If President Jacob Zuma does not blink on the Nkandla scandal, he could find it heading down a very, very uncomfortable legal path.
The argument would go something like this: President Jacob Zuma failed to take appropriate action on Nkandla. By doing so, he knowingly undermined the office of the public protector and the Constitution. That, in turn, caused others to believe they could act with impunity – doing untold harm to South Africa and its people.
Or that would be the argument if it follows the rough draft written by public protector Thuli Madonsela, and if Zuma does not reverse his seemingly firm decision to largely ignore her on Nkandla.
Even for a president who has, just in the past two weeks, been accused in courts of blocking legal processes without any reason and not doing enough to fight corruption, facing such an argument would be uncomfortable. But in theory the implications could go well beyond discomfort to providing a basis for impeachment and a full-blown constitutional crisis.
The alternative at worst implies that Zuma will have to repay some of the state money spent on his Nkandla residence, and so implicitly admit that he and his family unduly benefitted from the R250-million project.
Zuma’s unscheduled exit
Both the City Press and Sunday Times on Sunday reported on a letter Madonsela wrote to Zuma on the same day Zuma made an unscheduled exit from Parliament in the face of a revolt by MPs of the Economic Freedom Fighters (EFF).
In the letter, Madonsela meticulously dismantles Zuma’s position on Nkandla, pointing out inconsistencies and framing those in constitutional terms, even as she apologises for confronting him in such fashion.
“I sincerely regret having to approach you in this matter,” she writes. “The alternative is that I advise complainants and the National Assembly that there is no engagement on the report or implementation of remedial action.”
Madonsela published a report of nearly 450 pages on Nkandla in March, which notably found Zuma had breached ethics rules and must repay some of the Nkandla construction costs. Zuma, on August 14, submitted a 20-page “report to the speaker” that his office and the ANC insisted at the time constitutes a response to Madonsela’s findings.
Madonsela, in Thursday’s seven-page letter with a notably heavy use of the word “respectfully”, disagrees.
“I could find no indication in your report that you were responding to the contents of my report, commenting on it and were reporting to the National Assembly on the actions that you have taken or are taking to implement remedial action. I have also noticed that your report excludes some of my findings and remedial action.”
Madonsela lays out other procedural and technical issues in her letter, including that:
- She last officially heard from the presidency in April and had not been “favoured” with a response to her report;
- Zuma told Parliament he would respond to Madonsela’s report when he received another Nkandla report, that of the Special Investigating Unit. He has since received that report;
- Zuma had appointed the minister of police to determine how much he should repay on Nkandla without accepting, rejecting, or even commenting on the only finding that he should repay money – that of Madonsela herself.
“I am concerned that your decision gives an impression that you are unhappy with my finding that you should pay and [my] point of view that the National Treasury and the South African Police Service should only assist you to quantify the reasonable amount to be paid,” Madonsela writes.
In other sections of her letter, Madonsela points to the constitutional authority under which her investigation was conducted – in decidedly pointed fashion.
“As you are aware, section 181(3) of the Constitution provides that organs of state (which includes the president) must assist and protect the institution of the public protector to ensure its independence, impartiality, dignity, and effectiveness,” Madonsela writes, before urging Zuma to actually respond to Parliament on her report.
Continuing down the path he is on, she warns “would not augur well for expectations that the rule of law is being upheld at all levels, including at your level as the pinnacle of government. It may also encourage impunity at various levels of the state”.
The public protector also points out that her reports can be overturned by a court, but not by executive decision.
Getting the job done
Madonsela has often noted that her office relies on “soft power”, the use of persuasion, cajoling, and to some extent public sentiment, to get the job done. Her letter to Zuma, however, reads more like a battle plan for legal action by a third party.
In theory those who complained to Madonsela about Nkandla in the first place, including the Democratic Alliance, have the legal standing to apply that plan. Should Zuma (now warned of the implications by way of her letter) still fail to take Madonsela’s Nkandla findings into account, those complainants can turn to the courts. Ultimately, such an action would almost certainly end up in the Constitutional Court.
And it is clear that in Madonsela’s view, at least, Zuma would be hard pressed to explain himself to the Constitutional Court, should he fail to back down.
Zuma himself on Thursday put in place the last legal requirement for such a challenge, shortly before the EFF took over Parliament in their own protest at what the party described as Zuma’s failure to answer the Nkandla questions posed by Madonsela’s report.
Madonsela, in her letter sent on the same day, carefully does not put words into the mouth of Zuma. Rather than accuse Zuma himself of saying his 20-page report constitutes his only response to her findings, Madonsela points to “public perception as reflected in recent media reports” to that effect.
But before Thursday’s Parliamentary session broke down entirely, Zuma ended up saying exactly that.
“As I said in my answering the question, I have responded to the reports about Nkandla,” Zuma told the EFF. “The reports about Nkandla is not only the public protector ... I have responded to all the reports as I am supposed to ... ”