complied with. Neither does it say that the legality or even legitimacy of the report will be compromised if some aspects of a draft report leaks to the media. The alleged leaking of the report therefore has very little effect on the legal force of any final report that may be published.
But it will not be surprising if this section is used as the basis for drawn-out litigation to try to distract the public from the incontrovertible facts and to paint President Zuma as the innocent victim of a conspiracy or a plot by his enemies or (my favourite!) foreign agents and dark forces. Richard Mdluli, you are needed!
Before long we might be told that it is the media and the Public Protector who decided to build that “fire pool” at Nkandla and that they are the ones who wrote President Zuma’s remarks to Parliament in which he denied that any public funds were used for non-security related enhancements.
The attacks on the Public Protector have already started, probably in contravention of section 9 of the Public Protector Act. This section states that:
“(1) No person shall: (a) insult the Public Protector or the Deputy Public Protector; (b) in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.”
The SACP has already suggested that this section should be amended because, one assumes, the only way in which one can minimise the potential damage of adverse findings against your boss and benefactor (when it is impossible to justify the misuse of funds for the benefit of your boss) is by discrediting the person or body who made those findings. And how can one discredit that person or body if one cannot insult her and the office she holds?
In the weeks and months to come every member of President Zuma’s Cabinet should be asked at every opportunity whether – regardless of what the final report of the Public Protector may contain – they personally find the spending of R200 million of public funds on the “enhancements” of a private home morally acceptable (given that the home owner has access to no less than three official residences), whether they truly believe that the president knew nothing about this construction at his own house, whether they support the attempts to undermine the credibility of the Public Protector and her office and whether they plan to resign as cabinet ministers out of protest and if not, how they are managing to live with their consciences – if any. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.