Blurred lines: Zuma's non-response to the Nkandla report
President Jacob Zuma had 14 days to respond to the public protector's report on the security upgrades at his Nkandla residence. It took him 148 days to do so. Despite having an extra 134 days to read, digest and respond to the report, one would swear that neither the president nor whomever it was who wrote his response had actually read Thuli Madonsela's report. Either that, or Zuma is deliberately choosing to ignore the key findings and recommendations. Spare a thought though for the new Minister of Police Nkosinathi Nhleko, who had a blazing hot potato dropped in his lap. Nhleko must determine how much, if anything, his boss must pay back to the state.
Of course, nobody had really expected Zuma to admit that the state spending on his private home at Nkandla was excessive and "unconscionable", as Madonsela had established. Neither did anyone expect that the president would volunteer to pay back a "reasonable percentage" of the funds spent on non-security installations, which he and his family unduly benefitted from. These include the visitor's centre, cattle kraal, chicken run, amphitheatre and swimming pool. Madonsela found that a conservative estimation of the total cost of the upgrades was R246 million, excluding lifetime maintenance costs.
With everything that Zuma has been accused of in the past 12 years, his response is always that he was not aware of any wrongdoing and that someone else should take responsibility. But there are parts of Madonsela's report "Secure in Comfort" that cannot simply be waved away, especially when the pronouncements relate to a sitting president.
"It is my considered view that the president, as 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, but failed to discharge his responsibilities in terms of the latter. I believe the president should have ideally asked questions regarding the scale, cost and affordability of the Nkandla Project. He may also have benchmarked with some of his colleagues. He also may have asked whose idea were some of these measures and viewed them with circumspection given Mr (Minenhle) Makhanya's (Zuma's architect) non-security background and the potential of misguided belief that his main role was to please the President as his client and benefactor," Madonsela said in her report.
She went on to say: "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 Cabinet, as contemplated by section 96 of the Constitution."
It is inconceivable that the president would choose not to comment on such serious pronouncements against him, and provide an explanation to undo the damage. After all, he still has five years to govern South Africa, during which time he remains the custodian of the state resources he is accused of not protecting. But from the report Zuma submitted to the Speaker of the National Assembly on Thursday, he seems not to be troubled much by the damning findings against him. If anything, his recommendations give the impression that the matter is something far removed from the president himself.
Zuma had delayed submitting a response to Madonsela's report to Parliament as he said he had to wait for a report from the Special Investigating Unit (SIU), which was also investigating the Nkandla upgrades. The SIU investigation had, in fact, nothing to do with the public protector's report, but the president decided that he wanted to respond to both, as well as the report of the Joint Standing Committee on Intelligence (JSCI) based on a government task team investigation. Despite concerns expressed that Zuma was undermining a Chapter Nine institution by conflating Madonsela's report with the other two, nobody could really compel him to submit a response until he was good and ready.
It appears that mid-August, long after the national elections, while Parliament is in recess, and while Zuma himself is away in Angola, was the opportune moment to submit the report. In the 20-page report, Zuma says he has "carefully studied, evaluated and received advice" on the three reports to determine what his "appropriate response" should be. He says his report is not a "critique" of the three reports, and the fact that he restates or offers no comment on, among others, the analysis, findings and conclusions "is not reflective of the fact that I am accepting of the same".
Zuma provides detailed background of the Nkandla area and his home, and how the security upgrades came to be undertaken. "Like most South Africans, I am particularly proud of my community and never miss an opportunity to go home to Nkandla - the demands of my work schedule permitting. I sometimes wish it otherwise, but I do not shed my status as president when I am at home in Nkandla. People continually visit me, seek my advice, support and counsel on a whole range of matters," Zuma says in the report.
"Similarly, matters of government do not grind to a halt during these all too infrequent visits to my homestead and consequently my role as Head of the Executive is likewise not suspended during these visits."
Zuma says he facilitated a meeting between Makhanya and the former Public Works Minister Geoff Doidge, police and other government officials. Makhanya was already engaged with building work at the homestead, and Zuma says he wanted as little disruption as possible to the work already commissioned.
