Nkandla: What should have happened, but never did

The concession by President Jacob Zuma’s legal team earlier this week before the Constitutional Court that the findings and remedial action of the Public Protector are binding and that President Zuma was obliged to pay a reasonable amount for the cost incurred in the building of at least five non-security related renovations at his private home, amounts to an admission that the President, the relevant Ministers and Parliament breached the law and the Constitution when it dealt with the Public Protector’s Nkandla report. Here is why.

The broadcasting of the Constitutional Court hearing (on several radio and television channels) on whether the President and Parliament acted properly when it second-guessed the findings and remedial action of the Public Protector regarding the state-funded renovation of President Jacob Zuma’s private home at Nkandla, was an excellent advertisement for that Court and for the legal profession as a whole.

Anyone who watched the proceedings on television or listened to it on the radio would have been struck by the radical difference between the quality of the arguments made by politicians (inside and outside parliament), on the one hand, and that presented by (most) of the lawyers to the court, on the other.

Most of us expect rather little from our politicians. However, during the Nkandla scandal even these low expectations were seldom met. But if we accept that the concessions made by President Jacob Zuma’s legal team were properly made, it means that some politicians did not only act in a pretty self-serving and scheming manner to protect themselves, advance their careers, and protect their boss, but also that they (knowingly or in ignorance) acted in contraventions of the Constitution and the law.

Once the Public Protector completed her report, President Jacob Zuma was obliged to submit a copy of the “report and any comments on” it, “together with a report on any action taken on the report” to the National Assembly (NA). This obligation stems from section 3(5) of the Executive Members Ethics Act and paragraph 11.1.4 of the Public Protector’s Report.

The President had a choice. He could report to the NA that he would implement the remedial action imposed by the Public Protector and would set in motion the process of determining the amount he had to repay for non-security related renovations at his home. Or he could report that he was not happy with the report, that he was looking into the possibility of having the report reviewed and set aside by a court of law, and that he had asked for advice from ministers or lawyers whether such a review would be successful.

This did not happen. Instead President Zuma sent a letter to the Speaker declining to act until the Special Investigative Unit (SIU) had concluded its investigation (which was not authorised to investigate President Zuma’s personal liability). In the letter, Zuma wrote there were “stark differences” in the findings and the remedial action proposed by Madonsela’s report and that of the inter-ministerial task team. (This could not come as a surprise as one report was done by an impartial body, the other by President Zuma’s colleagues who depend on him for their jobs).

Later the President questioned whether he was liable to pay for any upgrades at all – despite being required to do so by the Public Protector’s report (which his lawyers conceded in court, was binding). In a second communication sent to the Speaker the President directed the Minister of Police to:

…report to Cabinet on a determination to whether the President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports.

The President has now conceded before the Constitutional Court that these “stark differences” were legally irrelevant because the reports from the inter-ministerial task team and from the SIU could not replace or qualify Madonsela’s binding report. He has also by implication conceded that his instruction to the Minister of Police was unlawful as he was requesting the Minister to second-guess the binding report of the Public Protector.

In the light of these concessions, his original responses to the Public Protector’s report were at best inappropriate and disingenuous and at worst in breach of the Executive Members Ethics Act and the Constitution. If the latter was the case, this would be the second breach of the Constitution and the law, the first having been found by the Public Protector in her report.

The NA was required to exercise its powers in terms of section 55(2), read with section 92(2) of the Constitution, to hold the President accountable for:

[h]is 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.

It was also required to hold the President accountable for not reporting to it within 14 days “together with a report on any action taken on the report”, as required by the Executive Members Ethics Act. As the President had not reported to the NA about what action he would take to implement the Public Protector’s report, the NA was constitutionally obliged to hold the President accountable of this breach of the law.

As the President had not indicated that he would review the Public Protector’s report, the President now concedes that it was binding, not only on the President, but also on the NA – in the same manner that the decision by a court or an administrative body is binding on the NA.

Just as the NA cannot decide that a guilty verdict against Oscar Pistorius should be reversed; that the awarding of a broadcasting license by ICASA should be rescinded; or that the decision by the Electoral Commission about an election result should be changed, it cannot change a finding of the Public Protector. At best it can have that finding reviewed and set aside by a court (just as the findings of the IEC can be challenged in the Electoral Court).

This does not mean that the Public Protector is empowered to tell members of the NA how to hold the President accountable for a breach of the Constitution and the Executive Members Ethics Act. In terms of section 57(1) of the Constitution the NA may determine and control its internal arrangements, proceedings and procedures. It, and not the Public Protector nor the Constitutional Court, must decide how it wishes to hold the President accountable for a breach of the Constitution and the law.

