Nkandla report underlines drift from constitutional duty
The public protector’s findings, and standing, demand respect, writes Karthy Karthy Govender Govender
THE public protector’s report on the Nkandla project was released a few days before South Africa celebrated Human Rights Day.
This was an uncomfortable juxtaposition. Human Rights Day celebrates the promise of the constitutional dispensation and acknowledges the sacrifices and heroism that made it possible.
It reminds the present possessors of public power that they inherited a magnificent legacy of self-sacrifice in the national interest and that they swore to continue to improve the quality of the lives and free the potential of all.
The constitution demands that the primary focus of the South African state be on affirming human dignity, achieving equality and advancing human rights and freedoms.
Apartheid impoverished us in many respects and the constitution requires the systematic, coordinated and incremental improvement of the living conditions of the most marginalised in our society. It requires the government to take reasonable legislative and other measures within available resources to ensure access to housing, healthcare, food, water and social security, progressively and incrementally.
The drafters of the constitution correctly concluded that the state is best placed to deliver effectively on this promise of social upliftment and they imposed a direct, concomitant obligation on the developmental state to use its resources to address poverty and inequality meaningfully.
A few years ago, acting on behalf of the South African Human Rights Commission, I represented a young pupil who, while attending a rural school on the South Coast of KwaZulu-Natal, fell into a latrine pit. She had gone to relieve herself, slipped on the loose planks, fell into the pit and almost drowned in human excrement.
Fortunately, her screams of anguish were heard and she was rescued. She received monetary compensation, but the provincial department of education was adamant that it would take a number of years for safer and better sanitation facilities to be installed because it had a tremendous backlog of schools that still had pit latrine systems. Because of budgetary constraints, it could not remedy the situation immediately.
In case after case, the state argues that it is constrained by limited finances. In many instances, the courts have accepted that fiscal discipline is not only desirable but necessary, and as a society we have asked people like the pupil to wait and to bear with us as we work our way incrementally, in an ordered and balanced manner, in addressing the deficit that we inherited.
In addition, we assure them that there are laws that ensure that those in charge of public finances act within their delineated powers, that they use state resources efficiently, economically and effectively, and that they do not unlawfully enrich themselves.
The Nkandla report indicates just how far and egregiously we have drifted from our moral, legal and constitutional moorings. The reckless expenditure of public funds, maladministration, unlawful action and personal enrichment of the
President Jacob Zuma either has to take the public protector’s findings on review to the courts, or he has to abide by and act on the recommendations
politically connected characterised the Nkandla project.
It was as if those laws, put in place after the advent of democracy to ensure accountable and proper governance, had no relevance to the public funding of this project.
The Nkandla project, which was initially estimated at about R27-million, ballooned to some R246-million — and no one in power, including the principal beneficiary, took effective steps to rein in the profligacy of the president’s architect and his compatriots.
Particularly jarring is the conclusion that funds were diverted from other public works projects to complete the Nkandla homestead.
It seemed that the architect, who was paid very generously and is not accountable in any way to the public for his actions, was given a mandate to spend our money at his discretion and he did exactly that.
However, the architect cannot become the sacrificial lamb. For the report to be meaningful, the politicians that sanctioned the expenditure and those who benefited from it must be held accountable.
Among other recommendations, the public protector required the president to repay a portion of the amount spent on upgrades not related to security and for him to formally reprimand ministers who were guilty of maladministration.
The public protector does not have the same powers as a court of law and cannot make directly enforceable orders. However, this does not mean that the findings and recommendations have no legal consequence.
The Supreme Court of Appeal has previously warned that if this institution falters or is undermined, the nation will lose an indispensable constitutional guarantee.
It is nonsensical to create an institution, fund it with public money, require it to investigate maladministration and then permit those against whom findings have been made to simply ignore the recommendations.
Treating the recommendations with disdain will adversely and prejudicially impact the independence, dignity and effectiveness of the public protector and cannot be a constitutionally permissible option for the Presidency.
Respect for the rule of law, one of the founding values of the constitution, and the doctrine of legality require those exercising public power to act rationally. The theory is that in a constitutional democracy the exercise of public power cannot be arbitrary and without justification. This would also apply to a failure to act when action is required.
If the president does not act on the recommendations, he is constitutionally obliged to explain to us why it is rational for him to ignore the findings of an institution set up to prevent maladministration and why doing so would not undermine the effectiveness of the institution.
He would also have to explain why he chooses to act contrary to a direct constitutional obligation. President Jacob Zuma either has to take the findings on review to the courts, or he has to abide by and act on the recommendations.
We have always known that independent, competent and effective courts are indispensable to the continuation of our constitutional democracy.
We have now learnt how valuable Chapter 9 institutions such as the public protector can be in ensuring accountable and proper governance. It is thus in our interest to ensure that the independence of these bodies is not either directly or indirectly undermined, that appropriate persons are appointed to the posts and that they function in the manner envisaged by the drafters of the constitution.
Quite simply, we need them to protect us. A reason for optimism on this Human Rights Day was that the public protector, an institution that controls neither the purse nor the sword, was able to hold the highest office in the land accountable for its actions.
In the PetroSA case, the Supreme Court of Appeal found that the report of a previous public protector on allegations that millions of rands of public money was diverted from the company to the ANC through Imvume Holdings had been so scant as not to have been an investigation.
The court reminded the then public protector that the office is declared to be independent and impartial, that these words mean what they say, and “fulfilling their demands will call for courage at times”. It is most improbable that a court will find that the present public protector lacks this essential quality.