A PROPOSED amendment to the Executive Members’ Ethics Act of 1998, which would have strengthened Parliament’s role in holding President Jacob Zuma to account for the spending on his Nkandla homestead, seems to have been forgotten after three years in the legislative process.
In her report on the scandal last week, Public Protector Thuli Madonsela’s strongest finding of direct wrongdoing by Mr Zuma was that he had violated the Executive Ethics Code for his "failure to act in protection of state resources" in the spending on his private home. However, the act, which should have been amended to provide a procedure for Parliament to follow in the event of a breach by the president, was never changed.
The upshot is that "it will be more difficult" to hold Mr Zuma to account on the ethics violation, says Lawson Naidoo, executive director of the Council for the Advancement of the South African Constitution (Casac) — a lobby group that promotes constitutional values and practices — as the act does not prescribe what Parliament should do.
The story around the amendment to the act dates back to a finding by Ms Madonsela in April 2010, in which Mr Zuma is found to have breached the code through a failure to disclose his business interests. At the time, it became clear the act was lacking in that it did not provide for a procedure in the case of a breach by the president himself.
In the case of a breach by other members of the executive, the president is compelled to submit the report of the public protector to Parliament together with his own report on any action to be taken.
University of Cape Town law professor Pierre de Vos on Monday described the act as a "legal absurdity", saying: "It assumes the president would act against members of the executive and … would never be in a position of breach. (It) contains a legal absurdity as it requires the president to decide what action to take against himself."
At the time Ms Madonsela recommended that the act be amended "to address all uncertainties or anomalies".
In May 2011, the Department of Justice and Constitutional Development published a proposed amendment for public comment: in the event of a breach by the president, the public protector would present her report to the speaker of Parliament, who would refer it to a committee for further investigation. But the proposed amendment was never tabled in Parliament for processing.
The chairman of the portfolio committee on justice and constitutional development, Luwellyn Landers, said on Monday: "We have been told that the department is still considering inputs from various ministers."
The department did not respond to queries about the status of the amendment bill by the time of going to press.
The discussion on the possible remedies for holding a president to account comes as various political parties and interest groups try to unpack the legal and political implications of the Nkandla report.
While Ms Madonsela’s most direct finding of wrongdoing by Mr Zuma relates to the breach of the Executive Ethics Code, she makes a less direct reference to a violation of the constitution when she finds that his "failure to protect state resources … amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the constitution". Mr Naidoo says this is really "the core issue".
"The president has violated the constitution and the public protector indicates the areas that he has done so."
Casac argues that this places a responsibility on Parliament to act, rather than passively await the president’s response within 14 days. In a statement following the release of the report last week, Parliament indicated this would be its course of action.
In a statement on Monday, Casac said that as the president may be removed from office for violating the constitution, it would be "constitutionally intolerable" for Parliament not to convene to consider this.
Spokesman for Parliament Luzuko Jacobs said he hoped to provide a response to Casac’s statement during the course of Tuesday.
The search for constitutional and legal remedies also takes place in a context in which there is a keen awareness that several remedies available are not expected to fly in an ANC-dominated National Assembly. Both impeachment and a vote of no confidence, as suggested by the Democratic Alliance, while symbolically important, are unlikely to succeed.
In its response to the report, the ANC indicated last Thursday that it did not regard the public protector’s report as enjoying a status any higher than its own report by a team of ministers.
ANC secretary-general Gwede Mantashe implied in several instances that "an independent body" would have to deliberate over which report had the higher status.
This has raised fears that Mr Zuma, backed by the ANC, will argue that he is not bound by the findings of the public protector, which do not have the status of a court decision.
In particular, when asked whether the ANC would advise Mr Zuma to pay back a portion of the expenses, Mr Mantashe replied: "Well that is what is in the report."
But a minute later he added that the interministerial report had not made such a finding, creating a situation of ambiguity.
Whether a court could be asked to confirm the findings of the public protector and accord them the status of a court order, is not clear, says Mr Naidoo.
"That would be new legal territory," he says.
- BDLive
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