Why is Nkandla Thuli Madonsela’s battle?

In an uncharacteristically blunt interview with City Press, Public Protector Thuli Madonsela bemoaned the fact that she was “soft” on President Jacob Zuma in her Nkandla investigation report.

“I made that decision that he benefited unduly. In fact, that was a softer wording,” Madonsela told the newspaper. “I should have said he benefited improperly and unlawfully. That’s the wording already in the Public Protector Act and the Executive Members’ Ethics Act. I can’t change that and it stands as it stands.”

Madonsela is understandably frustrated that the report released by Police Minister Nkosinathi Nhleko was designed to undermine and supersede her findings, as if a member of Cabinet even has the powers and authority to do so. Madonsela said Nhleko’s report was filled with “half-truths, inaccuracies and distortions”.

Madonsela’s report Secure in Comfort was a comprehensive study of the security upgrades at Zuma’s private home at Nkandla, and was a devastating indictment on government for multiple failures of departments, members of Cabinet and the president that led to taxpayers’ money being squandered. But she is right in saying she went soft on Zuma. Madonsela’s findings could have been much worse but she held back on providing a basis for Zuma’s impeachment.

Madonsela said the following in her report:

“It is my considered view that as the president tacitly accepted the implementation of all measures at his residence and has unduly benefited from the enormous capital investment from the non-security installations at his private residence, a reasonable part of the expenditure towards the installations that were not identified as security measures in the list compiled by security experts in pursuit of the security evaluation, should be borne by him and his family.”

She went on to say:

“President Zuma told Parliament that his family had built its own houses and the state had not built any for it or benefited them. This was not true. It is common cause that in the name of security, government built for the president and his family at his private residence a visitor’s centre, cattle kraal and chicken run, swimming pool and amphitheatre among others. The president and his family clearly benefited from this.”

Madonsela found that Zuma’s failure to act to protect state resources, by not monitoring the exorbitant and escalated costs, constituted a violation of the Executive Ethics Code. She said this amounted to “conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”. Her report did not prescribe a remedy for this and in the ensuing hullabaloo, neither did anybody else. If the president’s behaviour is inconsistent with the Constitution, this cannot simply be ignored.

Madonsela probably left it up to Parliament and the citizenry to decide what to do about this, but all focus was on “pay back the money”. She was also guarded on a finding that could have prompted an entirely different political process to just demanding that Zuma pay back some of the costs for undue benefits.

“Regarding the allegation that the President may have misled Parliament and accordingly violated the Executive Ethics Code when he announced that the renovations at his private residence were financed through a bank mortgage bond, I am unable to make a finding,” Madonsela said. “Although having established through the Register of Financial Interests that the president has declared a mortgage bond in respect of his private residence at Nkandla since 2009, I am not able to establish if costs relating to his private renovations were separated from those of the state in the light of using the same contractors around the same time and the evidence of one invoice that had conflated the costs although with no proof of payment.”

Had Madonsela concluded that there was a basis to investigate the president for lying to Parliament, a whole other crisis could have resulted. There would have been a hunt for the bond documents and if these could not be found, or if they did not show proof of financing the renovations, Zuma would now be in serious trouble. She did not do so. What Madonsela did was try and find a reasonable course of action and remedy that would have shown accountability for the Nkandla upgrades on the part of the president and close the door on a much more damaging outcome.

Yet government is determined to ensure that there are no consequences whatsoever for the Zuma and to do so, it requires rubbishing Madonsela’s report and turning her office into a toothless watchdog. Nhleko’s report has questionable standing as members of Cabinet have no powers to override the Public Protector’s findings. Madonsela is therefore insistent that her recommendations still apply.

“The president must pay. I have already said that,” she told City Press. Legal and Constitutional challenges are inevitable now. But Madonsela told the paper that she was reluctant to take the matter to the Constitutional Court herself.

“Where are the people of South Africa?” she asked. “I have authority to take whatever action I can deem fit and that includes me going to court and asking for the court to force them to do something. But if I go to court, I become me as a crusader without a sword… and asking the courts to use their sword to sort out this thing.”

Why does Madonsela have to be crusader on Nkandla at all? The facts speak for itself, people are able to weigh all the information at their disposal and decipher right from wrong. Why is it that Madonsela has to challenge Nhleko, Zuma and the entire ANC caucus in Parliament to protect her office? It is because South Africans are too complacent and are spectators to a scandal they can do nothing about.

The Democratic Alliance and Economic Freedom Fighters are both exploring their legal options and will no doubt campaign for Nhleko’s report to have no standing in Parliament. Zwelinzima Vavi, the currently status-less but prominent voice in society, wants to lead a march to the Union Buildings in support of the Public Protector. On Sunday night, he canvassed views and support for such a march.

There are mutterings from civil society and analysts about Nhleko’s audacity in presenting a report that undermines and disrespects public intelligence. But Madonsela is absolutely right to ask “Where are the people of South Africa?” There is no mass outrage that shows a refusal to be treated like idiots. And for this reason, in all likelihood, the ANC will use its majority in Parliament to endorse Nhleko’s report and disregard the recommendations of a constitutional body.

What happens in future if the Cabinet or ANC caucus does not like the findings of the Auditor General? Or the Independent Electoral Commission? Do they simply write other reports and present them with ridiculous videos? Does the nation sit back and tolerate it?

The people of the country let the opposition political parties lead the challenge, irrespective of the games and interests at play. In the #paybackthemoney noise, South Africans have let it slip by that a sitting president violated the Executive Ethics Code and acted inconsistently with the Constitution. We have also turned a blind eye to the possibility that the president may or may not have lied to Parliament. Both findings are of greater magnitude and more damning than the request to pay back the portion of the costs. The focus on #paybackthemoney effectively pulled the carpet over these truly disturbing issues.

Nhleko’s counter-report to the Public Protector’s is setting a dangerous precedent. Apart from pushing ridiculous claims in the 50-odd pages, it is intended to shut down the matter. If this is allowed to go unchallenged, it will have serious long-term consequences for Chapter Nine institutions and our democracy.

Madonsela is the Public Protector but not the sole sentinel of our society. It should not be her personal battle or responsibility to wage this battle. It should be everyone’s who is vested in sustaining our democratic order. It should be civil society, all political parties and every right thinking citizen. Perhaps more than anyone else, it should be the ANC that led our struggle for democracy and that pledged to protect and defend it. DM