Judith February: ANC conundrum after Nkandla leak

In a world of Julian Assange, Edward Snowden and Wikileaks are we surprised that Public Protector Thuli Madonsela's provisional report on the Nkandla investigation was leaked, landed on someone's desk and then published?

Quite how one interprets S7 (2) of the Public Protector Act and the disclosure of… 'the contents of any document…or the record of any evidence..' has already been opened to debate and suggestions of ambiguity. There might therefore be probably just enough of a window for the Mail & Guardian to escape through should they ever have to raise a defence in court relating to the leak.

Was it right or wrong of the Mail & Guardian to leak a provisional report, many have asked? There seem to be compelling arguments either way. On the one hand, there are those who say that the S7 (2) is clear about the illegality of leaking the provisional report and that it was wrong of the Mail & Guardian to assume that the final report would not be released in due course. Of course, the state's dilatory action on this matter and its invocation of the National Key Points Act and general secrecy relating to Nkandla do not inspire confidence that it would not simply again move to stymie the report's release or in some way undermine the Public Protector's office.

Whatever the source, there are parallel processes happening and we now have some muddied waters to wade through if there is to be any clarity on whether public money was spent on accoutrements other than security.

The first process is the legal investigation, which the Public Protector has virtually completed, whose conclusions have been leaked and published. In between, the Ministry of Public Works conducted its own investigation. However, this report is secret and the bare bones findings were released to the public after the Joint Standing Committee on Intelligence discussed its contents behind closed doors and released select parts of the report. However select, they show there are at the very least gaps of accountability regarding the Nkandla development.

Inter-linked with all this is an intensely political process. It is about the raw power of the president, who, Teflon-like, appears to be able to withstand the slings and arrows of Marikana, Gupta-gate, the foray into the Central African Republic, the 'Malawi' gaffe and Nkandla. But this is a president who knows precisely how to watch his back.

While Zuma has become an ethical liability for the ANC, the question is will he be an electoral liability? And how does the ANC respond to the Public Protector's report when the final version is released - assuming the final version reads similarly to the provisional one? We stand on the cusp of an election, after all.

The ANC's initial response to the release of the provisional report was a cautious one when it pointed to the fact that the information in the public domain was leaked and provisional and therefore cannot be the final word on the matter. Government spokesman Phumla Williams blandly reiterated that there had been no wrongdoing by Zuma. Since then of course the Mantashe-Duarte-Nzimande axis has come out guns blazing against the Public Protector.

Should the final report mirror the provisional one it would pit the state and the president directly against the Public Protector and the evidence upon which the report is based. The Public Protector has a duty to make the final findings public and so Parliament will, in some way or another, be seized of the matter.

For the ANC the conundrum is this: do they kick for touch hoping that they are able, via state apparatus, to take a sledge-hammer to the report and continue trying to discredit Madonsela? Or do they distance themselves from Zuma and wait until after the elections to act? It is entirely inconceivable that the ANC will act against Zuma and remove him in terms of S 89 of the Constitution.

Separately, though the ANC's constitution allows for the calling of a special congress, one senses that we have not yet reached that political moment where the tide has turned against Zuma for such a degree of risk.

Of course, should the ANC suffer an electoral set-back, Zuma would then be a liability. Anything might happen then and it will be messy. The long knives will be out for Zuma, it's only a matter of time. In the meantime, we wait to see how the legal process will unfold and the political discomfort that will inevitably cause.

We have in recent times become so attuned to solving our challenges legally when sometimes the solutions are common-sense political ones. One cannot escape the simple question: forget about whether we can afford Nkandla, can we afford another five years of the Zuma administration constantly distracted by scandal?

That is the unavoidable question the ANC may not be able to defer indefinitely.

Judith February is executive director of democracy and governance at the HSRC. The views expressed are her own.