“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.