Siphile Buthelezi, apparently writing for the Progressive Professionals Forum, has suggested that the massive expenditure of public funds at the Nkandla private homestead of President Jacob Zuma is not a matter for public concern or independent investigation (see here).
He argues that the executive is in charge of national security and that expenditure of the kind in question is not a matter into which the Public Protector should be allowed to pry. In support of the arguments he puts up he relies on section 198 of the Constitution, on American law and practice and on the pre-eminence of the executive in our constitutional order when it comes to matters of national security such as the security of the president.
He is wrong, worryingly so - given the progressive agenda of the forum for which he speaks, in the views he has expressed. It is important to understand why he is wrong and to correct his misperceptions in order that progress with our constitutional dispensation can in fact be achieved, rather than just used as a meaninglessly inaccurate name for the forum he represents.
The reliance upon the American experience is misplaced. Nkandla is not the White House. The former is the privately owned homestead of one of our presidents, the latter the official residence of each and every American president over more than the last two centuries. America is in any event not a particularly shining example of the rule of law. Buthelezi's reliance on it as a paragon of constitutional virtue in matters of national security is misplaced.
Just ask Edward Snowden, any unfortunate individual indefinitely detained in the US facility at Guantanamo Bay (the one President Obama was going to close down, but hasn't) and especially those who find themselves there as a result of illegal rendition. A country that is prepared to use drones to attack its enemies without due regard to what it calls "collateral damage" in civilian casualties is not one to emulate, not even on matters of national security, not if constitutional democracy of the progressive kind is what motivates one to get up in the morning.
More disturbing is Buthelezi's reliance on our own constitutional dispensation, as he sees it, to bolster his defence of the expenditure of over R200 million of public funds on Nkandla. Even the only section of the Constitution he expressly mentions does not say what he suggests it says. The principles governing national security affirm the resolve of South Africans to live as equals. National security has to be pursued in compliance with the law, including international law and is subject to the authority of parliament and the national executive. It is not, contrary to the view of Buthelezi, the exclusive domain of the executive branch of government. Nor will saying: "Big Brother knows best", as he implies, make it so.
From this point, the argument put up on behalf of the Progressive Professionals Forum spirals down in free fall. Ours is a constitutional democracy under the rule of law. The Constitution expressly requires that conduct that is inconsistent with it be regarded as invalid. The expenditure of public money does not happen behind closed doors in the cosy fashion that has Nkandla expenditure being reflected or rumoured to be at several times the going rate for similar work on similarly situated infrastructure.
Section 217 of the Constitution expressly sets out the basis of the system according to which contracts for goods or services entered into by government must be structured. The system has five criteria: it must be fair, equitable, transparent, competitive and cost-effective.
This system indubitably applies to the expenditure of public money at Nkandla. It is arguable that none of the five criteria has been respected in the project to upgrade Nkandla. It is absolutely unarguable to suggest, as Buthelezi does, that the Public Protector has no jurisdiction to look into the constitutionality and legality of the expenditure of public money at Nkandla.
This is because all Chapter Nine Institutions are state institutions supporting constitutional democracy and doing so in various ways is their mandate. The brand of constitutional democracy embraced by the vast majority of the people of SA is multi-party democracy under the rule of law; one in which openness, accountability and responsiveness to the needs of ordinary people are foundational values. This is set out in detail in section 1 of the Constitution.
Buthelezi, in his eagerness to defend what has been perpetrated at Nkandla, appears to overlook these basic rules regarding the way our system works. The parliamentary sovereignty of the past, which allowed so much abuse by political forces, has been replaced with a supreme Constitution which rules over us all, including potentially wayward politicians and public servants.
The classical checks and balances which the separation of powers between the legislative, executive and judicial branches establishes are enhanced in SA by the creation of our independent Chapter Nine Institutions which are subject only to the Constitution and the law. These Institutions are enjoined to act without fear, favour or prejudice in the discharge of their mandates and nobody may interfere with the functioning of these bodies created to "strengthen constitutional democracy in the Republic" - as set out in section 181 of the Constitution.
The mandate of the Public Protector has three elements: to investigate maladministration in the conduct of state affairs or the public administration, to report on that conduct and to take appropriate remedial action.
The rule of law requires legality and rationality in decision making which appertains to the expenditure of public money. Very few people in SA live in houses, homesteads or even on farms worth more than R200 million. None of those who do so has much regard for the achievement of equality, a goal of our new order that is expressly mentioned in Section 198 of the Constitution. It is unthinkable that a mere politician, albeit ‘first among equals', can reasonably justify the Nkandla scale of expenditure on his home when so many are homeless in the land.
The very notion of spending over R200 million of public money on a collection of rondawels in a rural area in order to upgrade them smacks of irrationality and certainly raises questions around the cost effectiveness, competitiveness, fairness and equitability of the expenditure. These are all questions that are fair game for the Public Protector.
How else is accountability and responsiveness to be ensured by an independent body, not a collection of cabinet comrades who are beholden for their jobs in cabinet to the very individual who benefits from the, relatively speaking, massive expenditure at Nkandla under scrutiny by concerned members of the public, the media and the Public Protector?
The ideas upon which Buthelezi bases his stout defence of the expenditure of public funds at Nkandla are not progressive in any shape or form. Nor are they rationally defensible. If the Progressive Professionals Forum is not prepared to repudiate them and instead embrace the propriety of the principles that actually do apply, its credibility as a progressive organisation will lie in tatters.
Paul Hoffman SC is a director of the Institute for Accountability.
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