How Zuma responds to Nkandla report is crucial

PUBLIC Protector Thuli Madonsela’s report on the security upgrades at Nkandla is a potentially defining moment in South Africa’s democratic journey. It is also an undeniably big moment for the ANC and its leadership, as it is for President Jacob Zuma and the government, and the May 7 election.

In turn, ANC secretary-general Gwede Mantashe sought to emphasise that the findings of the public protector were not legally binding as they did not emanate from a court of law.

Mantashe said the public protector, “in the main, confirms the findings of the interministerial task team report”, which was prepared by the justice, crime prevention and security cluster at the request of Public Works Minister Thulas Nxesi and was finally published in December, having previously been classified by Nxesi.

It is noteworthy that the government report was published only after Madonsela’s damning provisional report was leaked to the media. Similarly, the proclamation granting authority to the Special Investigating Unit (SIU) was promulgated only in December and its report is yet to be completed.

First, amid this confusing duplication of investigations, it must be recognised that the public protector enjoys primacy over other investigators due to the fact that her authority is derived directly from the constitution. The public protector is an institution supporting constitutional democracy in terms of chapter 9 of the constitution, which protects its independence.

Her investigation was also initiated before either of the other interventions were contemplated. It is deliberately misleading to compare the public protector’s office with that of another institution of state or to talk in terms of her work merely being “another tool”.

The interministerial task team comprised some of the very ministers who were centrally involved in the Nkandla project — a classic example of the players being asked to referee their own game. The SIU is also not an independent entity, as its head serves at the pleasure of the president and its jurisdiction is limited by the powers granted in presidential proclamations.

Second, it is disingenuous to say the public protector is not a court of law. While Madonsela’s findings constitute recommendations rather than injunctions, the moral and persuasive authority of a chapter 9 body should ensure that the government heeds the advice offered.

As the president of the country and head of the government, Zuma has a very important role now, in ensuring that the public protector’s recommendations are taken seriously and acted upon.

If he acts fast and decisively, he will show respect for the office of the public protector and for the constitution and strengthen both.

Delay and filibuster, and he will display contempt for the constitution.

So, how should he respond and what should happen next?

First, the public protector has found that Zuma has breached the Executive Ethics Code (established by the Executive Ethics Act) in that his “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”.

In many respects, this is the most important part of the whole of the Nkandla report. Madonsela found that Zuma misled parliament, but did so inadvertently.

However, she found that he “tacitly accepted the implementation of all measures at his residence and has unduly benefited from the enormous capital investment from the non-security installations at his private residence”.

This goes to the heart of the modus operandi of the Zuma administration.

To avoid responsibility and accountability, members of the cabinet tend to say that either they did not know what was going on or else relied entirely on their advisers and officials.

What Madonsela has found is that Zuma should have known and, moreover, he should have acted, and that his failure to do so when he was benefiting personally at public expense was a serious breach of the Executive Ethics Code.

This is not only a very serious finding, but probably the biggest test yet for the credibility of the ethics regime that was established during the Nelson Mandela administration to buttress the financial disclosure scheme introduced earlier for MPs.

Madonsela has also recommended that Zuma reimburse the state for some of the costs associated with non-security-related structures; the quantum to be paid and a repayment schedule must be speedily agreed with the Treasury and made public.

Zuma had 14 days to respond to parliament under the code; he simply must comply if he is to demonstrate respect for the process and for the constitution.

Parliament also has an important role to play — it is not a mere bystander in the process. The constitutional scheme is this: the public protector is established under the constitution, but appointed by the president on the recommendation of parliament. Because the public protector’s mandate is concerned with public maladministration and abuse of power, it is for the executive branch of government to respond to her recommendations.

Since the public protector does not herself have any enforcement powers, if the executive – including the president – fails to act, then it is parliament’s duty to step in, and as the executive is accountable to parliament, for it to oversee the implementation of the recommendations of the public protector.

Courageously, and despite the obvious intimidation she encountered in recent months, the public protector has played her role. Now it is for the other major institutional actors – the government, the head of the executive and parliament – to play theirs, to ensure that we do more than just pay lip service to the constitutional principles of open, accountable and responsive government.

Richard Calland is an associate professor in public law at the University of Cape Town and a member of the Advisory Council of the Council for the Advancement of the South African Constitution, on which Lawson Naidoo serves as executive director