FOUR months after the initial promise to respond to Public Protector Thuli Madonsela’s report, "Secure in Comfort", President Jacob Zuma finally got around to issuing a full response last Thursday.
The delayed response was unusual. Zuma had 14 days to respond, during which he reacted only with the promise to reply again later. And he took an inordinate length of time to do so.
He had reasoned earlier that his full response was contingent on the completion of criminal investigations by the Special Investigating Unit (SIU). This suggested the SIU’s findings were material to Zuma’s response.
So, was the wait worthwhile? Could Zuma have responded to Madonsela’s report without the SIU’s findings? And what does the response really mean?
Contrary to Zuma’s assertion, the SIU’s findings added no material value to his response. In his 20-page reply, he squeezed the SIU into a slim, two-and-a-half pages, of which one-and-a-half restated the SIU’s terms of reference.
Nor did the rest of the SIU section cite any new findings by the unit. In fact, the findings are similar to those of Madonsela’s, such as: "There was no compliance by departmental officials with supply chain management process … there was overcharging by at least some of the consultants … some of the contractors, suppliers or service providers who were appointed had not been vetted by the State Security Agency."
So Zuma’s response to Madonsela never depended on the SIU findings. Because it is a Chapter 9 institution, the findings of the public protector carry far more weight than those of the SIU. These two organs cannot be compared. Zuma knows this, but was employing the same strategy he has used since becoming president: stall and obfuscate.
He did exactly this just before the elections, appointing the interministerial committee to investigate the splurge on Nkandla. Then his ministers sought to kill Madonsela’s investigation, arguing that the Cabinet investigation made hers unnecessary.
That argument was spurious. The interministerial investigation was futile as Madonsela had already started hers and was authorised to do so by the constitution.
Having failed to kill the investigation, the ministers, after Madonsela came with her findings, equated their findings with hers. But that did not work. People are not idiots. Why would anyone believe the findings of a Cabinet committee into its own impropriety?
It soon became clear that very few people were buying into that ruse. The murmurs began: "Hey, No1 is costing us, he’s a liability." Comrades on the campaign trail sought to disown Zuma. Never in the electoral history of the African National Congress (ANC) has the organisation distanced itself from its president. Comrades became irritated at the mere mention of the president.
"Why do you have to bring up Zuma’s name now? Why, maar?" they’d protest in conversations. "Zuma is not the ANC," they’d insist, and quickly counsel: "Just think about the history of the ANC … and Mandela."
But they couldn’t minimise the effects of Nkandla. The ruling party took a bad knock at the polls.
Now Zuma is doing the same thing he attempted to do before the May 7 elections. What is supposedly a full response to Madonsela’s report is actually a nonresponse. He has not addressed the public protector’s findings directly.
In fairness to Zuma, his report does not even promise to do this. Rather, his opening sentences say he has examined Madonsela’s report alongside two other reports (by the joint standing committee on intelligence and the SIU).
In a way, Zuma lowers expectations from the very beginning of his (non)response. And, true to that undertaking, the public protector’s report finds mention only after the halfway mark of Zuma’s document, and gets only four pages.
Here, Zuma merely lists some of Madonsela’s findings, while carefully avoiding others. And there is no attempt to engage with any of them; rather, they are just listed in bullet form. You would think Zuma thought the requirement was to simply cut and paste Madonsela’s findings, not to respond to them directly.
Still, even though the document follows a familiar strategy of clouding matters, one does become somewhat puzzled as the report nears the end of what was billed as a "full response" to Madonsela’s report.
The second-last page reaffirms the old Zuma adage, "Never take responsibility". Instead of answering Madonsela on whether he would pay for personal improvements on Nkandla, he defers the decision to Police Minister Nathi Nhleko.
And, in doing so, Zuma further prescribes that Nhleko must have "regard to the legislation, past practices, culture and findings in the respective reports".
It does not take a genius to figure out Zuma’s intentions here. There is no way Nhleko will tell his boss to pay R20m back to the state. That would probably cost him his job. Poor Nhleko! Now he knows why Zuma picked him for that portfolio. His mandate is to cover up for the president.
Zuma clearly does not want to face up to his own ignominy. He has the option of challenging Madonsela’s findings in court, but has evidently chosen not to do so. Instead, he has picked someone to clean up for him. Now Nhleko, like Bruce Koloane of Guptagate, must be the infamous one.
But this is a tough one for Zuma as Nhleko cannot simply excuse him from reimbursing the state. If he chooses to do so, Nhleko must explain why he thinks his ministerial authority empowers him to overturn the findings of the public protector.
And, he will most likely have to explain that in court as such a decision will definitely be challenged there. And assuming this matter reaches court, there is a very slim chance that Nhleko will be vindicated.
Madonsela’s investigation was meticulous and ministers were quite obstructionist, with important documents seemingly intentionally misplaced. The evidence is persuasive and ministerial behaviour has been quite unbecoming. It is a case the state is unlikely to win should it ever get to that point.
It boggles the mind, therefore, that the president of the country thinks this is a plausible course of action. One can see an unpleasant ending for the ANC here, even before such a saga beings.
I doubt Luthuli House approves of Zuma’s response to Madonsela. ANC headquarters is intent on restoring the party’s credibility. Recent conduct has gained the ANC notoriety as unethical and reckless. And so headquarters has embarked on a facelift. Not long ago, indefatigable new spokesman Zizi Kodwa wrote glowingly about the public protector, claiming the institution as one of the ANC’s proudest achievements.
Kodwa also then issued what seemed to be a sincere appeal to society: "As we move SA forward, let the constitution which is the supreme law of the country reign supreme, let the office of the public protector continue to discharge its mandate without fear of reprisal from anyone."
Clearly, Zuma doesn’t consider himself accountable to the public protector. He prefers the judgment of his own subordinate minister instead. And, frankly, Zuma is saying he will not pay. But he doesn’t want to tell that to the courts. Rather, he wants Parliament to say it on his behalf.
Now we will have to wait to see if the legislators will uphold the law, following Luthuli House’s march to regain the high moral ground, or whether they will issue an official endorsement of the president’s defiance of the law.
We are at a crossroads, yet again.
•Ndletyana is the head of the faculty of political economy at the Mapungubwe Institute for Strategic Reflection.
© BDlive 2014