Nkandla scandal: it was a simple choice between right and wrong

Dishonest or corrupt individuals (and those who defend them) often try to distract attention from their serious wrongdoing by attempting to turn a simple choice between what is right and what is wrong into a procedural question or by making technical legal arguments of a highly semantic nature. The manner in which the President and the governing party is attempting to deal with the Nkandla scandal is a textbook example of this phenomenon.

The events that led to the handing down of the Constitutional Court’s Nkandla judgment last week constitute a calamitous failure of honest and selfless leadership. Because there are many individuals whose financial or political interests are aligned with the political and financial fortunes of President Jacob Zuma and because many other individuals are, for whatever reasons (laudable or not), emotionally invested in protecting the President, the bare bones facts of the scandal tend to be forgotten or obscured.

There is an ongoing attempt to divert the attention of South Africans away from the raging and threatening fire burning in the forest (in other words, from focusing on the nature and extent of the scandal) by getting everyone to focus on the one lame leg of a centipede watching the catastrophic fire from across a large river (in other words, getting everyone to focus on procedural issues and semantic distinctions without a difference).

It may therefore be helpful – hopefully for the very last time – to describe in as clear and precise a way as possible what happened and why it goes to the heart of the President’s honesty and integrity as leader of South Africa.

In March 2014 the public protector found that President Jacob Zuma allowed himself and his family to be unlawfully “enriched” (the words used by the Constitutional Court) by not doing anything to stop the use of public funds for non-security related renovations at his private home – despite the fact that the President was aware that public funds were being abused in this manner.

As the public protector noted, any reasonable person would have seen the construction of the underground facilities and substantial landscaping interventions, the swimming pool and terrace, amphitheater, kraal and culvert, Visitors Centre, elaborate paving and the space created for a marquee tent and would have asked questions about the cost.

It is for this reason that the President “acted in breach of” (in the words of the public protector) his constitutional obligations in terms of section 96(1), (2)(b) and (c) of the Constitution. These obligations include the duty on the President not to use his “position or any information entrusted to [him], to enrich [himself] or improperly benefit any other person.”

The President also acted in breach of section 2 of the Executive Members Ethics Code by failing to act “in good faith and in the best interest of good governance” and by failing to act “in all respects in a manner that is consistent with the integrity of their office or the government”.

These serious breaches of the Constitution and the law did not occur because the legal advisors of the President may have told him that it was permissible for him to act unlawfully and unconstitutionally in order to enrich himself at state expense. It occurred because the President saw the renovations and knew it would unlawfully benefit him, but (at the very least) did nothing. It is therefore false to claim that the President only breached the Constitution and the law because he may have received the “wrong legal advice”.

(There are some evidence contained in the public protector’s report that the President may have taken specific steps to ensure that he would benefit unlawfully and that there may have been pressure brought to bear on officials exactly with the view towards self-enrichment, but no definitive finding was made in this regard.)

Faced with these devastating findings of self-enrichment and lack of integrity, the President had two options. He could show remorse for his unlawful and unethical actions and accept the findings of the public protector and implement the remedial action imposed by her office. Or he could take steps to try and avoid having to pay back the amount of money with which he was unlawfully enriched; in other words he could attempt unlawfully to milk the state for between R10 million and R20 million.

The President decided not to accept the findings of the public protector and not to implement her remedial action. In a letter sent to Parliament in early April 2014 the President noted that there were “stark differences” in in the findings and in the remedial action proposed by the public protector and by the executive’s own investigation into its own wrongdoing. These “differences” were used to justify non-compliance with the order to pay back some of the money he was unlawfully enriched with.

This decision and subsequent statements questioning the binding nature of the findings and remedial action of the public protector were taken long before the Western Cape High Court found on 24 October 2014 that the public protector’s findings could not be ignored but that they were not binding in the manner that court orders were binding. The claim that the President declined to implement the remedial action of the public protector because of the ruling in the Western Cape High Court judgment is therefore false.

In any event, there was not (and could not possibly have been) any legal advice to the effect that the President was legally required not to comply with the public protector’s findings and remedial action. The “wrong legal advice” did not force the president to breach the Constitution for a second time. The President at all times had a choice of doing what was right or doing what was in his own financial interest.

If the President had believed that it was wrong for him and his family to be unlawfully enriched at state expense and that it was proper for him to pay back the money to which he was not entitled, any legal advice he received (before or after the Western Cape High Court decision) would not have prevented him from just doing the right thing and paying back the money as ordered.

It is therefore false to claim that “wrong legal advice” forced the President not to comply with the remedial action imposed by the public protector. Wrong legal advice might however have given the President the excuse not to do what any reasonable person would have done – pay back the money that he was not legally entitled to.