"From time to time I received briefings both formally and informally from the various ministers engaged with the security enhancements. I was advised at some stage of the need to declare the homestead as a National Security Key Point. Whilst I took no exception to such declaration, I was not intimately involved in the finer details," Zuma said.
At these briefings, Zuma says he expressed concerns about "inordinately lengthy delays" which impacted on his family. "Equally, I found some of the security features like bullet-proof windows an excessive encroachment on my use and enjoyment of my property."
After sketching out the findings of all the reports, Zuma says he has been "greatly assisted" by them. Despite the numerous recommendations in the Public Protector's report alone, Zuma presents five actions that he deemed to be "appropriate".
Nhleko must report to Cabinet as to whether the president is liable for any contribution regarding the upgrades. Zuma says Nhleko must consider "the legislation, past practices, culture and findings contained in the respective reports" to determine this.
Madonsela's recommendation was quite different from this. Her report said Zuma should:
Take steps, with the assistance of the National Treasury and the SAPS (South African Police Service), to determine the reasonable cost of the measures implemented by the DPW (Department of Public Works) at his private residence that do not relate to security, and which include [the] visitor's centre, the amphitheatre, the cattle kraal and the chicken run [and] the swimming pool.
Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
Madonsela had also stated in her report that Zuma should "reprimand the ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused".
Zuma's report makes no mention of whether he has reprimanded any ministers or still intends to do so. He however wants the Police Minister to expedite the review of the National Key Points Act, and the Public Works Minister to urgently report to Cabinet on the "review of the protocols and procedures regarding procurement, expenditure and oversight applicable to prestige and related projects".
Zuma says the security cluster ministers and Public Works Minister must also report to Cabinet on "their clearly defined roles and responsibilities" when dealing with the security of presidents and deputy presidents. His final instruction is that there must be a review of Cabinet policy relating to presidents, deputy presidents, and former presidents and deputy presidents, "with a view to setting parameters for expenditure and implementation".
The matter now moves to Parliament where opposition parties will push for the establishment of an ad hoc committee to study Zuma's response. The Democratic Alliance (DA) has already said the president's report undermines the public protector's findings and that it was an attempt by Zuma to act as both judge and jury on the matter. DA parliamentary leader Mmusi Maimane said it was "blatantly scandalous" to require Nhleko, who reports to Zuma, to determine the amount Zuma owes to the state. Maimane said they would demand that Zuma appear before the parliamentary ad hoc committee to explain himself.
The office of the ANC chief whip did not comment on the contents of Zuma's report but welcomed its submission to Parliament. "Our longstanding view has been that only a comprehensive report would enable Parliament to qualitatively reflect and process the matter in the interest of people of South Africa. In this regard, we commend the President for the comprehensive response as per his commitment," Stone Sizani's office said in a statement.
The scene is set for an almighty bun fight in Parliament on the matter, with the ANC closing ranks to protect the President and opposition parties trying every means possible to hold him to account. The one thing Zuma will want to avoid is being summoned to give evidence before the committee. His deputy Cyril Ramaphosa being grilled by Advocate Dali Mpofu at the Marikana Commission will be nothing compared to Zuma appearing before a committee that Economic Freedom Fighters leader Julius Malema is sitting on.
This scant report, which provides no accountability for the wanton spending, multiple failures by state departments and ethical violations by the president, is likely to be the most South Africa will hear from Zuma on the Nkandla matter. Once the SIU releases its report publicly and Parliament begins its process to deliberate the matter, it will be someone else's baby.
Madonsela must, of course, still study the president's report to check whether his instructions are consistent with her recommendations. She has the power to subpoena those who do not comply with her reports, as she has done with the Communications Minister Faith Muthambi regarding the Hlaudi Motsoeneng matter.
But this is the president of the Republic Madonsela would be dealing with and the issue can veer into a contestation of constitutional powers. By now, Zuma's pattern of ruling by obfuscation, silence and indefinite delays is there for all to see. As many who have gone up against him before, even a Chapter Nine institution is likely to find Zuma an invincible opponent.
This column first appeared on _ Daily Maverick._