There are bigger things at stake than Nkandla


October 12 2014 at 10:43am
By Craig Dodds ( Comment on this story

The political climate is likely to get uglier unless a solution to the problem is found, writes Craig Dodds.

Nkandla is fast threatening to overtake the arms deal as the most investigated issue since 1994 – generating a plethora of official (and less official) reports in its wake, even as prospects of a resolution appear to recede.

It is already almost certain to end up before the Constitutional Court, following a parliamentary process mired in controversy from the start.Copy of 2667711

There are thus far five reports on Nkandla – those of the public protector, Special Investigating Unit, joint standing committee on intelligence and a Public Works task team, as well as President Jacob Zuma’s response to these.

Parliament’s ad hoc committee on the issue has asked a technical team to prepare a draft report for its members to consider, probably next week, before they submit a final report to the National Assembly on their findings and recommendations.

Chairman Cedric Frolick said he’d discuss extending the deadline (October 24) for the committee to complete its work.

But the committee consists of ANC members only, after the opposition parties represented on it withdrew, saying the ANC’s refusal to budge on any of the opposition proposals showed the governing party was hell-bent on producing a whitewash to exonerate Zuma.

The opposition parties are now preparing their own report, which they may release next week.

That will bring to seven the number of reports on Nkandla (if Zuma’s is included, though it’s more or less a summary of the first four).

All this comes as the country faces an economic crisis that makes the R216 million spent on Nkandla pale into insignificance.

Veteran former ANC MP Ben Turok was incredulous when he spoke to journalists this week about “the political climate”.

“Here’s the IMF reducing our growth prospects to 1.4 percent, for the fourth time, and we’re worrying about Nkandla? There’s a hell of a lot more money here that we’re going to lose,” Turok said.

“I watch the economy very carefully, and what I see is alarming… mining, manufacturing and agriculture, all three are stagnant, if not worse, all three.”

Everybody was “sick and tired” of Nkandla, Turok said.

Yet some of the institutions that are supposed to resolve situations where public money has been misspent have been rendered impotent by the political stalemate over the scandal.

Public Protector Thuli Madonsela’s report has been called into question by ANC members on the ad hoc committee, among others, and attacks on her credibility escalated this week with the delivery of a letter accusing her of “gross misconduct and incapacity” and asking Parliament to investigate and take “appropriate corrective measures”.

The Nkandla ad hoc committee has referred this submission back to Speaker Baleka Mbete, suggesting it be dealt with by the justice portfolio committee.

Meanwhile, Parliament’s report on Nkandla, following a process in which the ad hoc committee has thus far refused to call any witnesses to respond to the remaining unanswered questions stemming from the public protector and SIU’s investigations, is unlikely to satisfy anyone other than the ANC.

Frolick said this week the committee would deliberate on the draft report and, if there were “any gaps”, consider how to address them, but he would not commit to inviting any of the role players to Parliament to provide clarity.

The opposition parties’ alternative report, on the other hand, will have no formal status, having been produced outside the parliamentary process.

Chairman of the DA federal executive, James Selfe, said this week he had compiled a draft report on behalf of the opposition parties, which was being circulated for their approval.

He said he had tried to refer only to the existing reports, “particularly the parts where they concur”.

“We’re not making any assumptions – we do obviously draw some conclusions – but we’re just trying to say, on the basis of what was before that committee, this is the inescapable conclusion,” Selfe said.

One example was that Zuma had agreed, according to the public protector’s report, that he had asked for a larger cattle kraal at Nkandla and been willing to contribute to the costs, contradicting the ANC’s claims that the president was unaware of the details.

But Selfe admitted the opposition document would have no formal status and was “essentially a political report”.

The rules of Parliament do not allow for the production of minority reports.

The parties had had the option of remaining in the committee and having their views recorded in its final report, but this would have conferred legitimacy on the process, according to Selfe.

They would instead use the debate on the ad hoc committee’s report, when it is tabled for consideration by the National Assembly, to argue their case.

Given the ANC’s healthy majority, that will not change the outcome of the process, with the adoption of the ad hoc committee’s final report a foregone conclusion that, technically, will bring Parliament’s role in the matter to an end.

Waiting in the wings, however, is the probability of a Constitutional Court application by the opposition parties to have Madonsela’s remedial actions – including that Zuma should pay a reasonable portion of the costs of “non-security” items – enforced.

