Nkandla: Untangling that rather sticky web

The government has been steadfast in its refusal to make public the internal report of the Department of Public Works into the spending of more than R200 million of public funds to upgrade President Jacob Zuma’s private home at Nkandla.

Citing “national security” concerns (foreign agents may be interested to know just exactly where that rumoured bunker at Nkandla is situated) the Department argues that the publication of its report would threaten the personal safety of the president. This argument is not plausible, in so far as the particular aspects of the report describing the security measures in place at Nkandla could be redacted from the report before it is made available to the public.

The reluctance to make the report public (sans the specific detailed descriptions of security measures at Nkandla) may therefore have more to do with a fear of embarrassing the president and the government, than with a concern for “national security”.

It is therefore not far-fetched to assume that the government would not be eager for a similar (but independent) report by the Public Protector to be made public. But legally, its ability to suppress the report is currently limited. This may change once the Protection of State Information Bill becomes law, but until then the Apartheid-era Protection of Information Act 84 of 1982 remains the applicable legislation and this piece of legislation does not entitle the government to prohibit the publication of the Nkandla Report.

The Constitution allows the Public Protector to investigate any conduct in state affairs, or in the public administration and to “report on that conduct”. Section 182(5) of the Constitution further states that:

Any report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.

As the Protection of Information Act of 1982 does not contain any provision that could be read as requiring that the report be kept confidential, it means that the Public Protector will have to publish the report. The National Key Points Act does not contain any provisions requiring a censoring of the report either. In the absence of national legislation that requires a censoring of parts of the Public Protectors Nkandla Report, there is a constitutional duty on the Public Protector to make the entire report public.

Section 8 of the Public Protector Act confirms this constitutional power of the Public Protector to publish any report relating to one of her investigations. Section 8(2) also requires the Public Protector to submit to Parliament half-yearly reports on the findings in respect of investigations of a serious nature if she deems it necessary; or in the public interest; or if it requires the urgent attention of, or an intervention by Parliament.

Furthermore section 8(3) of the Act states that the findings of an investigation by the Public Protector must “be made available to the complainant and to any person implicated thereby”.

This means that, until such time as the Secrecy Bill comes into effect, the full report must be handed to those who requested the Public Protector to investigate the matter and the report must also be made available to the public at large.

Two questions arise in this regard.

First, the Report may contain details of the security arrangements at Nkandla. It would obviously be inappropriate to publish details of these security arrangements. However, in the absence of legislation that would require the Public Protector to black out these details in her report before making it public, it is unclear on what legal grounds the full report could be withheld from the public and from those who requested the Public Protector to investigate the matter.

The Public Protector may therefore be in the invidious situation of having a constitutional duty to publish the entire report while not wanting to reveal any details of the security measures currently in place at Nkandla.

Second, the Public Protector must also refer the report to the appropriate bodies tasked with instituting remedial action, if any, recommended by the report. Part of the report will deal with the question of whether the president’s statement to Parliament that he and his family paid for all non-security related upgrades at Nkandla was accurate. If this statement were not accurate, this would constitute a breach of the Executive Members Ethics Code.

The Executive Members Ethics Act states that the Public Protector must investigate any alleged breach of the code of ethics and must submit a report about the alleged breach of the code to the President if the complaint is against a Cabinet member. Constitutionally, the President is a cabinet member as well.

But as the Public Protector indicated in a previous report about the failure of President Zuma to declare his financial interests, this section of the Act fails to consider the situation where the president happens to be the Cabinet member who has breached the code of ethics. She recommended at the time that the Act be amended, but this has not been done. There seems to be no legal escape from this constitutional demand.

I would not wish to pre-empt the findings of the Public Protector. However, as the legislation stands now, in the event that the report contains a finding that the president had misled Parliament, she would have to report this fact to the president who would then be required to address a breach of the code of ethics by himself. This would obviously not be a desirable situation.

If this were indeed to be the case, it would probably be appropriate for the Public Protector to refer the report both to the president and to Parliament, with a request that Parliament deal with any alleged breaches of the code of ethics by the President. Parliament chooses the President who is constitutionally accountable to Parliament and can also be removed from office by the National Assembly for either political reasons or because of a serious violation of the Constitution or the law or serious misconduct by the President.

No matter what is contained in the report, it is highly unlikely – for reasons relating to the internal politics of the governing party – that the National Assembly will even consider such drastic steps against the president. But I would contend that these provisions suggests that the National Assembly is permitted to consider and deal with any alleged breaches of the code of ethics by the president that falls short of impeachment.

Of course, it might be that the Public Protector’s report exonerate the president, in which case the difficulty pointed out here will not arise. What is clear is that the there is a constitutional duty on the Public Protector to make public her report (or at the very least to make public those aspects of the report that do not reveal the security arrangements at Nkandla).

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