You Can’t Go Home Again: A Surprising Concession from South Africa’s President

“Nkandlagate” has been the gift that keeps on giving for South Africa’s satirists and social media quipsters. It started with the scandal itself: Jacob Zuma, the country’s president, spent at least 256 million rand (what was then more than US$30 million) in public funds to install a swimming pool, amphitheater, chicken run, and cattle corral at his private home, called Nkandla. When the expenditures were revealed, he claimed they were “security upgrades.” After all, the most natural way to ensure you have enough water on hand to put out a fire is to install a swimming pool, right? Political cartoonists and puppet-starring TV shows alike have weighed in on Zuma’s recalcitrance in the face of Public Protector Thuli Madonsela’s report demanding that Zuma pay back some of the misused funds.

The jokes are understandable: after years of living with the consequences of an infamous arms deal–the “original sin” that “infected [the country’s] politics” with corruption when the lack of consequences for its high-level participants fostered a sense of impunity–many South Africans have turned to dark comedy as a form of release.

The need for that type of gallows humor may have dipped slightly earlier this month.  President Zuma, after refusing for years to admit he’d done anything wrong and publicly mocking the outcry about Nkandla, finally conceded to the country’s highest court that he should have obeyed the findings of Madonsela’s report. Rather than insisting that President Zuma did nothing illegal, his defense team is now arguing that the president made a mere “mistake of law.”  What explains this stunning reversal? And what will the implications be?

Before analyzing the causes and consequences of Zuma’s concession, a little bit of background is necessary. According to South Africa’s Constitution, the Public Protector has the power to investigate allegedly improper “conduct in state affairs, or in the public administration in any sphere of government,” report on it, and “take appropriate remedial action.” Madonsela, despite having been appointed by Zuma, has proved to be a tenacious an anticorruption watchdog, shining a light on all sorts of government graft and leading to the termination of at least three ministers. Yet despite these successes, the vagueness of the Constitution’s phrase “take appropriate remedial action”–along with the fact that the Public Protector Act does not explicitly state that the Public Protector’s recommendations are binding–had enabled President Zuma and the National Assembly to claim that Madonsela is a watchdog with no power to bite, on the theory they are not obligated to act on the recommendations contained in the Public Protector’s reports–including Madonsela’s recommended responses to Nkandlagate.

Frustrated by Zuma’s refusal to obey Madonsela’s report, two opposition parties brought suit in the Constitutional Court (the ConCourt), requested that Zuma be required to implement Mandonsela’s recommendations, and that the ConCourt declare Zuma’s decision to ignore Madonsela’s findings and instead order a whitewashed report by his police minister was irrational and unconstitutional, as was the legislature’s decision to rely on the whitewashed report instead of on Madonsela’s.

The president’s surprising concession reshapes the entire legal battle. Though there are technically still some issues the ConCourt could decide (particularly related to the National Assembly’s failure to adopt Madonsela’s findings) and must decide (just how much money the president must pay back), President Zuma has essentially given up the rhetorical heart of his case. Yes, he now says, he should have taken the remedial action prescribed by the Public Protector. Yes, he’ll pay back some of the money. And yes, admitting he made a mistake of law is effectively admitting he violated the law (though his lawyer did not go quite this far).

The reason for this change of heart? It’s likely a tactical move: By conceding so much, President Zuma is probably hoping to avoid seeming so disrespectful of the law that the ConCourt slaps him down with a declaration that he violated his oath of office to uphold the Constitution–a declaration that the opposition could use to push for his impeachment.

At this point, there are two reasonably likely outcomes of the case: (1) the ConCourt could still declare that President Zuma violated his oath of office and/or issue a strong judgment affirming the Public Protector’s powers; or (2) the ConCourt could rule narrowly on the issues necessary to decide this particular case, without stating that Public Protector findings are always binding. (Technically there’s a third alternative: the ConCourt could reject Zuma’s concessions and hold that the Public Protector’s findings are not binding, but this is unlikely.)

The first scenario, which falls in line with conventional wisdom about the Constitution, is obviously preferable for those who want to close a loophole in South Africa’s anticorruption legal framework. Even if the other branches of government have at times shown themselves willing to ignore the ConCourt, taking away any fig leaf that their refusal to follow through on the Public Protector’s findings is lawful increases the political costs. It’s also the outcome that I think is most likely. Yet while this would be an important positive development for the Public Protector, its immediate political significance for President Zuma himself shouldn’t be overstated. Despite some interesting recent developments, I continue to think that predictions about Zuma’s imminent political demise are greatly exaggerated. Even if some ANC politicians could be lured into withdrawing their support from Zuma in a way all previous impeachment attempts have failed to do, the ANC holds such an overwhelming majority of legislative seats that mustering the necessary two-thirds majority seems unlikely. There are also legal reasons to be skeptical that any impeachment effort would succeed.

It’s also worth recognizing that even if the Office of the Public Protector wins a sweeping victory in the pending ConCourt case, this may not necessarily translate into a strong Public Protector going forward. Madonsela’s non-renewable term comes to an end this October, and legal decisions about the office’s powers won’t be enough to stop the ANC-controlled National Assembly and Jacob Zuma from selecting a replacement they believe is much less likely to cause them trouble.

