analysisBy Judith February
It's been months since the release of Public Protector Thuli Madonsela's report into the security upgrades at President Jacob Zuma's homestead in Nkandla. The president was required to respond to the report within 14 days yet, tellingly, his final response came 148 days later.
Now it is up to Parliament to decide what to do - although African National Congress (ANC) Chief Whip, Stone Sizani, has already declared the ANC satisfied with the President's response.
Of course the failure of the president and members of cabinet to account to Parliament is not new. One can go right back to the arms deal in 1999, as well as Thabo Mbeki's stance on HIV/AIDS, to understand how Parliament's oversight role has weakened over the years. Hundreds of written Parliamentary questions remain unanswered and questions for oral reply are given short shrift - as Zuma did last week.
Yet, despite the Economic Freedom Fighters' point about substantive responses, having Parliament descend into chaos as it did last Thursday damages the institution of Parliament and its credibility.
As a forum for national debate, its rules ought to be obeyed. That is critical for the rule of law to prevail. Having said that, for President Zuma to hide behind the form of Parliament in order to evade direct questions on Nkandla, ought not to have been allowed by Speaker Baleka Mbete. One wonders which hat she wears when presiding over Parliament: that of chairperson of the ANC or, as speaker? On Thursday it appeared to be the former. Her neutrality must now seriously be called into question.
The reply skirts the key issue of the finding by the Public Protector
On the weekend, the Public Protector herself weighed in on the matter to confirm her constitutional position given her concern that the president had not in fact responded fully to her Nkandla report, as he is required to do by law. Formally, Zuma adhered to the 14-day deadline by submitting an anodyne reply saying that the matter was receiving his attention, and that he was waiting on the report of the Special Investigative Unit (SIU) into the matter.
In that reply, he seemed to give equivalence to the reports of his cluster of cabinet ministers, the Special Investigative Unit's (SIU) report and that of the Public Protector. Suggesting that a report by Zuma's own ministers into their own conduct - and that of their boss, on whom they are dependent for their jobs - has the same heft as that of an independent, constitutional body - namely the Public Protector's office - is just plain wrong.
The reply is a grand lesson in obfuscation, which certainly does not deal with the Public Protector's report in any amount of detail. In fact, the President's reply is very clear in stating that it is a response to the Joint Standing Committee on Intelligence (JSCI), the SIU investigations and the Public Protector's report. This, again, wrongly equating the three reports.
The reply skirts the key issue of the finding by the Public Protector; that he violated the Executive Code of Ethics in failing to protect public money. As with the infamous landing of the Guptas' airplane at Waterkloof airforce base, Zuma seems to be expecting everyone else to take responsibility. Everyone except for him, of course.
It is quite extraordinary that in our modern democracy, our president is surrounded by such unethical and criminally orientated people, who manage to hide from him information of matters that directly affect him. In the 'Guptagate' matter, the blame was pinned on bureaucrats and those in the South African National Defence Force who seemingly believed that they should allow the landing, but had no direct instruction to do so, it was claimed. The Guptas remain close to the president, and yet no further interrogation of vested interests, patronage and political connection happened. Of course, the one who took the 'fall' for Zuma in the Guptagate matter, Bruce Koloane, has now been richly rewarded with a diplomatic posting in the Netherlands.
It's vintage Jacob Zuma: others were responsible, and he knew little to nothing
The first seven pages of Zuma's response are largely dedicated to background information stretching back to his involvement in politics before he became president. It even goes as far back as the pre-election political violence in KwaZulu-Natal. He devotes a considerable amount of space explaining how Nkandla was developed over the years, and ironically outlines what an impoverished area the homestead is located in.
The report fails to engage with public consensus that R246 million is an obscene amount of public money to spend on a single private homestead, and tries to reframe the issue as one in which, 'The security which attaches to the President ... cannot be denigrated [sic] to narrow party-political interests... '
The very long introduction also mentions that Zuma obtained a home loan and that Nkandla is 'still subject to a mortgage.' Interestingly, the president refused to provide the Public Protector with any evidence of this mortgage and so could not find that he misled Parliament when he said the property was bonded. If Zuma had simply provided the mortgage documents, we might have been satisfied that he had indeed paid for the non security-related improvements to Nkandla, and the matter could have been put to rest once and for all.
The report continues to offer an explanation for the central role of Nkandla and that it is a place where people 'continually' seek the president's 'advice, support and counsel' and therefore security is needed.
Interestingly, Zuma admits that he 'facilitated' a meeting between government officials responsible for the security upgrades and his private architect, Minenhle Makhanya - who was already engaged in building work at the homestead - 'so that they would be appraised of the pre-existing plans.' Zuma says he received briefings 'from time to time,' but he states plainly that he was not 'intimately involved with the finer details.' And so, less than halfway through the response, one can almost smell the punch line. It's vintage Jacob Zuma: others were responsible and he knew little to nothing about the detail.
What is specifically interesting amid all the obfuscation is that Zuma states: 'Public Protector principally found that President Zuma did not mislead Parliament of violating the Executive Ethics Code when he addressed Parliament regarding the security upgrades.' The wording forces us to forget that, in fact, Madonsela had found that, '[The president's] failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code, and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.' Of course, very cleverly, Zuma has reframed the issue to be about whether he breached the Executive Code while speaking in Parliament.
The Public Protector recommended that Zuma takes steps, 'with the assistance of the National Treasury and the South African Police Service, to determine the reasonable cost of the measures implemented by the Department of Public Works (DPW) at his private residence that do not relate to security, and which include the visitors' centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool.' And also that he 'pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.'
What is most curious and probably disturbing is Zuma's passing of the buck to new Minister of Police, Nathi Nhleko, to determine whether Zuma himself is liable to pay back any money to the fiscus. Nhleko is a junior minister in the cabinet, having only recently been appointed to the position by Zuma. It will be an extraordinary test of his will to expect him to find against his boss, and ask him to reimburse the fiscus - particularly if he wanted to survive any future cabinet reshuffle.
But what is even more opaque is the request by Zuma that Nhleko take into consideration 'past practices and culture' when making his finding. This statement is problematic for a number of reasons, not least of which is that the president is subtly trying to introduce an alternative set of societal codes, which sit outside of the constitution.
At best, the president's lack of knowledge is baffling, showing a disinterest in expenditure that directly affects him. At worst it simply shows that he is inured to public opinion and quite prepared to undermine a constitutionally protected body in pursuit of his personal benefit. On Zuma's watch we have had Nkandla, Guptagate and, lest we forget, Marikana and the deaths of 13 soldiers in the Central African Republic. Surely by now the ANC should intervene to prevent further damage from being done to our institutions and our constitutional fabric.
Judith February, senior researcher, Governance Crime and Justice Division