Judith February: The discomfort of Nkandla

Nkandla never became the 'make or break' election issue which opposition parties were trying to make it, yet, even a month after the elections, it continues to simmer away just beneath the surface and to cause a certain level of discomfort.

Public Protector Thuli Madonsela earlier this year provided a thorough report on the maladministration and 'unconscionable', 'unlawful' and 'excessive' expenditure of R246 million on upgrades at President Jacob Zuma's homestead at Nkandla. Yet, Madonsela was unable to find that Zuma had misled Parliament when he said he had a bond over the property. Technically she could not since for some reason Zuma was not prepared to divulge the bond documents. That remains the biggest smoking gun in this matter. Surely the president is in a position to make short shrift of the public protector's report by at least showing that there was a bond over the property and he incurred personal liability?

Of course, if Zuma did not incur personal liability then it begs the question whether he has disclosed such an interest as a 'gift' in terms of the Executive Code of Ethics? However, Zuma also told Parliament that he received contributions ('a benefit') from his 'family' for the renovations at Nkandla which might technically also not have to be declared in terms of s6 (3) of the code. So we might never be able to get to the bottom of who the familial benefactors were because even if the benefit was a 'loan' as defined in the code, it would be a liability and disclosed in the confidential section of the register.

But so many questions remain about this very costly project, the permission granted, the tenders gone wrong and, moreover, the missing architect who seemed to be in total control of the project with the president's blessing. The president denied intimate involvement, yet his personal architect, Minenhle Makhanya, whom he brought onto the project, was found to have wielded 'state power' according to Madonsela. Given that the public protector reports to Parliament, her report needs to be dealt with by Parliament. Yet, there seems to have been several delays and equivocation, first by the president himself in his initial response to the report and now by the new Speaker of the National Assembly Baleka Mbete.

In the initial response to Parliament, within the 14 days granted by Madonsela, Zuma failed to provide Parliament with any sort of substantive response to the report's findings. Instead, an anodyne response was sent to former speaker, Max Sisulu, which appeared to equate the public protector's report with that of an investigation into Nkandla by the Special Investigating Unit (SIU). To equate the two is quite obviously erroneous since the public protector is an institution constitutionally mandated to investigate maladministration. It therefore enjoys special protection and its findings must be taken seriously by those in power if our constitutional framework is to enjoy the legitimacy of citizens. The president establishes the terms of reference of SIU investigations and given that the president himself was found to have breached the executive code of ethics on this project, the SIU is likely to be constrained to only investigate officials with government departments and not the political principles who exercise influence over these officials. It is therefore disingenuous to equate the two investigative bodies when Madonsela's report clearly has constitutional primacy.

Then the buffoonish security cluster, since replaced in a Cabinet reshuffle, announced its intention to take the public protector's report on review. This seems to have been placed on the back-burner with new ministers seeming to think differently. Would the president really want the Nkandla development to undergo the forensic scrutiny of a court case, particularly when he allegedly flouted the law by not answering 18 of the 29 questions put to him by Madonsela as part of her investigation? One might imagine not.

This week, Zuma wrote to the new speaker advising that he was in receipt of the SIU report and would furnish a report to Parliament within 30 days. Let's not hold our collective breath on this one. Already, the new speaker seems to be poised to disregard her constitutional duty in order to do a hatchet job for Zuma on this one. The former speaker presided over the formation of an ad-hoc committee to report to the house on Madonsela's report. That was in the dying days of the last Parliament and Sisulu has since paid the political price for not being willing to compromise the integrity of his position as parliamentary speaker.

That ad-hoc committee decided that there was insufficient time to deal with the matter and the committee should be revived by the fifth and current Parliament. The Democratic Alliance (DA) is busy trying to engage Mbete on this given that the previous committee's decisions are not binding on the new Parliament.

We seem to be in the realm of technical interpretation of the rules of Parliament at this point. According to the rules, an ad-hoc committee can only be established for a specific task and by a 'resolution of the National Assembly' or 'during an adjournment of the assembly for a period of more than 14 days, by the speaker after consulting the Chief Whip and the most senior whip of each of the other parties'. The DA, in an exchange of letters with the speaker, argues that Parliament is technically adjourned now as it is more than 14 days since its last sitting on 21 May. 'Adjournment' is defined on Parliament's website in the glossary as, 'The closure of business of a sitting or session of the House or one of its committees'. Quite how binding this definitional glossary is, is hard to tell, yet it provides some interpretative suggestion, albeit limited.

While the DA may well be technically right, there is a sense of an impending uphill battle between Mbete and the DA's James Selfe on this. Knowing they do not have the numbers to push for a resolution, the DA will need to appeal to the speaker on this. Of course, the president will report to Parliament in 30 days on this and then surely the speaker will need to deal with this matter, or indeed a house resolution will have to be passed. The DA has provided Mbete with a further opportunity to revisit her decision not to set up an ad-hoc committee and will possibly take legal action should she not do so. Of course, placing the matter in the realm of the courts might well lead to it being drawn out, which might well be counter-productive in the end. Really, this is a matter for Parliament and not the courts.

Given that the Nkandla scandal reveals the collapse of ethical decision-making at the highest levels of government, resulting in a waste of public money to the personal benefit of the president, it is of national importance and Parliament should be seized with the matter. The arms deal in 1999/2000 became a leitmotif for Parliament abdicating its responsibility to exercise oversight over the executive when then Speaker Frene Ginwala capitulated to pressure from the ANC and became active in trying to halt any investigation the Public Accounts Committee wished to conduct. It was a low point in our democratic Parliament's history and the sorry Seriti Commission shows how much those in power still need the matter to be swept under the carpet.

This fifth democratic Parliament has the opportunity to do things differently and Mbete has the chance to put aside her instincts as chairperson of the ANC for a moment and allow Parliament to do its constitutional duty. If the technicality of the definition of 'adjournment' becomes a stumbling block, then Members of Parliament should do the right thing and pass a resolution to continue the previous ad-hoc committee's work. Anything less will ensure that this new Parliament is seen simply as a lackey of the executive set on undermining a constitutionally mandated body like the public protector's office in order to protect the personal interests of the president to the detriment of our constitutional democracy and the country as a whole.

Judith February is a senior associate at the Institute for Security Studies (ISS).