Is the clock ticking on Zuma's Presidency?
It's been months since the release of Public Protector Thuli Madonsela's report into the security upgrades at the president's homestead in Nkandla. The president was required to respond to the report within 14 days yet, tellingly, his final response came 148 days later. Now it is up to Parliament's ad-hoc committee to pronounce on the response.
Meanwhile in a rather pre-emptory move, ANC Chief Whip, Stone Sizani has already declared the ANC satisfied with the president's report.
Formally, Jacob Zuma adhered to the 14 day deadline by submitting an anodyne reply saying that the matter was receiving his attention and that he was waiting on the report of the Special Investigative Unit (SIU) into the matter. In that reply, he seemed to give equivalence to the reports of his cluster of Cabinet ministers, the SIU report and that of the public protector. Suggesting that a report by Zuma's own ministers into their own conduct and that of their boss on whom they are dependent for their jobs has the same heft as that of an independent, Constitutional body, namely the public protector's office, is just plain wrong. In addition, the SIU's investigation happens via the dictates of a proclamation signed by the president himself. So, it cannot be said to have the same level of independence as the public protector's investigation. In law, the public protector's report has primacy being a constitutional body.
The president's 20 page reply will be dealt with by an ad-hoc committee. The reply is a grand lesson in obfuscation and certainly does not deal with the public protector's report in any amount of detail. In fact, the report is very clear in stating that it is a response to the Joint Standing Committee on Intelligence (JSCI), the SIU investigations and the public protector's report. Again therefore equating the three reports yet again.
The president's reply skirts the issues in a number of ways.
As with the now infamous landing of the Guptas' airplane at Waterkloof Air Force Base, Zuma seems to be asking everyone else to take responsibility- everyone except him of course. It is quite extraordinary that in a modern democracy, a president should have so little knowledge of matters which directly affect him. In the 'Guptagate' matter, the blame was pinned on bureaucrats and those in the SANDF who seemingly believed that they ought to allow the landing but had no direct instruction to do so, it was claimed.
The Guptas remain close to the president and yet no further interrogation of vested interests, patronage and political connection happened. Of course, the one who took the 'fall' for Zuma in the Guptagate matter, Bruce Koloane has now been richly rewarded with a diplomatic posting in the Netherlands.
The first seven pages of Zuma's response are largely dedicated to background information stretching back to his involvement in politics before he became president and even as far as the pre-election political violence in KwaZula-Natal. He spends a considerable amount of time explaining how Nkandla was developed over the years and ironically outlines what an impoverished area the homestead is located in. The report starts rather bitingly as a response to 'certain sectors' of society which expressed concern about the security upgrades at Nkandla and then in paragraph two, goes on to obliquely attack those who have raised these issues when it states that, "The security which attaches to the president….cannot be denigrated (sic) to narrow party-political interests…"
The very long introduction also mentions that Zuma obtained a home loan and that Nkandla is "still subject to a mortgage". Interestingly, the public protector was unable to obtain evidence of this mortgage from the president himself and so could not find that he mislead Parliament when he said the property was bonded. One of the ways in which we might have been satisfied that Zuma indeed paid for the non security-related improvements to Nkandla would surely have been for him simply to provide the mortgage documents and put the matter to rest once and for all?
The report continues to offer an explanation for the central role of Nkandla and that it is a place where people "continually" seek the president's "advice, support and counsel" and therefore security is needed.
Interestingly, Zuma admits that he "facilitated" a meeting between government officials responsible for the security upgrades and his private architect, Minenhle Makhanya who was already engaged in building work at the homestead, "so that they would be appraised of the pre-existing plans". "From time to time", Zuma says he received briefings but he states plainly that he was not "intimately involved with the finer details". And so already less than half-way through the response one can almost smell the punch-line. It's vintage Jacob Zuma- others were responsible and he knew little to nothing about the detail. Somehow it never occurred to the president to even question the size and cost of the development despite media reports that the development itself was growing in extent and cost. Zuma did however have enough information to advise that the bulletproof windows were an "excessive encroachment" on his "use and enjoyment" of the property. In defence of the houses built for security personnel, Zuma states that "Persons drawn from rural communities can and do play a role in the development of our constitutional democracy". Quite how the participation of rural people in our democracy is relevant to the substance of the public protector's report is unclear apart from to confuse and conflate issues.
