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Shameless determination to evade law

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President Jacob Zuma at the Cornubia integrated human settlements development. The writer says the way Zuma and the ANC have responded to the Nkandla report is simply a way to dilute the public protectors findings. Picture: Siyanda Mayeza

Trying to wriggle out of his responsibilities after the Nkandla report may buy Jacob Zuma time but entangles him in more trouble, writes Mcebisi Ndletyana.

Johannesburg - ‘Phunyuka bemphethe – so goes the joke in the black community as folks watch the President of the Republic, Jacob Zuma, attempting to wriggle out of yet another scandal.

While suggesting disbelief on the one hand, the phrase also expresses awe.

Zuma has an uncommon talent and shameless determination to evade punishment for wrongdoing.

The admiration is not entirely unexpected, as the man has repeatedly escaped conviction while stalling other charges.

Granted, the strategy appears canny – but it doesn’t eliminate the president’s problems.

It simply buys Zuma time while effectively entangling him even further into trouble and enlarges the stain on his presidency.

Zuma’s official reply to Public Protector Thuli Madonsela’s Nkandla report falls into the same pattern.

In saying that his full response will await the outcome of investigations by the Special Investigation Unit, Zuma has certainly bought time.

But, he cannot dismiss Madonsela’s conclusion that he should pay for the personal comfort secured at the state’s expense and is morally liable for the improper expenditure.

This is obfuscation that is consistent with how Luthuli House has also resolved to deal with the Nkandla debacle. ANC headquarters equates the findings of the inter-ministerial task team on the Nkandla imbroglio with that of the public protector.

The idea is to dilute the potency of Madonsela’s recommendations while suggesting that ministerial findings take precedence. Zuma’s ministers have predictably exonerated him of any liability both morally and financially.

Ultimately, though, Zuma will not escape liability for Nkandla.

It is not a mystery as to whose findings take priority, as (ANC secretary-general) Gwede Mantashe wishes us to believe. Madonsela’s findings are the only ones with legal force on this matter.

And this is not because Madonsela likes making headlines. Rather, it was the intention of the drafters of our constitution to have it that way.

Understanding the philosophical basis of the office of the public protector is critical in appreciating the supremacy of this office.

It is not just a public office.

First established by the Swedes in 1809, the institution of the public protector is the very expression of democracy. In creating the office, the drafters of our constitution brought to life the fundamental principle that democracy is a “government by the people”.

The public protector was introduced as the answer to the inability of citizens to exercise control over the bureaucracy. Citizens exercised influence over their government and Parliament through elections. But, they lacked any such measures over the bureaucracy, yet the latter exerted enormous influence over their lives. It could be unresponsive and abusive towards citizens. Because they don’t depend on public opinion for their employment, civil servants had little encouragement to please citizens.

Introducing the public protector, therefore, extended public control beyond government and Parliament over to the administration.

The public protector ensures that public officials and elected leaders observe the law, fulfil their duties and are efficient.

Most importantly, the office of the public protector performs this function free of charge, ensuring that enjoyment of rights is not contingent on citizens’ ability to afford legal representation.

Democratic citizenship finds complete meaning in this office.

Actually, its significance goes beyond fulfilling democratic requirements. It is a manifestation of who we are as a society.

South Africans distrust the state. This is not surprising. The democratic republic emerged out of centuries of authoritarianism. Previous regimes did not govern, but reigned. Theirs was a reign of terror upon the majority of the population. State officials did not serve the public but inflicted horror.

Because of our hellish past experience, the writers of the constitution rightfully insisted on checks and balances to avoid a repetition of the past.

Like the victims, perpetrators of the apartheid horror, fearing vengeance for past sins, would also have insisted on such future protection.

The ghastly memory of the past and fear of potential reprisals thus made the office of public protector an inevitable trait of our new democratic republic.

It is a true testament of both our past and what our future seeks to avoid.

Given the normative foundation of the public protector, it can never be that findings by the executive into its own impropriety assume equal importance to those of Madonsela.

On matters of bureaucratic misdemeanour, the executive is itself subject to investigation.

For the obvious reason that it is absurd to arrogate the role of an investigator where one is implicated, the executive must necessarily defer to an independent body.

The public protector’s findings take precedence, not only because the constitution deems it so, but by sheer force of common sense.

If there were ever an instance where ministerial findings overrode those of the public protector, then there would be no need for the latter. Deferring to the executive over the public protector on investigations related to administrative irregularity, nullifies the very idea of a public protector.

Rather, the mere existence of the office of the public protector invalidates an executive probe, especially if the complaint is already under investigation by the public protector. The inter-ministerial investigation should not have never even happened. The very idea of that investigation had no logical basis.

And, it is foolhardy to assume the president is ignorant of the supremacy of the office of the public protector on these matters. Zuma is not only mindful of this constitutional prescript, but has been compliant.

That is why when Madonsela announced the investigation into allegations of impropriety involving Minister Sicelo Shiceka, and later, former police commissioner Bheki Cele and many others that have subsequently followed, Zuma did not institute a parallel investigation. And, in all instances the president never challenged the veracity of Madonsela’s findings.

Rather, he has consistently acted on Madonsela’s recommendations, exception in recent instances, where culprits are seeking a judicial review of the findings.

Attempts to undermine Madonsela’s findings, therefore, will not succeed. They simply lack reasonable grounds. Zuma is delaying what is ultimately inevitable. If Parliament, to which the president is accountable, does not force him to comply, a court of law will do so.

Someone will most likely take the president to court. And it is highly unlikely that a court of law will agree with President Zuma.

Actually, in yet another case involving Zuma, a court has just ruled that it is acceptable to call Zuma a “thief”.

What is an ordinarily pejorative the court found quite befitting in the case of our president.

From an international statesman to a renaissance man and now we have a “thief”.

If the Nkandla report reaches court, it means Zuma’s second term is likely to be a re-run of his initial term.

Once again, instead of leading the republic, our president will be in and out of court, defending himself against his own citizens.

And, he’ll have even more court appearances in the second term as the Nkandla case will add to yet another ongoing case related to the spy tapes.

Could it be that in 2019 we will look back to 10 years of a president using his prestigious office to evade the law? Surely, there must be an end to this?

* Mcebisi Ndletyana is head of the Political Economy Faculty at Mapungubwe Institute for Strategic Reflection.

** The views expressed here are not necessarily those of Independent Newspapers.

Sunday Independent


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