President Jacob Zuma has challenged Public Protector Thuli Madonsela over her Nkandla findings.

If the party protects President Jacob Zuma in the Nkandla debacle, it is likely to rue the consequences, and may even lose the next elections, writes Craig Dodds.

Johannesburg - The commonly accepted version has it that President Jacob Zuma refused to respond to the question of when he would “pay back the money” – leading to the crazy scenes witnessed in Parliament last week – but this is not strictly correct.

He was, in fact, busy giving an answer, though not the one sought, when things got out of control.

His words were barely audible above the rising chorus of indignation, but they were revealing.

“The issue that the honourable member (EFF leader Julius Malema) is referring to, is a matter that arises in the recommendations of the public protector,” Zuma said.

“And I am saying that people who did the upgrades at Nkandla are the ones who always determine who pays and when to pay. It is the government that decides. And the matter is referred to people who are legally authorised to make that determination.”

He could hardly have made his position clearer.

First, what Public Protector Thuli Madonsela and legal commentators consider to be her remedial actions – steps the government must take to correct the wrongs she has uncovered – Zuma sees as “recommendations”, akin to advice he is free to ignore if he chooses.

Second, the authority to “determine who pays and when to pay” rests with the government alone and Madonsela’s instruction for him to pay back a reasonable portion of the expenses incurred in the building of non-security features at his Nkandla home is subject to this authority.

Hence, he has asked his police minister to take this decision as a person “legally authorised to make that determination”, inferring that Madonsela is not so authorised.

As if to reinforce this position, Communications Minister Faith Muthambi gave Madonsela a similar slap down in Parliament this week.

According to the agenda of the portfolio committee on communications, Muthambi was to respond on Tuesday to the public protector’s report on shenanigans at the SABC, among them chief operating officer Hlaudi Motsoeneng’s initial appointment at the broadcaster on the basis of faked matric results and subsequent irregular salary hikes.

Instead, Muthambi effectively informed the committee that she and the SABC disagreed with Madonsela’s findings and there was therefore no remedial action to be taken – again insisting on the right of the government to consider Madonsela’s “input” and reject it at will.

It has been repeated often enough that the office of the public protector enjoys constitutionally enshrined powers, among them to take remedial action, and that “other organs of state”, like the executive, “must assist” it in carrying out its functions – by implementing its remedial actions, among others.

By rejecting her instruction to “pay back the money”, and in Muthambi’s case to take disciplinary steps against Motsoeneng, the government is thumbing its nose at the constitution and, by extension, the citizens who own it, it is said.

But this does not explain why institutions like the public protector exist in the first place.

Madonsela herself tried to do so in a recent presentation in Parliament by quoting the words of Nelson Mandela at the launch of the office of the public protector in 1996: “Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities is subject to scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order.”

It is not, then, “the government that decides”, as Zuma and Muthambi would have it. The question is more complex than that, especially when the government’s decision-making has been patently flawed, and the answer is a critical factor in the quality of democracy.

In the process that is about to unfold in response to Madonsela’s investigation and report on Nkandla, we will be given an object lesson in “who decides”.

For the moment, the matter is before Parliament and an ad hoc committee established for the purpose is to begin considering Zuma’s response to Madonsela once it has clarified its mandate.

Political parties have already drawn the battle lines and indications are the ANC will protect Zuma by referring to investigations carried out by the joint standing committee on intelligence and Special Investigating Unit, neither of which investigated the possibility that the president should be held partly responsible for the reckless spending at his private residence.

Opposition parties, on the other hand, will emphasise that only Madonsela’s report carries the status of a constitutionally-protected independent body and, as such, cannot be trumped by the government’s own investigations.

Since the ANC will have six members on the committee against the combined five of opposition parties, it will be in a position to determine the outcome of the process, whatever position it chooses to adopt.

But that would leave it standing alone in defence of the president, to bear the brunt of any public backlash that might follow, if Parliament exonerates Zuma without properly considering the public protector’s damning findings against him.

A second likely consequence would be that the courts would once more be drawn into a political battle to rule on the legitimacy of the outcome. As Zuma has already discovered in the matter of his appointment of Menzi Simelane as head of the National Prosecuting Authority, the courts are another arena, beyond the government, that can “decide”. However, given that this is Zuma’s final term, a legal challenge may have been rendered academic – at least in terms of its impact on his presidency – by the time it is concluded.

A much more immediate concern is the 2016 local government elections and the damage an ugly and protracted battle over Nkandla may do to the ANC.

While local government elections are more about ground-level issues like sanitation, water and street lighting, the Nkandla scandal may resonate more powerfully in the metros – where the ANC already lost support in the national elections and is in danger of losing control of Tshwane, Johannesburg and Nelson Mandela Bay next time around.

Voters weighing their frustrations with local government failures against Nkandla extravagance may be inclined to see in it an embodiment of what has gone wrong with the ANC – and punish it as a result. The more heavy-handed the governing party and its security cluster ministers are in trying to keep a lid on the scandal, the more closely the ANC will be identified with it – and the greater the damage will be.

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Weekend Argus