No simple task to hold executive to the constitution
President and ministers went out of their way to frustrate Madonsela’s efforts, writes
NELSON Mandela was president of South Africa when the constitution was adopted. The drafters of that document and the Executive Members Ethics Act, which became law in the same period, therefore tacitly assumed that the president would never wilfully evade accountability and openness and always attempt to act in good faith and in the best interests of South Africa.
The report of the public protector, Thuli Madonsela, on the publicly funded construction project at President Jacob Zuma’s private homestead in Nkandla illustrates why this assumption may not have been correct.
The constitution created the office of the public protector to assist the executive in identifying maladministration, the abuse of state funds and the unethical behaviour of those who serve the people of South Africa in government, among other reasons.
It envisages that the executive will assist the public protector to identify actions that, if they go unchecked, will erode public confidence in our government and ultimately be to the detriment of the people of South Africa, who rely on the efficient and honest use of public funds to better their lives.
Although legislation confirms that the public protector has the status of a court of law, the findings of the public protector do not have the equivalent force of a court order.
When members of the executive attempt to evade accountability for their actions or refuse to implement the findings of the public protector, they undermine the effectiveness of this body and the constitution.
The 447 pages of the Nkandla report contain troubling evidence that Zuma and his executive attempted to frustrate the investigation into the scandal in order to dodge accountability for their actions.
It envisages that the executive will assist the public protector to identify actions that will erode confidence in our government
The minister of public works, Thulas Nxesi, wrote to Madonsela on March 22 2013 arguing that she should terminate her investigation because a government task team had investigated the matter.
“In effect,” wrote Nxesi, “an allegation or suspicion of maladministration no longer exists.”
Nxesi at first also declined to hand over documents needed by the public protector for her investigation.
The chief state law adviser, Enver Daniels, argued at a meeting with Madonsela on May 31 2013 that it was constitutionally improper for the public protector to investigate the matter.
These arguments wrongly conflate the status and legal standing of a government task team with the status and legal standing of the public protector.
Nothing in our law prevents the executive from investigating itself — but such an investigation cannot usurp the constitutional authority of the public protector.
This is so because the constitution is supreme and because an independent investigation will always have more credibility than an investigation conducted by the very executive implicated in wrongdoing.
An argument to the contrary is based on the profoundly troubling view that the executive is not always bound by the constitution and is thus sometimes above the law and the constitution.
The report also contains troubling evidence that Zuma did not fully cooperate with Madonsela’s investigation.
Between January 2013 and September 2013, Madonsela wrote to the Presidency (and, in some cases, directly to the president) on no fewer than seven occasions with a request to provide her with documentation relevant to the investigation. She received no response. After she met with Zuma on August 11 2013, he finally undertook to provide her with a written response.
He responded in October 2013 — nine months after the original request was made — in a written statement. However, as Madonsela noted in her report, “the president’s statement did not provide answers to most of the questions” given to him.
Zuma specifically declined to provide a copy of the bond he had suggested was registered on the Nkandla homestead, despite the fact that the Presidency had promised on November 20 2012 that such information would be made available to “an authorised agency or institution empowered by the law of the land”. The public protector is the only agency constitutionally empowered to receive such information, owing to its private nature.
Madonsela needed a copy of the bond to determine whether Zuma had misled parliament — in breach of the Executive Members Ethics Code — when he told that body on November 15 2012 that the government had not built a home for him, and that the “Zuma family has built its own home for its own comfort”. He intimated that a bond was helping to finance the building of the private homes at his Nkandla homestead.
After the inadequate response from the president, Madonsela again wrote to him on October 29 2013 to request a copy of the bond and that he supplies adequate answers to the questions posed to him about various aspects of his involvement in the Nkandla scandal.
As Madonsela remarks in her report, “the president’s reply is still awaited”.
Zuma’s failure to fully cooperate with Madonsela’s investigation and provide her with the requisite documents and explanations is not in accordance with the oath of office he took during his inauguration in 2009.
At the time, Zuma swore: “I will be faithful to the Republic of South Africa, and will obey, observe, uphold and maintain the constitution and all other laws of the republic.”
His failure to provide relevant documentation and answer relevant questions posed by the
It is a criminal offence to refuse to produce a document with bearing on a public protector investigation
public protector does not rise to the standard of accountability, responsiveness and openness contained in the founding values in section 1(d) of the constitution.
The failure also provides prima facie evidence that Zuma is in breach of section 11(3) of the Public Protector Act.
This section renders it a criminal offence for any person, without just cause, to refuse to produce any document in his or her possession or under his or her control that has a bearing on an investigation of the public protector.
The section also renders it a criminal offence for any person to fail to provide an adequate explanation to the public protector about matters that have a bearing on an investigation.
However, unless widespread perceptions about the politicisation of the South African Police Service and the National Prosecuting Authority turn out to be wrong, this possible breach of the act will never be investigated or prosecuted.
Madonsela’s report found that the president had acted in breach of section 2 of the Executive Members Ethics Code, which requires a member of the executive to “act in good faith and in the best interest of good governance” and to act “in all respects in a manner that is consistent with the integrity of their office or the government”.
However, section 5(a) of the Executive Members Ethics Act (assuming that the president will always act in accordance with his or her oath of office) requires the president to report to the National Assembly on what action will be taken against any member of the cabinet found to be in breach of the code.
The act thus contains a legal absurdity, because it requires Zuma to decide what action to take against himself for breaching the code of ethics. Despite the fact that Madonsela requested parliament more than three years ago to correct the act, it has not been done.
Does this mean that Zuma will never be held accountable for breaching the constitution and the law? Does it mean that, in the absence of exemplary political leadership, findings of the public protector will never lead to executive accountability as envisaged by the framers of our constitution? Not necessarily. First, the president is accountable to parliament — and section 89 of the constitution provides for the impeachment of the president by the National Assembly. This can be done when it adopts a resolution with a supporting vote of at least twothirds of its members to that effect, but only if the president is guilty of a serious violation of the constitution or the law, serious misconduct, or inability to perform the functions of office.
This section would lead to the removal of the president only if the majority party in the National Assembly decided to take action against its leader. In effect, it depends on the national executive committee of the ANC to support impeachment of its leader for bringing the party into disrepute.
If the ANC leadership fails to take action, voters have a second mechanism to hold the president and his executive to account. They can support another party in a national election to punish the governing party.
As is appropriate in a constitutional democracy, the voters will decide on May 7 whether they are prepared to hold the leader of South Africa accountable for breaching of the constitution and the law.
De Vos lectures in constitutional law at the University of Cape Town Comment on this: write to tellus@sundaytimes.co.za or SMS us at 33971 www.timeslive.co.za