amaBhungane's Lionel Faull talks us through the Nkandla report and what it means for Jacob Zuma
Wednesday is D-day for President Jacob Zuma to inform Parliament and the country on what action he is going to take regarding public protector Thuli Madonsela's findings on the multimillion-rand upgrades at his private home in Nkandla.
Madonsela instructed Zuma to report to the National Assembly on his comments and actions on the Nkandla report within 14 days of the day she released it, in terms of the Executive Members Ethics Act.
By Tuesday evening, the 13th day, Zuma had still not submitted his comments.
In the meantime, opposition parties have continued to pile pressure on Parliament to act, but the legislature maintained it would wait for Zuma's submission before taking any action regarding the matter.
In a response to the Freedom Front Plus (FF Plus) on Monday, National Assembly speaker Max Sisulu wrote: "The report by the president will be formally tabled in the National Assembly and I will accordingly await the report and thereafter consult with all political parties before deciding on any parliamentary process."
The FF Plus requested that Sisulu reconvene the National Assembly so that a debate into the Nkandla report could be held as a matter of public importance.
On March 25, Sisulu announced he was considering a request from the Democratic Alliance (DA) for the appointment of an ad hoc committee to look at Madonsela's findings.
But Sisulu's comrade in the ANC, who is the party's political head in Parliament, disagrees with this approach.
A day after Sisulu's announcement, ANC chief whip in the National Assembly Stone Sizani said it was a naïve or flawed comprehension of established procedure, and that anyone who asked Parliament to form a committee to consider impeachment could deal with the report through a thorough parliamentary process.
Sizani's claim is that Madonsela should have submitted her report to the National Assembly as someone who accounts to Parliament.
He said in terms of the National Assembly rule 302, the speaker must, upon receipt of the report, table it without delay to enable all members of the National Assembly to formally have it before them. The rules then prescribe that the speaker must refer the report to an appropriate committee for consideration and report to the House.
"The emphasis should be made here that the tabling of the report does not necessitate a sitting of the House. The House only convenes after the finalisation of the committee process on the report in order to consider the committee's report," he said.
The speaker of the National Assembly and the chief whip of the ruling party are the top two most senior people in Parliament in deciding the parliamentary programme.
The DA, which has continuously called on Parliament to act, has a different take on the matter, although their interpretation is not far removed from Sisulu's.
"I certainly believe Max Sisulu to be a man of integrity who has the best interests of Parliament at heart. If, for example, I thought he was particularly mischievous, which I don't, the Constitution would still be a check and balance against that mischief," said DA parliamentary leader Lindiwe Mazibuko.
"He would still have a duty to investigate this matter. It would not be a choice, it would not be a question of whether, it would only be a question of when," said Mazibuko responding to a question of whether she thought Sisulu was playing political games by not taking action sooner.
The DA said at a press conference on Tuesday that it was concerned that the actions to appoint an ad hoc committee did not take place.
DA chief whip Watty Watson said the matter was not about Sisulu weighing up the pros and cons, but as a presiding officer of Parliament, he has an obligation under the Constitution to proceed with this matter.
"It's only a question of when. He has indicated in his letter that he is considering the motion and he will be taking steps, which he has not done [yet]."
Mazibuko, who tabled a motion on March 25 for Parliament to establish an ad hoc committee to deal with the report, said the submission of a substantive motion against a member of the House or against somebody who enjoys all the rights and benefits of a member of the House, a category the president falls into, is a process that has to take place.
"If the prima facie evidence is substantial enough, the member against whom such an accusation is made has an opportunity to defend themselves before an ad hoc committee that is put together on a proportional representation basis in Parliament.
"That is what happens, that is an impeachment. The Constitution doesn't refer to it as an impeachment, it refers to it as a removal of the president from office in section 89. The word to impeach is essentially to investigate," said Mazibuko.
The impeachment process is the investigation the ad hoc committee will conduct. And Parliament in that respect has a lot of powers, powers of subpoena, which makes it as much an investigative organ as the public protector, said Mazibuko.
"We are saying Parliament must take this motion, hand it over to an ad hoc committee to investigate, then present findings to the House, on which the House must vote to decide whether the president must be removed from office.
"In saying he is going to consider whether to set up an ad hoc committee, the speaker is saying, 'I am considering whether to impeach the president'," said Mazibuko.
The DA has, since the Nkandla report publication on March 19, opened criminal charges against Zuma, tabled a motion for a parliamentary committee to impeach Zuma and is seeking legal opinion on Zuma's statement that he has done "nothing wrong" and won't repay the money he has been advised by the public protector to repay.
On Tuesday morning, the DA presented "evidence" to journalists that Zuma might have on two occasions misled Parliament when he claimed ignorance about the developments at his home.
Madonsela found that Zuma did not wilfully lie to Parliament and that he made what appeared to be a bona fide mistake when he told Parliament that his family had built their own houses and had not benefited from the state.
"I have accepted the evidence that he addressed Parliament in good faith and was not thinking about the visitors' centre but his family dwellings when he made the statement. While his conduct could accordingly be legitimately construed as misleading Parliament, it appears to have been a bona fide mistake … ," she said.
But the DA disagrees. The party said it would be submitting this information to Sisulu to support its proposed removal of Zuma.
"This new evidence suggests that President Zuma may have deliberately misled Parliament, and violated the Constitution and the law," said DA caucus chairperson Wilmot James.
He said this warranted a full parliamentary investigation – which is specifically mandated by the motion to impeach Zuma.
Mazibuko added that while the DA respected and accepted Madonsela's findings on whether Zuma misled the National Assembly or not, there were a number of other statements Zuma made before Parliament that had not been resolved, or which were not considered by Madonsela's office.
These included the question of whether or not Zuma was paying any bond on Nkandla.
In her report, Madonsela said she sent a letter to the president to inquire if he misled Parliament by making a false statement about the financing of developments at Nkandla. She specifically requested clarity on the bond and proof.
Zuma declined the opportunity to respond to the allegation and he refused her access to his bond documents, despite her attempts to get this information.
"It must be asked why, if he had nothing to hide, he did not fully co-operate with this request," said Mazibuko.
She said Zuma should therefore still explain to the National Assembly why he did not fully answer the public protector and, more importantly, furnish copies of his bond as was requested.
"This has major implications for whether or not they can consider his statement before the House as truthful."
Mazibuko said the special ad hoc or "impeachment" committee would have the power to subpoena this document during its investigation.
Another outstanding matter is whether or not Zuma was aware of the details of the project.
"There is very clear evidence provided in the public protector's report that the president not only had detailed knowledge, but that he was intricately involved."
Mazibuko cited the fact that Zuma had a meeting with officials of the public works department and the South African Police Service on August 12 2012 to inform him of security measures that were to be installed; his introduction of Minenhle Makhanya as his personal architect to senior government officials; and his complaint in 2010 about the slow progress with the implementation of the project, making it clear he knew about the work being done.
The DA said Zuma failed to answer a number of key questions, including:
- Whether he or the presidency requested that security measures be installed at his private residence;
- whether he was at any stage informed of the cost of the proposed security measures; whether a notice declaring his private residence a National Key Point was served on him;
- whether he received the letter consisting of the detailed report on the progress made with the project that was sent by former public works minister Gwen Mahlangu-Nkabinde on November 5 2010;
- whether he would be willing to disclose the amount he paid for the construction of the new dwellings on his property; and
- if he at any stage enquired into the cost of the project.