Similarly, the ANC members of the National Assembly (NA) were not forced by “wrong legal advice” to protect the President. “Wrong legal advice” did not force the NA to flout sections 42(3) and 55(2) of the Constitution by not holding the President accountable for the unlawful action.

Members of the NA may have wrongly believed that they were entitled not to do their constitutional duty (although the Court did not find that they did in fact genuinely believe the absurd legal advice they were given). They may also wrongly have believed that they were permitted to absolve the President from complying with the remedial action taken by the public protector. But they did not and could not possibly have believed that they were legally required to act in the manner that they acted. It always remained a political and moral choice.

This means that if we leave the legal issues aside and look at the moral or ethical choices made by the President and the NA regarding the Nkandla matter, both chose to follow the immoral and unethical path by trying to protect the President from any accountability for unlawfully and knowingly enriching himself at state expense. Instead of doing what was right, they did what was clearly wrong, but which they claimed to believe they had the right to do.

It is in this context that the Constitutional Court in its order found that the President had failed to “uphold, defend and respect the Constitution as the supreme law of the Republic” and that he acted in breach of the Constitution. This contradicts the President oath of office in which he promises to “obey, observe, uphold and maintain the Constitution and all other law of the Republic”.

A person who had not read the Constitutional Court judgment may have been unaware that the President swore in his oath of office to uphold the Constitution and that the Court had found that he had failed to uphold the Constitution.

However, an honest person with any knowledge of the law would obviously not try and make the legally embarrassing argument that the President did not breach his oath of office because while the Constitutional Court may have said that the President had acted in breach of his oath of office it “did not count” because the Court did not say so in the order it made.

I need not say much about the excruciatingly foolish argument advanced by some non-lawyers (who had either never read a Constitutional Court judgment or are just dishonest) that there was no finding that the President acted in breach of (or violated) the Constitution because the Constitutional Court – as it almost always does – “only” stated that he acted inconsistently with the Constitution.

Whenever a party acts in breach of (or violates) the Constitution the Court uses a technical phrase (“inconsistent with the Constitution”) because this is the phrase contained in section 172 of the Constitution.

If the Court finds that you acted inconsistently with a constitutional provision, it finds that you are in breach of it/ violating it/ abusing it/ contravening it/ encroaching upon it/ guilty of an infraction of its provisions/ infringing on it/ transgressing it/ trespassing upon it. Only a person unaware of the existence of synonyms would genuinely believe that these phrases are not identical.

The majority of members of the NA yesterday declined to use section 89 of the Constitution to remove the President from office for acting unlawfully and immorally. They did this by urgently drawing attention to the lame leg of the centipede on the other side of the metaphorical river, while ignoring the fact that they were trapped in the middle of a raging forest fire.

The members of the majority party of the NA find themselves in a bind: The Constitutional Court found that the NA has a constitutional obligations to hold the President accountable. One of the ways it needs to do this is by facilitating and ensuring compliance with the decision of the public protector. The Court also found that the NA did not have the power to exonerate the President from liability for his unlawful actions regarding the Nkandla scandal.

The majority of members of the NA have now decided not to use section 89(1) to hold the President accountable. This the NA had the right to do. Whether it is right for them to have done it, is again – as it was with their second-guessing of the public protector’s report – an entirely different matter. Just because you have a right to do something does not mean that it is right to do it.

However, that is not the end of the matter.

As the NA must hold the President accountable for his unlawful actions (enriching himself, then failing to uphold the Constitution in an attempt to avoid giving this money back), it needs to use some of the other mechanisms at its disposal to do so.

The NA could use section 56 to summons the President to appear before the NA to explain why he decided not to stop the state from paying for a swimming pool and many other features at his private home. They might also ask him to explain why he did not comply with the remedial action imposed the public protector’s report, given the fact that not even the most crooked lawyer had advised him that he was legally prohibited from doing so.

The NA is also permitted to pass a motion censuring the President and his Ministers for their unlawful and unconstitutional action. What is clear, is that there is a constitutional duty on the NA to act; to do something. The Court will not prescribe to it what it must do. A failure to act will potentially again leave it in violation of (that is “acting inconsistently with”) the Constitution. But will the NA fulfil this duty and if it did, how will it do so?

Meanwhile, it is ultimately for voters to decide whether they wish to reward the moral choices that the President and the party he leads made regarding Nkandla or whether they wish to punish the party and its leaders for these choices in the voting booth. But democracy does not only occur every five years. In between elections voters also have the choice to either quietly go along with the decisions made by the President and his party (they might also enthusiastically support it) or to take part in mass action, or to take part in other legal actions to demonstrate their disapproval of these choices.

It is a mistake for those voters who are upset with the Nkandla scandal to believe that the power to hold the President and his party accountable only lies with the Constitutional Court. Ultimately, in a democracy, the power lies with citizens. They either use it, or they don’t.

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