The president was remiss — will the voters be also? Pierre de Vos
The Nkandla scandal should embarrass us all, says
GOING BY THE BOOK: EFF leader Julius Malema holds up a copy of the constitution after the Nkandla judgment
ON Thursday morning, hours before the Constitutional Court handed down its momentous judgment in which it held that President Jacob Zuma had failed “to uphold, defend and respect the constitution as the supreme law of the republic”, a cashier at my local Spar asked me a question I have often been asked over the past few weeks.
“So, professor, will the Constitutional Court order the impeachment of my president?”
I hesitantly shook my head. “Only the National Assembly can ‘impeach’ the president. This decision will be taken by the politicians we voted for.”
We both looked away, suddenly embarrassed. As I awkwardly said my goodbyes and walked to my car, I wondered whether our embarrassment stemmed from the actions of our president and those who defended him, or whether we were also embarrassed on our own behalf.
Stirring passages in the unanimous Constitutional Court judgment on the Nkandla scandal, penned by Chief Justice Mogoeng Mogoeng, remind us of the weighty responsibility placed on the president by the constitution. As the court noted: “The nation pins its hopes on [the president] to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination . . . He is a constitutional being by design, a national pathfinder, the quintessential commanderin-chief of state affairs and the personification of this nation’s constitutional project.”
Unfortunately, as the judgment demonstrates, Zuma failed to live up to these lofty expectations in two distinct ways.
First, he failed to stop officials from utilising public funds to build a visitors’ centre, amphitheatre, cattle kraal, chicken run and swimming pool at his private home at Nkandla. It was, said the Constitutional Court, “self-evident” that these renovations were “unrelated to the security of the president”.
The president had a duty in terms of section 96 of the constitution not to act in any way that is inconsistent with his office, or to expose himself “to any situation involving the risk of a conflict between his official responsibilities and private interests”. He also had a duty not to use his position, or any information entrusted to him, to enrich himself.
The court confirmed (accepting the concession made by the president’s lawyers during oral argument) the findings of the public protector that the president must have known that officials would
PILLAR OF JUSTICE: The entrance to the Constitutional Court wish to please him or ingratiate themselves with him by using state funds to pay for non-security-related buildings at his private home.
“When some government functionaries find themselves in that position, the inclination to want to please higher authority by doing more than is reasonably required or legally permissible, or to accede to a gentle nudge by overzealous and ambitious senior officials to do a ‘little wrong’ here and there, may be irresistible. A person in the position of the president should be alive to this reality and must guard against its eventuation. Failure to do this may constitute an infringement of this provision.”
The president failed to appreciate this obvious fact, instead stating in May 2014: “I am not worried about Nkandla, it’s not my problem.”
The court reminded South Africans, if we needed reminding, that the usual excuses trotted out by the president and his defenders — that he was not responsible because he was not directly involved in decisions that enriched him, his family or friends — could not hold.
It was not good enough to blame others and claim he was ignorant and powerless, unable to pick up a telephone to ask why the state was building a swimming pool at his private home. The constitution expects more from a president. (Whether voters expect more from a president remains to be seen.)
Second, once the public protector found that the president’s behaviour was inconsistent with his constitutional obligations and ordered him to pay back a reasonable amount of the money with which he was unduly enriched, the president failed to do so.
Instead, the president — with the eager assistance of the National Assembly members of his own party — VINDICATED: Public protector Thuli Madonsela was frequently vilified by the president’s defenders attempted to discredit the public protector and her report by launching a parallel process spearheaded by the minister of police and attacking her.
It is, perhaps, not surprising that the president embarked on this course of action. After all, in December 2014 he had falsely remarked: “The reality is, the president did absolutely nothing wrong. There is not a single one [report] that found anything wrong that the president had done.” (Did the president truly believe that he had done nothing wrong because he lacked the ability to distinguish between right and wrong?)
The court found that this attitude and the actions taken in response to it undermined the independence, impartiality, dignity and effectiveness of the public protector in contravention of section 181(3) of the constitution.
