Nkandla: Courts have little power if Zuma won't play ball
Opposition parties and civil society groups repeatedly turned to the courts this year as government turned a deaf ear to their concerns, and President Jacob Zuma's refusal to release the so-called "spy tapes" shows a serious vulnerability in this tactic.
The recordings of secret meetings between politicians, intelligence officials, members of the Scorpions, and the National Prosecuting Authority are the reason why corruption charges against Zuma were dropped in 2009, paving the way for his rise to the presidency. A legal bid by the Democratic Alliance to have the tapes released has gone nowhere, despite a Supreme Court of Appeal ruling requiring them to be handed over.
Zuma's lawyer Michael Hulley, who it was revealed was in possession of the tapes, refused to part with them.
Mark Heywood, executive director of civil rights NGO Section27, said the real fear raised by the spy tapes issue was that should government decide to flagrantly defy a court order, there would be little to stop them from also ignoring the courts when it came to issues concerning the delivery of textbooks to schools or the provision of access to healthcare.
"The day when government or a faction of government says it is going to ignore the courts is the day when we face an even greater vulnerability," he said.
Heywood said while the courts had an important role to play in our democracy, the system was not meant to work by people having to resort to taking issues to court every time government displayed an abuse of power. Instead, engagements between government and civil society should be stressed, and Parliament should champion civilian interests.
"If you take the story of Nkandla's expenditure, prima facie R240-million has been spent – that's a matter of huge concern. It shouldn't be the DA that's at the forefront of demanding an explanation; it should be Parliament as a whole," he said.
"When you take the oath of office to become a parliamentarian or Cabinet member, you don't take an oath of office to the ANC, you take an oath of office to the Constitution," he said.
"Fulfilling a constitutional duty is not a hostile act to your own party."
But ruling party MPs are seldom seen taking a stance against questionable decisions made by government.
Earlier this year, the ANC instituted disciplinary proceedings against MPs Ben Turok and Gloria Borman after they ignored an instruction to vote for the contested Protection of State Information Bill.
On Sunday the DA issued an ultimatum to Zuma, saying he had 72 hours to answer questions about Nkandla or the party would take the matter to court.
The opposition party, which clashed with ANC supporters on the road to Nkandla, where its leaders had hoped to carry out a site inspection of the president's high-security homestead, has said that all of its attempts to get answers concerning the R240-million reportedly spent there on security upgrades had been ignored.
Last week Moloto Mothapo, spokesperson for the ANC chief whip, told the Mail & Guardian that the DA were like "puppies barking at the moon", and that the party would not take action on the Nkandla issue unless there was concrete proof of alleged impropriety.
Acting speaker Nomaindia Mfeketo also disallowed debate on Nkandla in the National Assembly, and the standing committee on public accounts turned down an initial request to investigate the matter.
Alison Tilley, executive director of the Open Democracy Advice Centre, said the state's failure to disclose details about the spending at Nkandla was "dubious".
She said an opposition party should not have to make a Promotion of Access to Information request to get access to documents relating to Nkandla, and government should not have to rely on the Key Points Act to withhold them.
"I don’t think there’s a constitutional argument to with-hold the documents. Reliance on those Acts is very dubious," Tilley said.
The global movement to improve government transparency through open information is growing. More and more, governments are using the internet to disseminate information that citizens have a right to access – that is, everything barring information protected under very specific security or secrecy laws.
For example, the European Union publishes all information on grant beneficiaries, procurement contracts and administrative expenditure online.
Meanwhile, in the UK a white paper on civil service reform is looking to make "open policy making" the default, allowing for public participation at every stage of decision-making.
But in South Africa, little is being done to further attempts to improve transparency and so improve accountability. Tilley said government's failure to implement the transparency policies in place here was "troubling".
"We are not implementing our transparency laws and policies, and we're not making any progress on those policies [we've committed to]," she said.
As part of its commitment to the Open Governance Partnership, South Africa has committed to strengthening corruption-fighting instruments and mechanisms for meaningful citizen engagement in service delivery improvement and policy development, and to hold public servants accountable to the communities they serve.
Yet, as evidenced by a string of negative findings from the offices of the public protector and the auditor general, government can hardly claim to have made serious inroads in any of these areas.
Constitutional law expert Pierre De Vos said heading to court every time somebody flouts a law or the Constitution put the courts in a difficult position. Instead, voters should demand accountability from the party they voted for. But this is difficult because in the South African electoral system, citizens vote for a party, not a person, and that person is accountable to senior party members, not to the electorate.
De Vos said that while Parliament could subpoena ministers or MPs to give testimony before it, this seldom happens because it would require officials to put their jobs at risk and stand up to party heavyweights.
"Parliament works according to the proportional representation of parties. So if ANC members of a committee wish to protect the minister who is their boss in the party, then they're not going to subpoena anybody," he said.
In 2010 the ANC axed former MP Nyami Booi after he clashed with then defence minister Lindiwe Sisulu, who refused to hand over reports on the state of the military over to the defence committee he headed in Parliament.
"Unless we change the way that party lists are compiled and make it a democratic process, or we change the electoral system, or preferably both, you're never going to have accountability in Parliament," he said.