An impeachable offenceComment on this story
Thuli Madonsela has done what no one else has been able to do before: hold Jacob Zuma responsible for his conduct and the failure of his government, writes Ranjeni Munusamy.
Durban - From the moment Public Protector Thuli Madonsela released her damning investigation report into the security upgrades at President Jacob Zuma’s private estate at Nkandla, one question has been asked consistently. What happens now? If the government and the ANC’s approach to Madonsela’s investigation and previous scandals that beset the Zuma administration are anything to go by, absolutely nothing.
Remember, this is the government under which 34 South Africans were mowed down by the police – and 19 months later, not a single person has been held responsible for the Marikana massacre. This is also a country where a state military facility was commandeered for personal use by wedding guests of the president’s friends.
Who is in jail for this? Nobody.
And 13 South African soldiers were killed in combat in a foreign country on a still unclear mission. Consequences? None whatsoever.
In a country where life is cheap and state resources are the trough from which the political elite and their friends feed, can we really expect serious consequences for some bending of the rules to ensure the president can live in luxury for the rest of his life? At a time when South Africa celebrates 20 years of democracy, how can we accept that it is all right for multiple state departments, cabinet members and officials to willingly violate the prescripts of good governance and waste public funds?
Before Madonsela released her report, titled “Secure in Comfort”, we knew our country had serious problems – our economy is performing poorly, unemployment and poverty levels are too high, service delivery is breaking down, our police service has murderous tendencies, violence against women and children is intolerably high, moral decay has beset political leadership, corruption is chewing at the fabric of our society. Oh, and our national football team is a “bunch of losers”. Still, we kept going in the belief that our Mandela-ness, our special something that made us a miracle nation will get us by.
We cannot do that any longer.
Now we know too much.
We know President Zuma told Parliament his family had paid for the renovations at his home and the state only paid for security features.
“This was not true,” Madonsela found. “It is common cause that in the name of security, the government built for the president and his family… a visitors’ centre, cattle kraal and chicken run, swimming pool* and amphitheatre, among others.”
We know this was undue benefit and the public protector has recommended that Zuma pay back “a reasonable percentage” of these costs to the state.
In any country where there is accountable government, this is an impeachable offence. Madonsela has accepted Zuma’s explanation that his statement in Parliament was a “bona fide mistake”, as he had only considered his family dwellings. But she also states in the report: “It is my considered view that as the president tacitly accepted the implementation of all measures at his residence and has unduly benefited from the enormous capital investment from the non-security installations at his private residence, a reasonable part of the expenditure towards the installations… should be borne by him and his family.”
That is rather difficult to ignore.
We have now learnt that the Nkandla upgrades were not just a mad spending spree with government money but that funds were redirected from service delivery projects. The public protector’s report states that funds were reallocated from the Department of Public Works’s Inner City Regeneration and the Dolomite Risk Management Programmes. This Madonsela found to be in violation of the constitution and constituted “improper conduct and maladministration”.
One of the most commonly used words in the 443-page report is the word “reasonable”. Madonsela kept trying to apply the reasonableness test in assessing what was done and what should have been done in securing the president’s residence. She also had the expectation that Zuma would have conducted himself as any reasonable person would.
He did not.
“The mere magnitude of the Nkandla Project, the many buildings constructed, including underground facilities and substantial landscaping interventions, the swimming pool and terrace, amphitheatre, kraal and culvert, visitors’ centre, elaborate paving and the space created for a marquee tent, would, in my view, have prompted any reasonable person in the position of the president to seriously question the need for certain items and the expense to the fiscus of funds that could have been used somewhere else where there are service delivery needs, poverty and unemployment.”
As a result, Madonsela concludes: “It is my considered view that the president, as the head of South Africa Incorporated, was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and state resources.”
Here is the big problem with South Africa going on as if nothing has happened:
“His 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 the cabinet, as contemplated by section 96 of the Constitution,” the public protector’s report says.
This was the president’s oath of office at his inauguration in 2009:
“I, Jacob Zuma, solemnly swear that I will observe and maintain the Constitution of the Republic and I solemnly and sincerely promise that I will always promote all that will advance the public, and oppose all that may harm it.”
We are now faced with the dilemma of what should be done knowing that the president’s conduct was not in accordance with the constitution.
Madonsela provides no guidance on this in her report.
“I have avoided determining what should be the remedy for ethical violations,” she said when asked about this gap. She has raised the problem with the government of the loophole in the law of who or what is supposed to take action when the president is involved in wrongdoing. The government has not yet amended the legislation that clarifies this.
But the bigger problem is: what should Madonsela have recommended? What is the remedy for the president of the Republic violating his oath of office?
The government and the presidency have run interference in so many ways to prevent us having to contemplate that question.
The security cluster tried to block Madonsela’s investigation with nonsensical claims of security concerns around the president’s residence at Nkandla. They questioned the authority of the public protector to conduct the investigation at the same time other state agencies they preferred were probing the upgrades. They questioned Madonsela’s competence to consider issues like the health facilities. In a letter to Madonsela last month Zuma questioned the public protector’s ability to investigate the upgrades when she is not a “security expert”.
Madonsela sent a list of questions to the Presidency on the upgrades. When she did not get a response and enquired, she was told they had lost the questions. Other questions she posed to the president were simply not answered.
And then insult collided with injury. Zuma complained about Madonsela’s delay in finalising the investigation, claiming “his duty to account under the Executive Members’ Ethics Act, including informing Parliament on how he has dealt with my findings, has lapsed due to such delay”.
Madonsela states: “The African National Congress, which is the governing party in this country, has periodically insinuated that I was delaying the release of the report to ensure that I release it close to and in order to influence the 2014 National and Provincial elections. Such insinuations have not only been untruthful, but hurtful to my team and I, while having the potential to erode the credibility of my office and my professional integrity
“The reality is that the Presidency was part of the problem as were other organs of state regarding the delays,” Madonsela says. “My team and I sat in silence when organs of state that had requested extension after extension to submit submissions in response to my Provisional Report (and) said nothing when insults were hurled at my office by their colleagues or supporters in Parliament and civil society for allegedly sitting on the report in pursuit of a political agenda.”
The government’s initial response is that, yes, of course there were “elements of maladministration, corruption and inefficiencies” which were also highlighted in their own task team report. But they insist: “The retaining wall, cattle kraal and culvert, fire pool and water reservoir, accommodation for security personnel and visitors’ waiting area are all essential security features which ensures physical security and effective operation of security equipment.”
The Presidency said the public protector’s report would be “an additional tool which will fall under the consideration of President Zuma in addressing allegations of maladministration”.
“The president will study the findings and recommendations of the public protector in the context of the existing government interventions, and will communicate his response in due course,” presidential spokesman Mac Maharaj said.
It remains to be seen whether the government will challenge and seek to overturn the findings. But whether it does or not, the die has been cast. There is no more innocence or ignorance. South Africans now know that R246 million of their money was blown on “opulence at a grand scale”.
What are we going to do about it? Yes, the nation is scandal fatigued. Yes, politicians get away with abusing public money all the time – and some even make it back on to the election list for re-election. And yes, the Nkandla project cannot be undone and the money unspent.
But what about the consequences? Our guiding light and moral guardian Nelson Mandela told us: “The time is always right to do right”. The situation has presented itself to do just that.
* The public protector refers to it consistently as a swimming pool in the report, not the rather innovative explanation of government that it is a fire pool.
* This article also appears in the Daily Maverick