All those caveats notwithstanding, President Zuma’s willingness to concede such important elements of the Nkandla case does suggest he may be feeling insecure, legally or politically. Moreover, with a civil society campaign focusing attention on finding a good successor, high support for Madonsela, increased public awareness of the Public Protector office, and courts that have pushed back against executive attempts to control corruption-busting institutions, there’s a glimmer of hope (a faint, flickering, far-off glimmer, but a glimmer nevertheless) that the next Public Protector could be a reasonable choice, even if not the galvanizing figure that Madonsela is. At the very least, in the short term the Public Protector has won on several levels: she’s effectively forced Zuma to make an embarrassing concession and to pay back some of the public’s money. In a country where so many high-ranking officials feel they can engage in corrupt acts without fear of penalty, that success makes the Nkandla case significant even before the ConCourt returns in a few months with a judgment. After years of having to laugh to avoid crying, South Africans deserve to take an anticorruption victory of any size as a moment to cheer.

5 thoughts on “You Can’t Go Home Again: A Surprising Concession from South Africa’s President

  1. How exciting! Even if people observing the situation had been sure or almost sure that something improper had happened, the official admission does seem to be a significant step. Where political affiliations are longstanding, such an announcement might change few individuals’ support of one side or another. At the same time, it does keep a record that, at least in some way, the pressure and attention to improper actions can, if it is relentless, eventually amount to something. That’s something both sides in South Africa and others outside would do well to remember in the future. I wonder how much of this victory (however small) is linked to the tenacity of Madonsela specifically and, if so, how that kind of tenacity might be replicated in the future. Does it depend on personality? Or on particularly egregious actions? Or is tenacity something we can’t plan on at all?

    • I think Madonsela deserves a lot of credit. As well, though, she, or at least the Nkandla investigation, has benefited (in at least this one aspect–in other ways, it was probably limited) from the polarized, contentious political situation in South Africa: the DA and EFF, the ANC’s main political opponents, were of course eager to jump on any criticism of Zuma and keep the investigation in the public eye, and willing to take this all the way to the Constitutional Court. As I said, in other ways the polarization probably hurts–but I wonder if that means we need to give Madonsela even more credit for managing a tricky political situation: the DA and EFF can be as far away from Zuma as possible on some political opposition spectrum, and she’s been able to benefit from their advocacy while not totally losing the aura of independence around her (though granted, it’s something Zuma has tried to attack).

      The question as to how to duplicate that kind of success is a good one, and something I’m hoping to do some thinking (and perhaps writing) about in the future. There are different ways of leading an institution an anticorruption institution like this one. Being dynamic and obviously trailblazing and determined is one way. Sometimes, though, finding someone who fits that exact profile might not be possible (and perhaps over the long term the institution won’t be able to or shouldn’t rely solely on that inspiring central figure), so figuring out ways to continue the success seems really important.

  2. Great post! I’m curious about the motives behind this admission. You mention that Zuma may be trying to avoid a ConCourt ruling that he violated his oath to uphold the Constitution, which seems perfectly plausible to me, but I wonder if there are other pressures that led to this admission.

    Could it be that the ANC leadership is so frustrated with his behavior that somehow he was pressured into making this admission in advance of the 2016 municipal elections? Could this be a sign that Zuma’s control over the ANC is waning? This would all be speculation, but I’m wondering if you think that this admission has any broader potential for positive change in South African politics generally?

  3. Thanks. My answer here is going to be largely speculative, but my from-a-distance reading of the situation is that if there was any person or entity besides Zuma himself that was responsible for the admission, it was his advocate. Press coverage of ANC involvement and reactions seems to have focused on their frustration at him making this decision now after so many ANC members had spent years defending him. I do think it could be the case, though, that with so many other issues on his plate (particularly on the economic front), some of them stirring up or reflecting internal party tension, Zuma began to feel like he needed to get this taken care of with as little fuss as was still possible. It does seem like there’s a portion of the ANC that is fed up with him. The question is, if that portion is a majority, what will it do about it? With the vociferousness of the opposition parties, I think there’s a “circle the wagons” mentality that often kicks in, or at least has in the past, but there are also people more seriously doing personal cost-benefit analyses about automatically and vocally supporting Zuma, especially since there’s evidence that they might not always receive reciprocal protection.

    As I say above, I think there’s always a danger about people jumping to predict that Zuma will lose power, and don’t think we’ll be seeing him leaving any time soon (before the next ANC conference at the end of 2017); mostly, I think ANC reps will want to at least try to put on a unified front, particularly if the opposition parties seem loud or politically threatening. Still, people may be starting to think about the fact that he won’t be around forever, and wanting to line themselves up for a post-Zuma era.

  4. Wow, Zuma’s concession seems like the sort of political move that would not get out of the script writing room because it’s almost too unlikely to believe. It will be interesting to see how the ConCourt rules and what impacts it will have. Going forward, I wonder what impact you see the civil society campaign to draw focus on Madonsela’s replacement will have. How much attention do you think the public would pay to the nomination absent a publicity campaign? Do you think it will be important for civil society groups to all rally around a particular nominee, or will more general efforts be sufficient?

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