/ 9 October 2014

Nkandla fiasco reminiscent of arms deal mess

Nkandla Fiasco Reminiscent Of Arms Deal Mess

The most remarkable thing about the parliamentary ad hoc committee on Nkandla was not that the ANC was so single-mindedly cynical in its attempt to cover up for President Jacob Zuma. It was not even how powerfully the opposition has been in pushing the ruling party into its dismal little corner. It is what the opposition, and not the ANC, now looks like.

It has never before, even remotely, been like this. A massive corner has been turned.

Stretched out along one side of committee room E249, with the Democratic Alliance (DA) at one end and the Freedom Front Plus (FF+) and the Inkatha Freedom Party (IFP) at the other, and the Economic Freedom Fighters (EFF) and the Congress of the People wedged between them, they, and not the ANC, would appear to represent the majority.

DA parliamentary leader Mmusi Maimane offers impassioned (if slightly too long) expositions on accountability and transparency from one end of the bench. The EFF’s Julius Malema, Floyd Shivambu and Godrich Gardee throw short, sharp, powerful jabs from the middle, hitting the ANC in the solar plexus, having clearly prepared beforehand with commendable care and attention to the detail, as well as the bigger picture. The IFP’s Narend Singh and the FF+’s Connie Mulder add the wit and gravitas of their years of parliamentary experience from the far end of the opposition bench.

Obviously there has been some co-ordination on strategy but, wisely, the tactical considerations are left to the individual parties. The result is a stimulating alchemy – a surprisingly persuasive blend. Generous, open-minded, curious, multicultural, sharp, angry, raucous, bright, cacophonous, humorous and about as easy to govern as a enormous herd of elephants – this is South Africa.

In contrast, the ANC (at least in the ad hoc committee) resembled a bunch of spoilt, mean-spirited, dull-minded adolescents. “We won the election, so bugger off!” That was the predominant, underlying tone of the ANC’s contribution to a “debate” that went round and round in circles.

It revealed the real and emerging fault line in contemporary politics: the ANC’s growing contempt for the Constitution and its increasingly muscular complaint about counter-majoritarianism.

Yes, the former Nat François Beukman was seated in the middle of the ANC group that huddled for comfort at one end of the opposite benches. But, as the realisation dawned that he was finding himself on the wrong side of history, he looked as if he had eaten a lemon. To say he appeared uncomfortable with the process unfolding before his eyes would be a considerable understatement.

Meanwhile, ANC MP Cedric Frolick, who has also been around the political block and settled opportunistically with the ANC a few years ago, rewards his new masters with unfettered filibustering cover from the position of the chairperson of the ad hoc committee. I suppose we have no reason to expect anything more principled from such a person.

For veteran parliamentary watchers, there was a strong sense of dééjà vu about the proceedings. It was – and is – the arms deal all over again. Instead of Vincent Smith (whom I described in these pages, at the time, as the “shark-eyed filibuster supreme”), we now have former chief whip Mathole Motshekga leading the ANC ranks with dead-eyed devotion to what he clearly perceives to be his and his president’s interests.

Smith was brought in to replace the dismissed Andrew Feinstein at the helm of the ANC group in the standing committee on public accounts (Scopa). Feinstein was apparently too insistent on investigating the arms deal. At the time, Smith told me privately that he had “a job to do for the executive” and he intended to do it.

And do it he did. Along with staunch, loyal comrades such as Bruce Kannemeyer and Neo Masithela, he made sure Scopa’s wings were clipped. The aim was to limit the scope of any investigation to be carried out by Parliament and to ensure that the independent-minded Special Investigating Unit, led by Willem Heath, would be excluded from the joint investigation.

That probe subsequently whitewashed the arms deal by pointing out procurement system failings and blaming a few unfortunate middle-ranking officials, while the big fish swam happily away.

Sound familiar? Just as Scopa was prevented from calling then-president Thabo Mbeki and other key members of the government’s decision-making hierarchy, so this time the ANC refused to entertain the idea that Zuma should be called to answer questions about his role in the Nkandla scandal.

Now, for Kannemeyer and Masithela, read Mmamoloko Kubayi and Doris Dlakude, about whom one might add this: I have no problem at all with them “doing their nails” in the committee – multitasking is to be admired, not admonished – it is their contempt for the Constitution that is disquieting.

And, instead of Heath, this time it is public protector Thuli Madonsela’s role that is being squeezed. The ANC is refusing to accept that her findings and recommendations are binding on the government and that Parliament has no authority to tamper with them. The ANC is also in denial about the fact that the public protector’s reports outweigh any reports produced by the executive.

This is the fault line. At one point Motshekga asked rhetorically: “How can the public protector be treated as more important than we who have been elected to Parliament by the people?” or words to that effect.

He must be a singularly poor lawyer or a particularly cynical politician – possibly both – not to know the answer to this. In terms of constitutional law, it is very simple: the Constitution is supreme, and so a constitutional body such as the public protector has greater authority.

During the transition to democracy in the early 1990s, South Africa turned its back on its system of parliamentary sovereignty and chose to be a constitutional democracy. The ANC was fully behind this. It did not want a repeat of the executive abuse of power that had characterised the apartheid era. Having made its bed, now it is having to lie in it and, apparently, it is no longer finding it so comfortable.

Although the legal answer to Motshekga’s question is clear, decisive and comprehensive, it does not provide a satisfactory political answer. What the ANC is really pointing to here is the counter-majoritarian impact of the Constitution and its institutional manifestations, whether it is the courts overturning government law or policy, or the public protector ordering “remedial action” to be taken by the executive that is not to the president’s liking.

This is why the litigation that will inevitably flow from the choice that the ANC has made in the ad hoc committee should focus not just on whether the public protector’s “remedial action” is binding or whether the committee was “irrational” in declining to get legal opinion on this point and to call Zuma to give evidence before it, but also on the bigger question of Parliament’s role and authority in such matters and in a constitutional democracy more generally.

It is also why the opposition’s role, its ability to communicate with the broader public and the fact that it is in a much stronger position to do so than ever before are critical for the future struggle over the Constitution.

Whereas the ANC’s majority in Parliament will ensure that it prevails on Nkandla, the opposition’s job is to ensure that there is a political cost for the ANC to do so. The more the ANC is forced to rely on the power of its numbers rather than its arguments, the weaker it will look.

But the opposition parties have a great deal further to go if they are to turn improved parliamentary performance into electoral progress. Appearances matter a lot in politics. And, although they may look the part in Parliament now, they need to convert this into a strong political message outside the hallowed walls of the parliamentary chambers.

And “out there”, of course, the opposition parties are competitors and not collaborators.

The last word should go, however ironically, to Mulder. Shortly before the opposition walked out of the ad hoc committee, calling it biased, he gave one of the great parliamentary speeches of the modern era. Addressing the ANC, he ended with words to this effect: “You may think that when you try to defend the interests of your president you are doing the right thing. But you are wrong. And the Constitution will prevail.”

Richard Calland is the author of The Zuma Years (Zebra)