The president of the country, Jacob Zuma conceded in court last week that he had failed with regard to the Nkandla debacle to act in accordance with his oath as president of the country to act in good faith to further the constitution. He harmed the standing of the constitution more particularly by undermining the office of the Public Protector when he failed to respond in good faith to her binding recommendations.
He went further not only by failing to abide by those recommendations and providing remedies, but also by setting up parallel processes aiming to delegitimise the findings of the Public Protector. At various times, he questioned the legal standing of these findings, not in a court of law, but as a political figure occupying the presidency of the ANC and the State. He did nothing to stop more serious acts of contempt for the Public Protector by government and ANC office bearers, including a suggestion that she acted as a CIA agent.
He failed to cooperate with the Public Protector during her enquiry and afterwards, and to this day has not satisfactorily answered, or answered at all, many of the questions put to him during her enquiry
Advocate Jeremy Gauntlett SC, acting for Zuma, obviously decided that he could only take on the case without compromising his professional integrity if his role was to fully admit that the previous actions in regard to the office of the Public Protector had been illegal. The alternative was to fight a case trying to overturn findings of the Supreme Court of Appeal (SCA) that appeared quite cogent. In the “spy tapes” case, Zuma’s lawyers resisted handing over the tapes right up until it reached the SCA, where they were forced to concede that they had no legal basis for resisting handing them over. Not only was this fruitless litigation, but obviously wasteful expenditure coming from the public purse.
Gauntlett had, instead, to concede that a range of actions and failures to act on the part of the President and explicitly or by implication actions by the Speaker, parliament and various ministers including those of public works and police, were complicit in undermining the law and constitution of the country - the law and constitution they are bound by their oaths of office to observe.
What can we conclude here?
It is admitted that public monies, meant for poverty programmes in many cases, were diverted in order to provide a lavish home for the president;
For some years, attempts were made to conceal the full extent of the expenditure, then the character of the constructions was denied and it was claimed that what had been provided in terms of alterations and new structures were entirely security-related;
Those who are close to the president or dependent on the president for the offices they hold or who hope to derive future benefit denied what was obvious to the naked eye. They painted an elaborate explanation of the alleged security features that were very different from methods used for such security needs anywhere else, performed by luxury items like the swimming pool purporting to serve as a way of extinguishing fires.
What was very obvious throughout this episode was that the “emperor had no clothes” and the courtiers around him were unwilling to say this. They were bound to President Zuma in a relationship that claimed not only their loyalty, but also that they relinquish their honour and integrity.
Instead they collaborated in and voted repeatedly to endorse the misspending. People who had often been absent for important parliamentary votes made sure they were in the National Assembly to endorse a series of reports exonerating the President from any financial obligations relating to Nkandla
These were obligations obvious to any person who saw a swimming pool and, without being a fire expert, knew very well that it was not the most efficient way of addressing potential fires. These obligations were obvious to anyone who looked at the numerous other improvements that went far beyond a legitimate need to provide security for the President in a location that did require special features to account for the lack of the infrastructure found in the cities.
That being the case, when the President appeared in parliament for the State of the Nation speech, the EFF and COPE walked out. Mosiuoa “Terror” Lekota.
Lekota rose on a point of order to interrupt President Zuma’s speech.
“Honourable Lekota‚ I appeal to you to take your seat‚” said Speaker Baleka Mbete.
Lekota insisted on going ahead to make the point that President Zuma had broken his oath of office over Nkandla‚ as evidenced by the concessions made in the Constitutional Court hearing.
“He is no longer honourable. We cannot listen to someone like this‚” Lekota said.
The Speaker ordered Lekota to leave the chamber, which he did with other COPE members, without protest.
The EFF adopted more aggressive modes of intervention. Strictly speaking, they were entitled under the rules of parliament to raise their points of order. The Speaker was obliged to hear their points of order and points of privilege and rule on whether or not these were valid. Instead, from the outset, but more decidedly as a stalemate developed, she refused to take their points of order. She treated the EFF MPs as a group and not as distinct MPs whose points had to be considered individually. Significantly, she did take points of order from DA leader Mmusi Maimane and ANC Minister Naledi Pandor, neither of which were procedural, but which argued that the President should continue with his speech.
The EFF members were ultimately asked to leave. Instead of inviting fisticuffs with the recently established military arm of parliament, as in 2015, they left chanting and dancing to the newly coined slogan “Zupta must fall!”
The actions of the Speaker illustrate that as far as she and her colleague from the National Council of Provinces, Thandi Modise, were concerned, nothing significant had happened that required any change of approach. They allowed the President to proceed as if the breach of his constitutional duties were of no significance to his addressing the house.
Personally, I am not willing to endorse continual disruption of the work of parliament, if that is what the EFF has in mind. Our ultimate objective ought to be to remedy the dysfunctionality of parliament and other institutions of state and make them work.
The question is how do we move from where we are towards restoring constitutionalism and ethical leadership? The issue that has come to the fore most definitely in this episode is a loss of trust in a leadership that has been willing to act with contempt for the constitution, the electorate and even the very ANC to whom the President and MPs are affiliated.
In acting in breach of duty to benefit the lives of citizens and acting instead in ways that prejudice their lives, the President, his ministers and MPs have ruptured the connection that they once had with their constituency. At the time of its unbanning, the ANC enjoyed a high level of moral legitimacy and obviously benefitted from leaders with considerable prestige.
The respect accorded to Nelson Mandela, Oliver Tambo, Albert Luthuli, Walter Sisulu and other giants of the ANC and other organisations is not explained by their being “iconic”. They were trusted because they listened and incorporated what their constituency said in their actions and the policies they pursued. In short, they embodied the suffering of the people whom they represented, and acted with a sense of grave responsibility to remedy the wrongs that the oppressed had experienced.
We need to look for a new leadership, but also a new relationship between the public and leaders, one where we claim a full part in our own democratic life. We need to do this with a leadership that understands the need for constant interaction between “we, the people” and them as leaders.
Raymond Suttner is a scholar and political analyst. He is a professor attached to Rhodes University and UNISA and is the author of Recovering Democracy in South Africa (Jacana and Lynne Rienner, 2015). He served lengthy periods as a political prisoner under apartheid. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner