Spare a thought for ANC Nkandla committee members

The ad hoc committee of the National Assembly (NA) formed to deal with the fall-out from the Nkandla scandal has all but collapsed after all opposition parties withdrew from it at the end of last week. But why was it set up at all if – as all committee members agree – the committee has no power to review and set aside the findings and remedial action imposed by the public protector?

Neither the Constitution nor the relevant legislation specifically states that the NA has an obligation to consider and deal with all reports of the public protector. But this does not mean that the NA does not (in certain circumstances) have a constitutional duty to call the president, other members of the executive, other politicians or members of the public to account for findings contained in a report of the public protector.

When a report of the public protector deals with a breach of the executive members ethics code, the Executive Members Ethics Act does require the President “within a reasonable time, but not later than 14 days after receiving a report” from the public protector “submit a copy of the report and any comments thereon, together with a report on any action taken or to be taken in regard thereto” to the NA.

However, the Act is silent on how the NA is supposed to deal with this report from the president.

When a report (or aspects of a report) of the public protector does not deal with a breach of the ethics code, there is no specific obligation on the president to report the findings of the public protector to the NA.

However, the speaker can request the public protector to provide the NA with one of her reports. The public protector can also (on her own initiative) submit one of her reports to the NA when she deems it necessary or if she believes it requires the urgent intervention of the NA.

For example, where a report finds that the president is in serious breach of the Constitution or the law, the public protector may submit the report to the NA with a view of allowing the NA to start impeachment proceedings against the president.

As I pointed out above, this does not mean that the NA is not obliged to engage with reports by the public protector regarding breaches of the ethics code and of maladministration and corruption by the president or any other member of the Executive in cases where a report is not submitted directly to the NA.

Section 55(2) of the Constitution imposes a positive constitutional obligation on the NA to hold members of the executive – including the president – accountable for their actions and to maintain oversight over their activities. This accountability goes beyond the performance of their formal functions and duties and includes accountability for a serious violation of the law, serious misconduct or serious breach of the Constitution. This is so because the NA can impeach a president who is guilty of such unlawful actions or misconduct.

Section 92(2) confirms the powers of the NA to hold the president and his executive accountable by stating that all members of the cabinet (which includes the president) are individually and collectively accountable to Parliament for the exercise of their powers and performance of their functions.

The NA is empowered to summons any person (including the president, other cabinet ministers or any official from any political party or any private citizen) to appear before it or to give evidence and to produce any documents relating to the accountability and oversight mandate of the NA. A person who is summonsed to appear before the NA or one of its committees is obliged to appear and produce any documents requested by the committee. A failure to do so may result in a conviction for contempt.

Moreover, section 181(3) imposes another obligation on the NA. Like all other organs of state it is constitutionally required, “through legislative and other measures” to “assist and protect” the public protector “to ensure the independence, impartiality, dignity and effectiveness of these institutions’.

What does this mean?

The NA is constitutionally obliged to hold the president or other member of the executive accountable for how they respond to the findings and remedial actions imposed by the public protector in the wake of findings of maladministration, unethical conduct in breach of the code or corruption.

Where the president, other member of the executive or other individuals comply fully with the remedial action imposed by the public protector, the NA would have no need to engage with those responsible for implementing her findings, regardless of whether the matter deals with a breach of the ethics code or with other forms of maladministration or corruption.

But where the president, other member of the executive or other responsible individuals fail to comply with the remedial action imposed by the public protector, the NA has a constitutional duty to hold the responsible parties accountable for what may turn out to be a serious breach of the Constitution.

At the very least, the NA must require the president (or other members of the executive) to explain to the relevant NA committee why he or she has failed to implement the remedial action imposed by the public protector and why this failure to comply is rational and hence lawful.

As the president has so far refused to provide the NA with comprehensive reasons for failing to adhere fully to the remedial action imposed by the public protector (in a letter to the NA the president declined to comment at all about the findings of the public protector and whether he deems the findings to be correct and appropriate), the NA may first provide the president with another opportunity to do so and if he again fails to provide comprehensive reasons for his refusal to comply, the NA has a duty to summons him before the NA to account for this failure.

This would be constitutionally required because it must be obvious that any failure by the president to comply with the remedial action imposed by the public protector in terms of section 182(1)(c) of the Constitution would prima facie constitute a breach of section 181(3) of the Constitution.

This is so because such a failure would almost certainly undermine the effectiveness of the public protector – instead of protecting it as the Constitution requires. After all, why would anyone in the world comply with the remedial action imposed by the public protector if the man right at the top refuses to engage with the remedial action in a systematic, diligent and rational manner?

The NA could, of course, also summons the president to appear before it to ask why the president had seemingly undermined the dignity, independence and effectiveness of the public protector by failing to answer a majority of the questions posed to him by the public protector. This failure to answer the questions of the public protector constitutes a prima facie criminal offence as the Public Protector Act says it is a criminal offence not to answer the questions posed to you by the public protector.

But this would be additional to the obligation set out above: in the absence of impeachment proceedings it is not the main constitutional reason why the ad hoc committee of the NA is obliged to engage with the Nkandla report. The main obligation of the ad hoc committee is to hold the president accountable for the manner in which he responded (or failed to respond) to the report.

Where no satisfactory explanation is provided to the NA by the president, the NA could institute a vote of no confidence in the president or his cabinet in terms of section 102 or could start impeachment proceedings against the president in terms of section 89 of the Constitution. If such a move succeeds, the president would be removed from office – the ultimate form of accountability.

As far as the public protector’s Nkandla report is concerned, it appears that none of this will be done, which means the NA will not comply with its constitutional duties regarding the Nkandla report.

This is not surprising. In fact, if I had been a member of the governing party serving on the ad hoc committee I would probably also have been extremely reluctant to hold the president accountable and to comply with my constitutional duties to do so.

The reasons for this are obvious.

Where the members of the governing party serving in the NA believe that no serious electoral harm will be done to their party if they fail to hold the president accountable, they will almost certainly act in a manner aligned with the interests of the president. From their perspective, it would be madness for them to act against the leader of their party (or against other senior members of their party who serve in cabinet and retains the confidence of the president) and to hold them accountable.

This is so because they might fear to act against the leader of the party, who may well possess incriminating information about their financial affairs or private lives that may be leaked to the media, SARS or the NPA. The leadership of the party will also be able to sabotage their careers by having them “redeployed” from the NA if they displease the leadership.

Some might be protecting the president out of personal loyalty to him. Others may harbour genuine fears that complying with the Constitution will further damage the image of the political party they are loyal to and love, and which they rely on for their jobs. Yet others may not have an ethical compass and may genuinely believe that there is nothing wrong with the use of public funds to personally enrich the president.

This means that – as is the case in many other democracies – the constitutional accountability measures break down where there are no negative political consequences for the governing party who fails to fulfil its accountability mandate.

The day that voters send a signal to the governing party that it will be punished at the polls for failing to hold the executive accountable will be the day this dynamic will change. Until then, spare a thought for the ANC members on the ad hoc committee who are caught between doing the right thing and doing what (for the moment) appears to be in their own best interest.

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