Nkandla report to be dealt with privately

THE legal opinion that persuaded National Assembly Speaker Max Sisulu to allow the Nkandla report to be dealt with behind closed doors in the intelligence committee was penned by a legal adviser who did not have sight of the report.

The task team’s report, commissioned by Public Works Minister Thulas Nxesi, by the minister’s own admission uncovered some disreputable dealings in the R206m security upgrade to President Jacob Zuma’s private residence. Mr Nxesi said the report would be tabled in Parliament but asked that it be dealt with behind closed doors because of the security implications for the president.

Mr Nxesi has announced that the investigation had found supply chain irregularities and overcharging in the work done on Mr Zuma’s home. Now Mr Nxesi has insisted that the report be classified, prompting demands from opposition parties for him to make clear the legal authority under which the report was made secret.

Ironically, it appears that if the harshly criticised Protection of State Information Bill was already law, the document could not be legally classified because it would amount to covering up criminal activity.

Senior parliamentary legal adviser Ntuthuzelo Vanara noted in his legal opinion: "I am in an unenviable position in that I am required to advise on a report that I have not had sight of."

Mr Vanara was asked if it would be legal for the joint standing committee on intelligence to deal with the report. He said the committee was a parliamentary committee created by a law, rather than by parliamentary rules. The committee is governed by the Intelligence Oversight Act and the question is whether or not dealing with the report would be within this legal mandate. The committee meets behind closed doors and its members need to take an oath of confidentiality. This because it deals with the budget and spending of the intelligence community and associated sensitive information.

Mr Vanara notes in his opinion that the Nkandla report deals with security at the president’s home and as such was likely to contain copies of the building plans. Making these public could indeed have an effect on the security of the president’s home and, as such, could be within the mandate of the committee. However, he also reminded the speaker that the National Assembly and its committees were required by the constitution to conduct their business in an open and transparent manner, and could only revert to closed proceedings if it was reasonable and justifiable in an open and democratic society.

In the end, he decided that because of presidential security issues, the committee could deal with the report, and could "expunge" key issues from it. After that, the remaining parts of the report not covered by the Intelligence Oversight Act could be referred to the appropriate parliamentary committees to be dealt with openly.

Mr Sisulu accepted the recommendations in what Deputy Public Works Minister Jeremy Cronin described as a "wise and correct" decision.

Democratic Alliance (DA) parliamentary leader Lindiwe Mazibuko, after having sight of the report, said: "However, after a thorough analysis, it remains unclear how the minister of public works, Thulas Nxesi, could have ‘classified’ this report in the first instance. It is the DA’s position that he is not empowered to do so at all.

"The National Key Point Act does not, at any point, enable the minister to classify a document. Furthermore, the minimum information security standards policy has no basis in law, and remains a Cabinet policy. The minister cannot claim that he has made use of this document to legally classify the report, nor can the report be referred to the joint standing committee on intelligence on the basis of this policy.

"This brings into question whether Minister Nxesi deliberately set out to hide the information contained in the report at the very outset, and whether he was wrong in requesting that the report be handled behind closed doors."

Both Mr Nxesi and Mr Cronin said the work done on Mr Zuma’s home was "riddled" with irregularities and anomalies, including overcharging. Once the Protection of State Information Bill becomes law, it will specifically outlaw the classification of documents to cover up irregularities and corruption. However, for now, the Nkandla report will, at least in the first instance, be dealt with in secrecy by the committee.

- BDLive