There are important reasons why the president was not constitutionally permitted to ask the police minister to determine whether he was liable to pay for any of the features identified as non-security-related by the public protector and then to use the report concocted by the minister (a report that — once again, embarrassingly — attempted to turn an ordinary swimming pool into a “fire pool”) as a justification for not complying with the binding remedial action imposed by the protector.
If compliance with remedial action taken by the public protector were optional, very few culprits, if any, would allow it to have any effect. Every two-bit crook would ignore the findings, arguing that she merely made “recommendations”.
As the Constitutional Court wryly noted, even “mere allegations and investigation of improper or corrupt conduct against . . . powerful public office-bearers, are . . . bound to attract a very unfriendly response . . . An unfavourable finding of unethical or corrupt conduct, coupled with remedial action, will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage. It is unlikely that unpleasant findings and a biting remedial action would be readily welcomed by those investigated.”
The response by former cook and current Deputy Minister of Defence and Military Veterans Kebby Maphatsoe to the Nkandla report epitomised this attitude. Last year he suggested that the public protector was a CIA agent, remarking: “UThuli umele asitshele ukuthi ubani ihandler yakhe” (Thuli must tell us who her handler is).
Perhaps it is too optimistic to believe that those who attempt to counter proven facts and reasoned arguments with ludicrous smears and name-calling are embarrassed when they are called out by the Constitutional Court.
The court made it clear the president was permitted to ask the police minister (or anyone else) to ascertain whether the public protector’s findings were correct, but only in order to determine whether to challenge the legality of the public protector’s report in a court of law.
However, the court generously concluded that the president might have been following wrong legal advice and might therefore have acted in good faith when he refused to implement the remedial action imposed by the public protector. This ERUDITE: Chief Justice Mogoeng Mogoeng delivers the Constitutional Court verdict on President Jacob Zuma’s conduct regarding improvements to his private residence, Nkandla means that the court did not find that the president deliberately flouted the law or the constitution.
However, constitutionally, it is irrelevant whether his action was deliberate or not. It remains unconstitutional and invalid.
(Ordinary citizens may ask whether any of the president’s legal advisers will be fired for seemingly telling him what he wanted to hear instead of telling him what he needed to hear. Or are we no longer embarrassed by such behaviour?)
The manner in which some members of the National Assembly dealt with the Nkandla matter also caused embarrassment. While the assembly was duty-bound to hold the president accountable by facilitating and ensuring compliance with the decision of the public protector, it failed to do so.
Instead, it second-guessed the public protector’s findings and remedial action, thus breaching its constitutional duties.
“There was everything wrong with the National Assembly stepping into the shoes of the public protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the public protector and replacing them with its own findings and ‘remedial action’. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help.”
In other words, the court found that members of the majority party in the National Assembly — the body elected to represent the interests of voters — took the law into their own hands to protect the president who had flouted the constitution.
Given its past protection of Zuma, it is unlikely that two-thirds of the members of the National Assembly will vote to impeach him. Members do not make momentous political decisions independently from the leadership of the party they belong to. They are subjected to party discipline. Moreover, they only serve in the National Assembly because the leadership of the party has ultimately agreed for their names to appear high enough up on the par- ty’s election lists.
The job security of members of the assembly thus depends to some degree on the leadership of the party, and as long as the party leaders support the president, they will too.
I am left with an overriding question, one that each voter will probably ask for himself or herself. How should citizens respond to the embarrassment caused by the Nkandla scandal? Should citizens stick their heads in the sand in the hope that all will soon be forgotten — just as too many white South Africans stick their heads in the sand in the hope that the wrongs of apartheid past will soon be forgotten?
As I intimated to the cashier at my local Spar: ultimately the fate of the president — and the party he leads — rests not in the hands of the Constitutional Court, but in the hands of voters. Citizens use their vote either to censure or reward political behaviour. Sometimes they use their immense power wisely. Sometimes they do not.
De Vos teaches constitutional law at the University of Cape Town