Mandate: cover up for JZ

FOUR months after the initial promise to respond to public protector Thuli Madonsela’s report, “Secure in Comfort”, President Jacob Zuma finally came around to issuing a full response on Thursday.

The delayed response was unusual. The president had 14 days to respond, during which he responded only with the promise to reply again later. And he took an inordinate length of time to do so.

He had reasoned earlier that his full response was contingent on the completion of criminal investigations by the Special Investigative Unit (SIU). This suggested that the SIU findings were material to Zuma’s response.

So, was the wait worthwhile? And could the president have responded to Madonsela’s report without the SIUs findings? And, what does the response really mean?

Contrary to Zuma’s assertion, the SIU findings added no material value to his response whatsoever. In his 20-page reply he squeezed the SIU into a slim 2½ pages, of which 1½ pages restated the SIU’s terms of reference.

Nor did the rest of the SIU section cite any new findings by the unit. In fact, the findings are similar to those of Madonsela’s , such as: “There was no compliance by departmental officials with supply chain management process... there was over-charging by at least some of the consultants... some of the contractors, suppliers or service providers who were appointed had not been vetted by the State Security Agency... ”

These so-called findings were made four months ago by the public protector.

So actually Zuma’s response to Madonsela never depended on the SIU findings. Because it is a chapter 9 institution, the findings of the public protector carry far more weight than those of the SIU. These two organs cannot be compared. Zuma knows this, but was simply employing the same strategy he has used ever since becoming president: stall and obfuscate.

He did exactly this just before the elections, appointing the inter-ministerial committee to investigate the splurge on Nkandla. Then his ministers sought to kill Madonsela’s investigation arguing that the cabinet investigation made hers unnecessary.

That argument was spurious. The inter-ministerial investigation was futile as Madonsela had already started hers and was authorised to do so by the constitution.

Having failed to kill the investigation, the ministers, after Madonsela came with her findings, equated their findings with hers.

But that didn’t work. People are not idiots. Why would anyone believe the findings of a cabinet committee into its own impropriety? Seriously!

It soon became clear that very few people were buying into that ruse. The murmurs began: “Hey... No 1 is costing us, he’s a liability.”

Comrades on the campaign trail sought to disown Zuma. Never in the electoral history of the ANC has the organisation distanced itself from its president.

Comrades became irritated at the mere mention of the president.

“Why do you have to bring up Zuma’s name now? Why, maar?” they’d protest in conversations. “Zuma is not the ANC,” they’d insist, and quickly counsel: “Just think about the history of the ANC... and Mandela.”

But, they couldn’t minimise the impact of Nkandla. The ANC took a knock at the polls.

Now Zuma is doing the same thing he attempted to do before the May 7 elections. What is supposedly a full response to Madonsela’s report is actually a non-response. He hasn’t addressed the public protector’s findings directly.

In fairness to the president, his report doesn’t even promise to do this. Rather, Zuma’s opening sentences say he has examined Madonsela’s report alongside two other reports (by the joint standing committee on intelligence and the SIU).

In a way, the president lowers one’s expectation from the very beginning of his (non-) response. And, true to that undertaking, the public protector’s report only finds mention after the half-way mark of Zuma’s document, and gets only four pages.

Here the president merely lists some of Madonsela’s findings, whilst carefully avoiding others. And there’s no attempt to engage with any of them, rather they are just listed in a bullet form. You’d think the president thought the requirement was to simply cut-and-paste Madonsela’s findings, not to respond directly.

Still, even though the document follows a familiar strategy of clouding matters, one does become somewhat puzzled as the report nears the end of what was billed as a “full-response” to “Secure in Comfort”. The second last page reaffirms the old JZ: “never take responsibility”.

Instead of answering Madonsela on whether he would pay for personal improvements on Nkandla, he defers the decision to the Minister of Police, Nathi Nhleko.

And, in doing so, the president further prescribes that Nhleko must have “regard to the legislation, past practices, culture and findings in the respective reports”.

It doesn’t take a genius to figure out Zuma’s intentions here. There’s no way Nhleko will tell his boss to pay back R20-million to the state. That will most likely cost him his job.

Poor Nhleko! Now he knows why JZ picked him for that portfolio. His mandate is to cover up for the president.

Zuma clearly does not want to face up to his own ignominy. He has the option of challenging Madonsela’s findings in court, but has evidently chosen not to do so. Instead, he has picked someone to clean up for him. Now Nhleko, like Bruce Koloana of Guptagate, must be the infamous one.

This is a tough one though, for JZ. Nhleko cannot just excuse him from reimbursing the state.

If he chooses to do so, Nhleko must explain why he thinks his ministerial authority empowers him to overturn the findings of the Public Protector.

And, he will most likely have to explain that in court as such a decision will definitely be challenged there.

And assuming this matter reaches court, there’s a very slim chance that Nhleko will be vindicated. Madonsela’s investigation was meticulous and ministers quite obstructionist with documents seemingly intentionally misplaced.

The evidence is persuasive and ministerial behaviour was unbecoming. It’s a case the State is unlikely to win should it ever get to that point.

It boggles the mind, therefore, that the president of the Republic thinks this is a plausible course of action. One can see an unpleasant ending for the ANC here, even before such a saga starts.

I doubt Luthuli House approves of Zuma’s response to Madonsela. Headquarters is intent on regaining credibility. Their recent conduct has gained them notoriety as unethical and reckless. And so, headquarters has embarked on a face-lift. Not long ago, the indefatigable new spokesperson, Zizi Kodwa, wrote glowingly about the public protector, claiming this institution as one of their proudest achievements. Kodwa also then issued what seemed to be a sincere appeal to society: “As we move South Africa forward, let the constitution which is the supreme law of the country reign supreme, let the office of the public protector continue to discharge its mandate without fear of reprisal from anyone”.

Clearly, Zuma doesn’t consider himself accountable to the public protector. He prefers the judgment of his own subordinate minister instead. And frankly, Zuma is saying he won’t pay. But he doesn’t want to tell that to the courts. Rather, he wants parliament to say it on his behalf.

Now we will have to wait to see if the lawmakers will uphold the law following Luthuli House’s march to regain high moral ground, or will they issue an official endorsement of the president’s defiance of the law.

We are at a cross-road, yet again.

Mcebisi Ndletyana is the head of the faculty of political economy at the Mapungubwe Institute for Strategic Reflection