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.
Members of the ANC and the government it leads often complain about the unfair manner in which the non-SABC sector of the media portrays the party and the government. And it is true that some members of the media suffer from a form of Afro-pessimism and do not often dwell on the government’s successes and achievements. After all, many white middle class consumers of the media do not want to read about what is going well in the country because this does not accord with their own prejudiced view of the ANC. But sometimes the government and the ANC can only blame itself for the bad publicity that rains down on it. Nothing illustrates this point better than the manner in which the government and the ANC have so far handled the Nkandla scandal.
A lesson very few democratic governments ever learn is that when a big scandal like the Nkandla palace upgrade breaks, the worst thing you can do is to try and hide information about the scandal from journalists and the public. When you do this, you give the scandal legs. In a democracy like ours, some if not all of the facts will eventually be revealed – usually in a piecemeal fashion – allowing journalists to continue reporting on the scandal. If you come clean from the start and reveal all the sordid facts, the scandal will die down after the initial flurry of reporting and condemnatory editorials. Journalists have a notoriously short attention span and in the absence of stories on how the government is trying to cover up the use of public funds to enrich the President, it would not report on the Nkandla scandal.
The reason why we are all still talking and writing about the Nkandla scandal – centred around the use of over R200 million of public funds to improve the private palace of President Jacob Zuma at Nkandla – is because the government, bizarrely, continues to claim that Nkandla is a “National Key Point” and that revealing any information about how the money was spent on this private residence would endanger national security and the security of the President.
This move places the interests of President Zuma above the interests of the ANC and the government it leads. Public Works Minister Thulas Nxesi now has to defend the indefensible, damaging his own image and that of the government in the process – all to protect the Emperor of Nkandla. Nxesi can surely not really believe that it is right to invoke a draconian apartheid era piece of legislation to protect Zuma, whose financial advisor was convicted of bribing the President? Why the ANC has not intervened to protect itself from the political fall-out of their leader’s spendthrift ways is beyond me. Why are they putting the interests of one man above the interests of the party and the country?
The unconvincing attempts at hiding the truth about the abuse of public funds to enrich the President are also counter-productive. Both the scandal and (probably even more so) the attempt at a cover-up, continue to damage the President’s image and create the unfortunate impression that our President sees himself as an old style Emperor who is entitled to draw on public funds to ensure his private comforts and that of his extended family.
This week Minister Thulas Nxesi wrote a letter to National Assembly speaker Max Sisulu informing him that he wants the details of a task team report on the upgrade of President Zuma’s Nkandla palace to be discussed by MPs behind closed doors and “in camera” if necessary. He called the report a “sensitive” matter, by which I can only assume he meant that it is a matter that could embarrass the Emperor. He wrote that tabling the report in Parliament would be “tantamount” to debating a state security matter in public. (By the way, is this increasing use of the word “tantamount” by members of our government not at least a bit scary? I recall how various apartheid era Ministers contemptuously spat out that word whenever they wanted to intimidate their critics. “His criticism is tantamount to giving comfort to communists and terrorists!”)
In a pointless attempt at hiding the truth about this scandal, Nxesi then continued:
Therefore I propose that the report be tabled and dealt with by a parliamentary committee responsible for security matters or that a mechanism be devised by Parliament that will permit the matter to be discussed without compromising the security of the president and his immediate family.
Section 59(1) of the Constitution states that the National Assembly must “conduct its business in an open manner, and hold its sittings, and those of its committees, in public.” This gives effect to some of the founding values of our Constitution, enshrined in section 1 of that document: “a multiparty system of democratic government, to ensure accountability, responsiveness and openness”. Section 59(2) further states that:
The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.
The Rules of Parliament confirms the need for openness and transparency but similarly allows for secret meetings to protect private parties and if it is reasonable and justifiable to do so in an open and democratic society. Of course, it can never be reasonable and justifiable in a democratic society to try and hide facts about the spending on public funds on the upgrade of the private palace of the head of state. As we all know, this is all part of a smoke and mirrors game played by the Minister in a futile attempt to protect the President. (I am assuming that no one who claims this is a national security issue actually believes this to be true.) There is nothing in the National Key Points Act that prohibits Parliament from discussing details of the amounts of public money spent on the private palace of the President – whether that palace was declared a National Key Point or not.
Section 10 of the Act prohibits any person from furnishing “any information relating to the security measures, applicable at or in respect of any National Key Point… without being legally obliged or entitled to do so”. The Minister is constitutionally required to account to the South African public for the spending of public funds via the National Assembly. There is therefore a constitutional obligation on him to reveal how and on whom the R200 million was wasted – although he is not required to reveal the actual security measures in place at Nkandla. The last time I checked, the Constitution trumps any law passed by the PW Botha regime, which means his attempt at avoiding accountability is not in line with the Constitution.
If there were really serious concerns about the safety of the President (who knows, maybe we are not being told about an imminent invasion of South Africa by the Lesotho navy), any aspects of the report dealing with actual security measures the National Assembly could deal with such circumscribed aspects of the report in camera, while the rest could be made public. Such justifiably “secret” information would relate to details about where guards are stationed, when they rotate, what weaponry they have at their disposal, the nature of the security barriers erected and what escape routs are available to allow the President to escape ahead of the invading Lesotho navy.
But because the report does not deal with the security measures in place at President Zuma’s private palace, this would mean it would have to be made public in its entirety. Instead, the report deals wholly or in large part with how much money was spent on what kinds of upgrades the public paid for at President Zuma’s private palace at Nkandla. Besides, even by his own admission, “only” R117 million of the more than R200 million was actually spent on security related cost. Even on a most generous interpretation of the facts, the Minister has a legal duty to reveal those parts of the report not dealing with the R117 million so called “security upgrades”.
Of course, all these attempts by Nxesi to protect his boss – despite the harm this is doing to the ANC and the government – are futile. If the report is tabled in camera in a special committee created for this purpose, any member of the National Assembly who sits on this secret committee could then reveal extracts from the report whenever they have an opportunity to do so during sittings of the National Assembly. This would be so even if one agreed with Nxesi’s bizarre statement that the National Key Points Act prohibit the report from being made public.
This is so because section 58 of the Constitution states that all members of the National Assembly “are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said in, produced before or submitted to the Assembly or any of its committees; or anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.”
Opposition MPs could therefore not be prosecuted for revealing parts or all of the “secret” report in the Assembly. This just goes to show how futile Nxesi’s attempts at keeping details about the enrichment of our President will ultimately be. Given this fact, why he is bothering to protect his boss when this so clearly is not in the interest of the ANC and the government, perhaps says more about his own political ambitions and his lack of principles than it says about his loyalty to the ANC and to the citizens of South Africa.BACK TO TOP