Opinionista Richard Calland & Lawson Naidoo 17 September 2014

Nkandla: Anatomy of a Constitutional crisis

President Jacob Zuma’s response to the Public Protector over the Nkandla affair has plunged the country into what is arguably a Constitutional crisis. But all is not lost: it may be an excellent opportunity to test the mettle of our Constitutional institutions.

President Jacob Zuma, backed by colleagues in Cabinet and Luthuli House, has chosen to sustain his attack upon the constitutional integrity of the Public Protector.

Buried deep beneath the torrent of noise emanating from the trial verdict of a certain physically-challenged South African athlete was his latest move in what appears to be an all-out offensive against Advocate Thuli Madonsela.

Zuma’s letter to Madonsela pushes modern South Africa ever closer to its first major Constitutional crisis. But what exactly is a ‘Constitutional crisis’ and how will we know it if and when the moment comes?

Wikipedia is a dangerous animal and one that should be approached with a concomitant degree of caution. But on this occasion, it is hard to improve on its definition of a ‘Constitutional crisis’ as: “a situation that the legal system’s constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government. Often, generally speaking, a Constitutional crisis is a situation in which separate factions within a government disagree about the extent to which each of these factions hold sovereignty. Most commonly, constitutional crises involve some degree of conflict between different branches of government (e.g., executivelegislature, and/or judiciary)…”

Consider the on-going and increasingly rancorous dispute between one bit of South Africa’s system of government – the executive branch – and that of another part, the Public Protector, an institution that is established under Chapter 9 of the Constitution as one of six “State Institutions Supporting Constitutional Democracy” (the others include the Electoral Commission and the Auditor-General).

Politically the issue revolves around the personal accountability of Jacob Zuma for the ostentatious upgrades at his Nkandla residence; he is fighting to avoid having to pay back potentially tens of millions of Rands.

Legally, it is a power-play, a contest over sovereignty, within the system of government chosen by the Constitution-makers twenty years ago.

It is important to pause and reflect on that choice. The African National Congress (ANC) was at the forefront of the decision to move away from parliamentary sovereignty – a system of government that had failed to protect Black people from the extreme abuse of executive power that Apartheid represented.

Instead, to prevent such egregious and deadly abuse of power in the future, the Constitution-makers chose to put in place a number of checks and balances on executive power. We opted for a system of Constitutional democracy premised on the separation of powers between the three arms of the state, namely the executive, legislature and judiciary, in which the Constitution reigns supreme.

We added to this an additional layer of checks and balances that are necessary in a democracy, in the form of the Chapter 9 bodies. They are in part designed to entrench a rights-based culture in South Africa by protecting and promoting human rights, and ensuring clean government.

The Office of the Public Protector is one of these key checks and balances, with a specific mandate to “investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice” (section 182(1)(a) of the Constitution). It enables ordinary citizens to challenge maladministration or abuses of power that deny those rights.

It is sub-section 182(1)(c) that is now at the very centre of the dispute between the executive branch of government, supported by the leadership of the ANC, and the Public Protector. It states that the Public Protector “has the power…to take appropriate remedial action”.

The Constitutional Court has not yet been provided with an opportunity to interpret precisely what this provision means. But that day may not be far off. The president appears to be trying to argue that the Public Protector’s recommendations and findings related to “remedial action” are merely advisory and can, in effect, be second-guessed by the president and his government.

But if the constitution-makers had intended the Public Protector’s findings to be “advisory” recommendations, then surely they would have said so. Instead, they chose the words “take appropriate remedial action”. Since in most cases the remedial action will actually be implemented by the government, not by the Public Protector’s office itself, “take”, in context, must, therefore, mean, or be analogous in its meaning to, “order”.

In other words, the Public Protector has the power to order that certain action be taken. In the Nkandla case, the Public Protector ruled, specifically, that Mr Zuma should pay back a reasonable proportion of the cost of the Nkandla upgrades that should not have been borne by the public purse, and that National Treasury should determine the precise amount in consultation with the SAPS.

The president has chosen to ignore this ruling and delegate the assignment solely to his Minister of Police – Nathi Nhleko – a man, it should be remembered, who is appointed by Zuma himself and serves at his pleasure. In doing this Zuma has also fundamentally changed the Public Protector’s ruling – Nhleko is now charged with determining whether Zuma must pay at all, rather than just the quantum.

