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Thuli Madonsela
If the president and government are seen to violate the law with impunity, it unwittingly gives permission to the populace to adopt lawlessness.
The Public Protector report titled Secure in Comfort begins with a quote from US Supreme Court Justice Louis D Brandeis, which says:
“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example… If the government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself...”
The essence of the quote is that there is a higher duty on those who make and enforce the laws to be exemplary in complying with them. It further says that if government is seen to violate the law with impunity, it unwittingly gives permission to the populace to adopt lawlessness.
This quote from the 2014 report where I found that President Jacob Zuma had acted unethically in breach of the Executive Ethics Code and the Constitution by allowing and improperly benefiting from state-funded luxurious and unnecessary renovations at his Nkandla private homestead in the name of security came to mind recently, when a random tweet captured my attention.
The tweet bemoaned President Zuma’s attendance at a religious event hosted by the Gupta family – a family of Indian origin that has been in South Africa since the eve of democracy and allegedly has close ties with the Zuma family. Implied in the tweet was that Zuma shouldn’t have attended.
President Zuma’s conduct followed serious allegations of state capture, specifically alleging that he may have acted wrongfully by enabling or allowing the Gupta family, who co-own Oakbay Investments and other enterprises with his son, to corruptly influence the dismissal and replacement of Finance Minister Nhlanhla Nene in December 2015. It was also alleged that such corrupt influence extended to other appointments and removal of Cabinet members, state-owned enterprise board members and heads of strategic government administrations regulating industries where the Gupta-Zuma-owned enterprises operate.
It was said that the resulting corrupt influence is leveraged to enable Gupta-Zuma-owned companies to receive tenders or state contracts, undue payments and preferential treatment in access to trading licences and public finance meant to advance black economic empowerment.
There is no question that, by attending said event, President Zuma placed himself in the position of fraternising with persons who are accused of corruptly undermining the democracy he is sworn to protect and advance, and whose people he should put first.
A constitutional responsibility
I wondered if the president, as the teacher in chief of the democracy we’ve signed up to become, to borrow Justice Brandeis’ metaphor, is sending a good message to the nation. Clearly there is no law that forbids him or any other person from fraternising with those accused of breaking the law that they are sworn to protect. Accordingly, it can only be a matter of ethics, which is about doing the right thing the right way.
Is the president obliged to do the right thing? The answer is yes. It is his constitutional responsibility to act ethically. It dictates that President Zuma and other state functionaries ought to always act democratically and in accordance with the highest level of professional ethics.
We also can’t help but ask, in line with Justice Brandeis’ message, whether President Zuma’s is a good lesson to be emulated by others. Should we expect the same from the minister of police, the head of the National Prosecuting Authority, judges and others who are required to pursue public interest and avoid a conflict of interest?
That the conduct is not forbidden by law is immaterial. Democracy places a few among us in positions of trust not only because of having shown a propensity to uphold the law but also, and more importantly, because of their ethical character in addition to competence.
If President Zuma were the chief executive officer or president of a business enterprise, would shareholders countenance his fraternising with a person or persons alleged to be undermining the company’s policies, objectives and reputation or brand? I don’t think so. It is most likely that a relationship with such a person(s) would be placed on ice, so to speak, until the allegations were resolved.
President Zuma may also be unwittingly teaching on the treatment of whistle-blowers. His treatment of whistle-blower, former deputy minister of finance, Mcebisi Jonas, can’t be said to be congruent with the spirit of the Protected Disclosures Act, which seeks to encourage and insulate whistle-blowers from reprisals.
This, and President Zuma’s firing of ministers who had not shown unquestioning loyalty to him in the wake of the Nkandla and state capture scandals, suggests that the lesson for others is the Armenian proverb that says: “He who speaks the truth must have one foot in the stirrup.” If so, is President Zuma’s teaching consistent with the spirit of the Protected Disclosures Act and the country’s anticorruption quest? Where does that leave whistle-blowing, which is essential for ending corruption?
For the people to judge
President Zuma’s engagement with communities in response to the scandals he faces is even more confusing. Having revisited George Orwell’s Animal Farm recently, I found a lot of parallels in the messaging, particularly the blaming of everything on Snowball and humans, as well as creating random new narratives in the wake of, and that detract from, an important national question.
Here we are as a nation faced with allegations of state capture. The president responds by addressing crowds and saying no word about the real dispute and his response to the allegations against him. Instead he engages on a new narrative of not being wanted for speaking out in favour of radical economic transformation (RET). That’s beside the fact that, with the new minister of finance saying RET means the same as inclusive economic growth, which was the narrative of the ousted minister of finance’s last budget vote in February 2017, it is unclear what the problem is.
The president goes on to say black people should unite when the Constitution requires him to be the chief teacher on building a united nonracial and nonsexist South Africa. But he is supposed to be everybody’s president, not one for black people only or for those that vote for his party. What lesson does this entail for a social justice-based democracy?
We should also be concerned about the lesson from the fact that underperformers and scandal-riddled public representatives remain safe in positions requiring competence and trustworthiness.
Another odd tweet I read drew parallels between the survival and ascendancy tactics of these to those of Napoleon’s right hand pig, Squealer, the cockerel and the dogs in the allegorical Animal Farm. If this observation is correct, what is being taught to others on how to behave to succeed in the South Africa we are building?
Having just celebrated April 27, marking the beginning of the 24th year of our prized democracy journey, we ask ourselves: Will President Zuma’s teachings through word and deed bring us closer to the constitutionally promised South Africa where everyone’s potential is freed and lives improved?
Is our teacher in chief teaching us the right lessons for our quest for a democracy that is centred on ethics and the rule of law? Is it possible that President Zuma is giving permission for a systemic contempt for the law and ethics paradigm, which the opening remarks in the Nkandla report warn against? If so, is this consistent with his constitutional responsibilities? It is for the people to judge.
Madonsela is a Harvard Advanced Leadership Fellow, former public protector, and founder and chief patron of the Thuma Foundation
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