They are awaiting the outcome of another application, in the Western Cape High Court, relating to the enforceability of remedial actions contained in Madonsela’s report on the SABC’s appointment of Hlaudi Motsoeneng, among other issues.

It will be months, at least, before a Constitutional Court ruling settles the question at the bottom of the strife – whether Zuma must pay for some of the Nkandla costs as Madonsela said he should.

In the meantime, the “political climate” is likely to get a lot uglier, further sapping confidence in the country and its ability to focus on its economic problems.

It’s not clear at this stage how seriously the justice committee will take the complaint against Madonsela, given that a proper interrogation of the charges would involve calling her to Parliament to respond to criticisms of her report on Nkandla – something the ANC representatives on the ad hoc committee have been reluctant to do.

An inquiry into Madonsela’s fitness for office would inevitably require Parliament to pick over the Nkandla carcass yet again, just when it had tried to put the matter to rest.

But opposition parties are not going to allow it to drop off the agenda anyway, and the Concourt application will be another opportunity for them to mobilise public sympathy.

On top of that, the DA’s application for a review of the decision to drop arms-deal-related corruption charges against Zuma will add fuel to the fire in the coming months, while jockeying for position within the ANC in the lead-up to its National General Council next June will add to the noise.

The country is in for a very bumpy ride in the months to come, unless something gives in the meantime.

“People are sick and tired of the evasion of the solution. It’s a very sensitive issue which needs to be resolved,” Turok told reporters this week.

“I think all of us should try and be sensible and say, let’s find a way out. I don’t want to say he must now come and own up. I’m saying the country requires a solution. We must resolve this thing once and for all, and stop this haggling.”

Political Bureau

Protect the Public Protector

We, as a Law School, have a proud history of speaking out against violation of and threats to the rule of law. The Society of Law Teachers of Southern Africa (SLTSA) gave an undertaking to the TRC in 1997 that law schools would always protect the rule of law and  ensure that the foundational principles of our constitutional democracy not be undermined.

In order to protect institutions that have been set up to strengthen democracy, we are obliged to issue the following statement:

  1. The Constitution must be interpreted in a manner that advances the founding principles of democratic governance, accountability, responsiveness and openness.
  2. An independent, effective and functional Public Protector is vital if we are to attain this objective.
  3. Interpretations of the Constitution which advance short- term political and other parochial interests but undermine constitutional institutions cannot be countenanced.

We condemn in the strongest terms any attempt to undermine the office of the Public Protector; whether it be by members of the Executive, Members of Parliament, leading politicians or members of the public.

We wish to place on record the following:

  1. Section 181(2) of the Constitution requires the Chapter 9 institutions, which include the Public Protector and her office, to carry out their mandate ‘without fear, favour or prejudice’.
  2. Section 181(3) of the Constitution requires ‘other organs of state, through legislative and other measures to ‘assist and protect’ Chapter 9 institutions, including the Public Protector’s office, ‘to ensure the independence, impartiality, dignity and effectiveness of these institutions’.
  3. Section 237 requires all constitutional obligations to be performed diligently.
  4. The Public Protector submitted a comprehensive report after an exhaustive process into the upgrading of the Nkandla complex and concluded that the President and his family improperly benefitted and suggested remedial action.
  5. The findings of the Public Protector may only be reviewed by a court of law, and any review of her findings by the ad hoc Parliamentary committee, the MPs, the Ministerial task team, the Special Investigative Unit (SIU), an Individual Minister or any other body or person, would be contrary to the rule of law and unconstitutional.
  6.  Parliament is required to study the remedial action recommended by the Public Protector in her report in order to hold the relevant person accountable.
  7. It is not within the powers of Parliament to determine whether the Public Protector’s conclusions were correct or not.
  8. The report of the Public Protector is that of an independent constitutional institution and may not be treated as if it is of equivalent status to other reports on the Nkandla complex, compiled at the behest of the Executive or by agencies which report to the Executive.

We therefore call upon members of the Executive, the ad hoc Parliamentary committee, MPs and spokespersons for the ruling party to desist with immediate effect from making unconstitutional and ill-conceived attacks on the office of the Public Protector and her office and to implement her recommendations.

If the public would like to join the campaign to protect the public protector they can visit #tag.protect the public protector.

School of Law, University of KwaZulu-Natal,

Endorsed by the South African Law Deans Association (SALDA) and by the Society for Law Teachers in Southern Africa (SLTSA).