Nkandla spat a symptom of chasm between two systems

by | Aug 7, 2015 | General | 0 comments

A LOT of dust and dirt has been and will be kicked up around the spat (over security enhancements to President Jacob Zuma’s Nkandla homestead) between Public Protector Thuli Madonsela and the African National Congress (ANC)-led alliance, which dominates both the National Assembly and the executive branch of government.

Rather than becoming bogged down in the minutiae of who said what to whom on the 10 topics that were highlighted when Madonsela faced the media in Pretoria on Monday, it is perhaps preferable to take an overall look at the war being waged over the future trajectory of SA’s democratic project. The spat is, after all, symptomatic of a larger struggle that is going to determine SA’s fate.

The war is between the constitutionalists among us and those who subscribe to the values of the national democratic revolution. There are still some constitutionalists in the ANC, while the Economic Freedom Fighters and much of the left outside of the ANC-led alliance of the South African Communist Party (SACP) and the Congress of South African Trade Unions (Cosatu) still hold on to the national democratic revolution as their lodestar.

Indeed, the SACP is a descendant of the author of the notion of a national democratic revolution as it was Vladimir Lenin who coined the phrase at the beginning of the 20th century. It posits the notion of a one-party state in which hegemonic control of the levers of power resides in the party, which in effect becomes the state. The USSR is the best and biggest example — and everyone knows what became of it. Nevertheless, the SACP and Cosatu cling to the creation of a one-party state as the fulfilment of the national democratic revolution.

So, if the spat between the ANC and Madonsela is but a skirmish in the war between disciples of the national democratic revolution and those who show fealty to the values of the Constitution, what is at stake for the public?

A future in which the values and principles of the constitution are bedded down in society will involve the implementation of the Bill of Rights, including the guaranteed socioeconomic rights that will serve to lift the poor out of poverty, inequality and unemployment. The state is constitutionally obliged to respect, protect, promote and fulfil the rights in the Bill of Rights.

A free media will report openly on the progress of this implementation and so-called “service delivery protests” will fade into history. The education system will deliver quality basic education to all. People will not go to public hospitals to die or to queue for out-of-stock medication; the sick will go to be healed. Public transport will be efficient and safe, with properly qualified engineers designing and maintaining the fleet of locomotives used to transport people securely and rapidly. The criminal justice administration will work effectively and will deter those contemplating a life of crime.

The courts will determine disputes without fear, favour or prejudice. Their decisions, once finalised on appeal, will be accepted without question and their effectiveness will be promoted by the executive and legislative branches of government.

These developments will attract foreign direct investment and will stimulate South African investors to accept that “local is lekker” rather than looking offshore to hedge their exposure to our markets.

For ordinary folk, freedom of association and expression will see the development of a modern state in which nonracialism and nonsexism enjoy pride of place.

The public administration will take seriously the values and principles set out in section 195 of the constitution: sound human resource practices will ensure that all public servants are up to the task at hand, ubuntu and Batho Pele will flourish and the inequalities of the past will be reduced more rapidly than can be imagined. Driven by public servants with professional ethics who comport themselves accountably, transparently and responsively, the levels of service to the public will improve exponentially.

If, however, the national democratic revolution is fully implemented in accordance with the wishes of the SACP, Cosatu and some in the ANC, the tyranny of the majority will hold sway and a future more bleak than that anticipated under constitutionalism is likely.

The “big man” syndrome of Africa will stalk the corridors of power. The protection of the giver of patronage by those who owe their positions to the cronyism and nepotism that is bred by “big men” will erode the rule of law and the common good.

This phenomenon is already apparent in the gyrations of the police minister and others in their responses to Madonsela’s “Secure in Comfort” report on the Nkandla security enhancements. Even Zuma’s own Special Investigating Unit is out of step with those sycophants who have conjured up a “the president owes nothing” response.

The unit has, pursuant to a mandate given to it by Zuma, sued his architect for payment of R130m of the R246m allegedly spent on the upgrades. This is more than the R52m the Democratic Alliance (DA) has suggested as an appropriate amount for Zuma to pay back. It is worthwhile to pause to observe the total annual budget of the public protector is R246m and the pleas for a further R200m have gone unheeded while the Nkandla scandal goes on and on.

During question time at the end of her media conference, Madonsela remarked on the “tyranny of the majority” and stressed that, under constitutionalism, this is not allowed because the constitution tempers the will of the majority. There are unfortunately still politicians in SA who think the majority can do as it pleases. Hence there is the closing of ranks around the maladministration so clearly in evidence at Nkandla.

The majority is, however, constrained by the Constitution: conduct inconsistent with it is invalid. Short of repealing section two of the Constitution, there is nothing the majority can do about this. The section reads: “This Constitution is the supreme law of the republic, law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

One of these obligations is to ensure the effectiveness of the public protector, which has the constitutional power to “take remedial action” when it has investigated allegations of maladministration “that is alleged or suspected to be improper or to result in an impropriety or prejudice” under sections 181 and 182 of the constitution.

What this means for the Zuma administration will hopefully be revealed when the Constitutional Court hears argument on whether remedial action imposed by the public protector is legally binding, in the matter between the DA and the South African Broadcasting Corporation next month. In the meantime, constitutionalists can thank their lucky stars that Madonsela has the courage to stand up to the erosion of her office with dignity, objectivity and sound legal arguments that properly defend the course of conduct she has bravely chosen.

• Hoffman is a director of Accountability Now

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