As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The controversy around the funding of the recent upgrades of President Jacob Zuma’s private homestead at Nkandla goes to the heart of our democracy, which is safeguarded, in part, by requiring a large degree of openness, transparency and accountability from public office bearers and from our government. That is why I requested the Public Protector to confirm that President Zuma did not breach the Executive Ethics Code when he told the National Assembly that his family was paying for all but the security-related upgrades at Nkandla.
In February 1891, Louis Brandeis, who later served with distinction on the US Supreme Court, wrote a letter to his fiancé, expressing an interest in writing a “a sort of companion piece” to his influential article on “The Right to Privacy”. In this article, he wrote, he would focus on “The Duty of Publicity”. He had been thinking, he wrote, “about the wickedness of people shielding wrongdoers & passing them off (or at least allowing them to pass themselves off) as honest men.”
He then proposed a remedy: “If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.” In 1913 he rephrased this thought, famously writing that “sunlight is said to be the best of disinfectants”.
One might well think that Justice Brandeis held a rather too bleak and pessimistic view of human nature. But as the Watergate scandal, and (more recently) the scandal around the absence of “weapons of mass destruction” in Iraq illustrate, there might be good reasons to distrust the powerful men and women in government and big business. While a lack of transparency and accountability by the powerful does not necessarily lead to corruption, abuse of power and illegality, the sunlight of open, transparent and accountable government will almost always prevent it.
Unfortunately the responsible minister, the president and the president’s spindoctor have not dealt with the upgrade of President Jacob Zuma’s Nkandla homestead in an open, transparent and accountable manner. When the media reported that more than R200 million of public funds were being spent on upgrades at Nkandla, the Minister of Public Works (invoking an Apartheid-era law) refused to provide a breakdown of the cost. Similarly, while President Zuma told the National Assembly that his family was paying for all the non-security-related upgrades at Nkandla and that he was still paying back a bond taken out to finance the previous phase of the building project in 2000, he refused to provide either relevant details or any proof to back up his statements.
If the minister and the presidency had come clean from the start, and if they had told the South African public exactly how much was being spent at Nkandla, which portion was being financed by the state and which proportion by the president, the media and the South African public might long since have moved on.
Yes, it might well be that complete openness and transparency would have embarrassed the government. After all, there is evidence that the cost of the state sponsored “security” upgrade far exceeds the amount allowed by the Ministerial Handbook and that the budget for the state financed part of the project is suspiciously inflated. But this embarrassment would have been less harmful to the government and to President Zuma than the lingering controversy we sit with now. Those of us who are members of the chattering classes — with our notoriously short attention spans — might well have expressed our outrage at the time, but we would soon have found something else to worry about. (Spy tapes anyone?)
Because the minister and the presidency prevented the sunlight from shining on the financing of the Nkandla upgrade, some people became ever-more suspicious. Because of the absence of openness and transparency, the scandal festered. In fact, the scandal was fed by vague and as yet unsubstantiated claims made by the minister (that the state only paid for security enhancements at Nkandla and that the R240-million price tag was not correct) and claims made by President Zuma (that his family was paying for all non-security-related building work at Nkandla and that he was still paying off an as yet unnamed bond registered over Nkandla).
It is against this background that I requested the Public Protector to shine some light on President Zuma’s claims to the National Assembly about the financing of the non-security related parts of the building at Nkandla. The Public Protector is already investigating the state-sponsored “security”-related aspects of the upgrade. When President Zuma angrily told the National Assembly that he and his family were paying for all non-security-related building work at Nkandla and that he had registered a bond over Nkandla which he was still paying back, he opened the door for such an investigation.
This is because the Executive Members’ Ethics Act of 1998 empowers the Public Protector to investigate all alleged breaches of the Executive Ethics Code. Section 3.2 of this Code states that Members of the Executive may not wilfully mislead the legislature to which they are accountable; or act in a way that is inconsistent with their position; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; or use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties; or expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.
Section 3.1 of the Code requires every member of the Executive to declare all his or her personal or private financial or business interests, while section 4.1 of the Code further prohibits the members of the Executive from soliciting or accepting a gift or benefit. Section 5.1 of the Code further requires every member of the Executive – including the president – to disclose to the Secretary particulars of all their financial interests.
It may well be that the Code was strictly adhered to. After all, it would be foolish for the president to mislead the National Assembly, as the risk of being caught out is high. However, because of the lack of openness and transparency on the part of the Minister and the presidency, it is impossible to know this for certain.
This uncertainty was caused by the fact that City Press could not find evidence of a bond having been registered over Nkandla and because no information had been made available about which aspects of the Nkandla upgrade were being paid for by the State and which aspects President Zuma was paying for. Given the fact that the first phase of the building works at Nkandla was partly funded by various benefactors of the president as well as — indirectly — by a bribe solicited by Schabir Shaik from an arms-deal company, questions are being raised about whether all the non-security-related building work at Nkandla is indeed being funded by the president and his family as claimed.
I would be delighted if the Public Protector in due course finds that the president and his family are indeed paying for all the upgrades at Nkandla and that a bond was indeed registered over Nkandla as claimed. But given the lack of openness and transparency about the matter and in the absence of an investigation by the Public Protector, the questions and uncertainties will never be addressed and will linger on, like a septic wound. A Public Protector investigation will allow an appropriate amount of sunlight to shine on the affair, thus serving as a disinfectant against all the suspicions now hanging in the air.
I would think the presidency would welcome such an investigation. After all, when Mac Maharaj declined to provide details of the bond registered over Nkandla, he indicated that the presidency would be willing to provide details of such a bond to the appropriate legal authority. That legal authority is the Public Protector. Unfortunately, in the absence of a firm and principled commitment by the president to openness, transparency and accountability, only the Public Protector will be able to ensure that the disinfectant of openness and transparency does its salutary work.
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