Assuming the President’s concessions are accepted by the Constitutional Court, the only requirement imposed on the NA by the Constitution is that – in the absence of a judicial review of the Public Protector’s report – it had to rely on the findings and remedial action imposed by the Public Protector to hold the President accountable. It was not permissible for the NA to create an ad hoc committee to determine whether the findings made by the Public Protector were accurate and whether the remedial action imposed by her was appropriate.

The NA could have invoked section 56 of the Constitution to summon the President “to appear before it to give evidence on oath or affirmation, or to produce documents” about Nkandla or it could have required the President to report to it. As the President is appointed and can be fired by the NA, and is accountable to the NA, the NA and not the President is – on paper, at least – the dominant and thus stronger institution in our constitutional democracy.

Of course, if the President failed to provide the requisite information to the NA, or if the President remained defiant about having been found in breach of the Constitution and the law by the Public Protector, the NA retains the power in terms of section 102(2) of the Constitution to pass a vote of no confidence in the President and in the other members of the Cabinet and any Deputy Ministers. The President, Cabinet and Deputy Ministers will then be forced to resign. A simple majority of 201 votes out of the 400 votes in the NA is required for this to come to pass.

However, in the most drastic cases the NA may impeach the President in terms of section 89(1) of the Constitution, but only on the grounds of: a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office. Impeachment requires at least two thirds (267) of the members of the NA to support such a motion. A President who has been impeached may not receive any benefits of that office, and may not serve in any public office ever again.

This is a discretionary power in the hands of the NA. The Constitutional Court does not have the power to order the NA to impeach a President. In effect, the leadership of the majority party in Parliament must support impeachment for it to have any chance of success. The governing party will probably decide to impeach a sitting President when it believes that not impeaching him or her will severely damage the party and will damage its electoral standing with voters.

None of these mechanisms to hold the President accountable for the breach of the Constitution and the law occurred. Instead, Parliament set up two ad hoc committees. The manner in which these committees operated created the impression that they were not set up to hold the President accountable, but to discredit the Public Protector and to protect the President.

The majority of members of the first ad hoc committee chose to consider the reports by the inter-ministerial task team, the SIU, and the Public Protector and emphatically stated that “[a]ll the reports had to be treated in an equal manner to avoid casting aspersions on any of the government agencies or structures that dealt with the matter at hand”. It also assumed that the Public Protector had made recommendations and that the remedial action imposed by the Public Protector “were not binding and enforceable on other organs of State”.

The second ad hoc committee endorsed the almost certainly unlawful report of the Minister of Police. It thus endorsed the report that claimed the swimming pool was a fire pool and that all the renovations at Nkandla were security related and that Madonsela’s report was wrong and should be ignored.

Instead of holding the President and ministers accountable for the findings made against them in the Public Protector report (as it was apparently constitutionally required to do), it refused to accept the validity of the report and in effect purported to act as a court of law by reviewing and setting aside the Public Protector report.

If the concessions of the President’s legal team are accepted, the way in which the NA dealt with the Public Protector’s report was unlawful. The failure of the NA to hold the President accountable for a breach of the Constitution and the law (as found by the Public Protector) would then also constitute a clear breach of the Constitution.

The question arises: what can be done to hold MPs, who may have breached the law and the Constitution, accountable. Although some members of the public, perhaps not having thought through the principles involved, are arguing the Constitutional Court should hold MPs accountable. This is not the task of the Constitutional Court. Yes, the Court can declare invalid the unconstitutional actions of the NA. But ultimately the MPs are not directly accountable to the Court, but to the electorate.

If a voter is unhappy that MPs from a particular party flouted the law and the Constitution in order to protect the leader of the party they belong to (not a surprising thing to want to do – as the future careers of individual MPs are inextricably linked to the fortunes of the leader of the party they belong to), then that voter can hold the MPs and the party accountable by voting for another party, by criticising the party and by demonstrating against it in-between elections.

It would be inappropriate and almost certainly in breach of the separation of powers doctrine for the Constitutional Court to impose any sanction on individual MPs for breaching the Constitution and the law or for aiding and abetting the President to do so.

This serves as a pointed reminder: the Constitutional Court can play an important role to uphold and protect the law and the Constitution in cases where there are clearly defined breaches of the law or Constitution. But voters – and not the Court – ultimately hold the President and the MPs accountable through their vote at election time and through raising their voices in-between elections.

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