The Public Protector’s view, expressed in an affidavit she attested to in another case – the DA v SABC & Others (wherein the DA challenge the appointment of Hlaudi Motsoeneng as COO of the SABC by the Minister of Communications in flagrant disregard of the finding by the Public Protector) – that “reports issued by me, in the execution of the Constitutional mandate conferred on the institution of the Public Protector, are binding and enforceable unless set aside by order of court following a review application”.

In his letter on 9 September, Zuma wrote that “Whilst the Public Protector reports play an important role, they are, for a variety of reasons, impregnable from review. This is so in part because the findings made are arrived at without any adversarial hearing being conducted, where the investigations by their very nature evidence an adversarial dispute.”

In its context this letter makes little sense. Since part of Zuma’s argument has always been that, in fact, the Public Protector’s findings are subject to reconsideration by the executive and/or Parliament, “impregnable” was clearly not the right choice of word, as its dictionary definition is, in essence, “unconquerable”.

The president, or rather his lawyers, then distorts both law and fact. Firstly, with his point about the absence of an adversarial hearing when, in fact, he was given ample opportunity to put his side of things to Madonsela and did, in fact, do so. He was furnished with a Provisional Report for his comment for which he requested additional time.

Second, in terms of the law, he goes on to try and exploit rulings that have been made in other cases against him – most notably his unlawful appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) – where the court found that he had acted “irrationally”. In a display of legal gymnastics, Zuma then argues that it would, therefore, be irrational for him not to reconsider the findings of the Public Protector before deciding whether he should act upon them.

If the executive or Parliament were to be able to review the findings or remedial action of the Public Protector this would undermine the very independence of that office which is critical to its effective functioning. Indeed section 181(2) states explicitly that Chapter 9 bodies are “independent, and subject only to the Constitution and the law…”

So this is legal filibustering. Zuma’s legal advisors are clearly playing for time and have advised him that he can take this ‘bum point’ to put off the dreaded day when he must “pay back the money” (to use the EFF sound bite that now seems to have rather usefully as well as vividly captured the essence of the matter).

In so advising him they put the interests of the man (Jacob Zuma) before that of the office (of the president), and recklessly threaten South Africa’s Constitutional order.

What, lastly, of Parliament? How should Parliament hold the President accountable for the findings made against him by the Public Protector? Firstly, she found that he benefited from the non-security features such as the “Visitors’ Centre, cattle kraal and chicken run, swimming pool and amphitheatre, among others”. It is for this that he must reimburse the state. Madonsela also found that Zuma breached the Executive Members’ Ethics Act by failing to take appropriate action to correct any irregularities and excesses when he discovered the exorbitant costs of R65m associated with the project in December 2009. In respect of this breach the Act requires the president to report to the National Assembly within 14 days on action to be taken. As he is required to report on his own breach it is surely incumbent on Parliament to impose remedial action. The other parts of the Public Protector’s report relates to grave breaches in public procurement processes which also form the main subject of the Special Investigating Unit (SIU) report that has now been completed.

The Public Protector, like all the Chapter 9 institutions, is accountable to the National Assembly. That does not, in our view, mean that Parliament can tamper with its reports or findings. In terms of s.181 (5) of the Constitution Chapter 9 institutions “must report on their activities and performance of their functions to the Assembly at least once a year”. This accountability relates to the overall performance of its mandate, budget and administration etc. On a specific investigation and report, it is Parliament’s responsibility to support the Public Protector and ensure that the executive or organ of state – which is also accountable to Parliament – implements the remedial action that is stipulated in its reports.

Were they to fail to do so in the case of Nkandla, imposing the will of the ANC to protect its president, then the system would have failed and a Constitutional crisis would be upon us. Someone, possibly including the Public Protector herself, would have to litigate against Parliament, just as someone will have to take Zuma to court if he persists with his unlawful attempt to delegate the authority to determine the amount he should pay back to his Minister of Police.

These will be tense times, as a result. It would be best to avoid them. But we are confident that our institutions, young as they may be, are robust enough to withstand the test. And the courts will hold the line and ensure that the rule of law and the supremacy of the Constitution carries the day.

It may even prove to be a valuable exercise in strengthening the muscles of our Constitutional institutions. There is a need for composure and level heads. This moment will pass. Political leaders come and go, but the Constitution – and the principles of justice and public accountability that infuse it – will endure. DM

– Naidoo and Calland are members of the Council for the Advancement of the South African Constitution (CASAC), which Naidoo serves as Executive Director. Calland is also Associate Professor in Public Law at the University of Cape Town.


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