YESTERDAY South Africa’s Constitutional Court ordered President Jacob Zuma to pay back a reasonable amount of the money spent installing non-security upgrades at his Nkandla private residence.
Editor’s Memo Dumisani Muleya
The court said Treasury must determine the sum which Zuma must pay back within 60 days, and then let him repay 45 days thereafter.
The case followed legal proceedings brought by the Economic Freedom Fighters and Democratic Alliance against National Assembly speaker Baleka Mbete, Zuma and Minister of Police Nkosinathi Nhleko, seeking a declaratory judgment that the president and speaker acted in breach of their constitutional duties.
Public Protector Thuli Madonsela was joined as a respondent due to her interest in the matter. Corruption Watch appeared as amicus curiae (friend of the court).
In a unanimous judgment written by Chief Justice Mogoeng Mogoeng, appointed by Zuma in 2009 and controversially elevated in 2011, the court held Madonsela’s move to take appropriate remedial action has legal force and is binding.
Therefore, neither Zuma nor parliament is entitled to respond to it as if it is of no force or effect, unless it has been set aside through a proper judicial process. The court thus held parliament’s resolution, based on the minister’s findings exonerating Zuma from liability, was inconsistent with the constitution and unlawful.
It also found that, by failing to comply with Madonsela’s order, Zuma failed to “uphold, defend and respect” the constitution because a duty to repay the money was specifically imposed on him through her constitutional powers.
Thus Zuma and parliament’s conduct was inconsistent with their constitutional obligations.
A storm was triggered over the Nkandla saga after government decided to upgrade security at Zuma’s homestead. In the process extra features, including a cattle kraal, were built at taxpayers’ expense. Following protests over abuse of public funds, Madonsela investigated the project.
In her report in March 2014, Madonsela — whose local equivalent is Comptroller and Auditor-General Mildred Chiri who has been exposing corruption on a petty, grand and systematic scale in Zimbabwean government ministries, departments and state enterprises — concluded the extra features were non-security structures and state funds should not have been used in their construction.
Consequently, she ordered Zuma, with the assistance of the South African Police Service and Treasury, to determine the costs of those features and repay the money.
The court also said Zuma must reprimand ministers involved in the Nkandla scandal. Zuma, Nhleko and Mbete were ordered to pay the applicants’ costs, including those of lawyers.
The court judgment is instructive. It is a lesson to ruling parties everywhere, not just in South Africa alone. The lesson is clear and simple: Abuse of office and power is unacceptable. It teaches ruling parties everywhere that they should not abuse their parliamentary majorities, reduce MPs to party stooges or zombies and ignore brazen corruption.
Of course, it also has very serious internal implications for South African democracy, society and the ANC, particularly Zuma himself.
By saying Zuma must pay back the money, as EFF leader Julius Malema and his rowdy gang of MPs vociferously demanded, the court displayed constitutional democracy at work, while compounding the president’s woes and fuelling ANC succession battles.
In life everyone wants to be a leader, one way or another. However, very few are prepared to be accountable. But you can’t have one without the other; they are two sides of the same coin.
Leaders must be accountable. This means they must accept responsibility for the outcomes of their actions and what is expected of them — both good and bad. You don’t blame others, except yourself, when things go wrong. And you don’t blame outsiders or exogenous factors. There are always endogenous things you could have done — or still can do — to change the outcome.
President Robert Mugabe and his ministers, mostly allergic to democratic accountability and who often ride roughshod over the courts, must learn from this.