What is specifically interesting amidst all the obfuscation is that Zuma states that the "Public Protector principally found that president Zuma did not mislead Parliament of violate the Executive Ethics Code when he addressed Parliament regarding the security upgrades". The wording forces us to forget that in fact Madonsela had found that, "(The President's ) failure to act in protection of state resources constitutes a violation of paragraph two 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". Of course very cleverly Zuma has confined applying his mind to whether he breached the Executive Code while speaking in Parliament.
The president's response on Nkandla again seems to be that the amounts spent on security upgrades were mostly reasonable. He has however asked that the rules related to these upgrades be "urgently" overhauled to prevent such excess in future. In addition, over the past months we have seen a few officials take the wrap for Nkandla and it seems as if the Makhanya who initially went to ground, might have to fall on his sword since he is being pursued by the SIU.
The public protector also recommended that Zuma takes steps, "with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the Department of Public Works (DPW) at his private residence that do not relate to security, and which include Visitors' Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool". And that he "pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document".
What is most curious and probably disturbing is Zuma's passing of the buck to new Minister of Police Nathi Nhleko to determine whether Zuma himself is liable to pay back money to the fiscus. Madonsela was clear that this determination ought to be made by National Treasury yet Zuma has chosen to cherry-pick recommendations from the JSCI report and has laid the blame at the door of every official imaginable.
Nhleko is a junior minister in Zuma's Cabinet having only recently been appointed to the position. It will be an extraordinary test of his will to expect him to find against his boss and ask him to reimburse the fiscus to the extent which he has been enriched. But what is even more opaque is the request by Zuma that Nhleko take into consideration "past practices and culture" when making his finding. This statement is problematic for a number of reasons, not least of which is that what the president is subtly trying to do is to introduce an alternative set of societal codes which sit alongside the Constitution. It tells us perhaps what a threat president Zuma himself is to the upholding of the rule of law and Constitutional principles. Nkandla was no 'cultural' issue. It was a very simple case of excess and waste as the public protector found in her detailed report. The president's response has included a reference to the need for rural people to also be "a part of Constitutional democracy". According to the president's response the reason for the security upgrades was precisely because Nkandla is located in a rural area that such upgrades were needed. Given the endemic poverty surrounding the areas immediately near Nkandla it seems a difficult argument to make that Nkandla is of any benefit to local communities. In fact, the public protector specifically found that the hospital built for Zuma and his family would not revert to the state once he left office. This is unlike the hospital built for former President Mandela at Qunu - incidentally, the hospital at Qunu was only built for Madiba three years ago.
If as Zuma says he was unaware of the costs of the upgrades then it points to a president blissfully unaware of excessive spending even during these times of austerity. Did Zuma never question the upgrades and developments when he visited Nkandla? From photographic evidence, the excess is pretty clear. When his security cluster of ministers was under-estimating our collective intelligence with talk of 'fire pools', did the president not raise his concerns?
At best, the president's lack of knowledge is baffling, showing a disinterest in expenditure which directly affects him and at worst it simply shows that he is inured to public opinion and quite prepared to undermine a constitutionally protected body in pursuit of his personal benefit. Either scenario is damaging for the country. On Zuma's watch, we have had Nkandla, Guptagate and lest we forget Marikana and the deaths of 13 soldiers in the Central African Republic. Surely, by now those close to the president should be seeing the clock ticking on this Presidency?
Parliament has an opportunity now to show its muscle and deal with this matter in a way which advances transparency and accountability or it can choose to collapse under the weight of executive-mindedness thereby doing our democracy a singular disservice.
Judith February is a senior analyst at the Institute for Security Studies (ISS).