The leadership of the ANC cannot say it was not warned of the grave situation into which it has plunged itself and the country as a whole by its poor choice of leadership. If the NEC is not prepared to turn all or some of the material below into a charge sheet against the president, then it should seriously consider recalling him summarily and replacing him with a cadre of better calibre, one that is not too compromised and too conflicted to fulfil the onerous functions, duties and obligations of head of state and head of the national executive.
There has been much focus in recent days on the role of ANC back-benchers in the no-confidence debate that will be aired in parliament sooner or later. They are allegedly being subjected to death threats, harassment and other forms of intimidation to keep them on board and kowtowing to the party line. All of these forms of pressure are criminally illegal. If hard evidence emerges, then the affected parliamentarians ought to seek civil interdicts and lay criminal charges.
It is bad enough that most of the state has been stolen from under the noses of the people by a dominant “Zuptarised” patronage network or faction, it is far worse that their elected representatives, who may be their last hope of peace, progress and prosperity, should be bullied into submission.
One of the counter measures available to those so affected is to give consideration to taking disciplinary steps within the ANC structures against the man on whose behalf (but doubtless without whose mandate) the nefarious activities are being perpetrated, President Jacob Zuma. Not only will this come in handy should the powers that be at Luthuli House decide to take disciplinary action against those ANC MPs who vote honestly in accordance with their constitutional duty of accountability to the electorate, their oaths of office and their firmly set moral compasses, it will also serve as a reminder as to why it is both rational and reasonable as a patriotic public representative to support the motion.
The rules of the ANC Constitution are clear:
Rule 25.4 ordains that the ANC will have jurisdiction to discipline any member. [This accords with the notion of equality before the law that is found in section 9 of the national Constitution and contradicts the received wisdom of the graffiti artists who declare that “No. 1 is above the law”. In fact “No one is above the law.”]
Rule 25.5 sets out certain presumptions of knowledge of how the ANC is supposed to function
Rule 25.9 makes it clear that, inter alia, the NEC and NWC have the right to invoke disciplinary proceedings. Interestingly, so do office bearers of these structures.
Rule 25.11 contemplates a one stage inquiry under the procedure set out in appendix 3
Rule 25.17 itemises misconduct to include neglecting to comply with ANC policy, bringing it into disrepute, sowing racism and tribal chauvinism, provoking division or impacting negatively on ANC unity, engaging in sexual abuse of women, abuse of elected office to obtain enrichment and accepting bribes.
The National Disciplinary Committee hears disciplinary matters and has the power, inter alia, to expel members of the ANC. There are appeal and review procedures available.
So what has the president done to justify the taking of disciplinary steps against him? The matters that are fresh in the public memory revolve around the State of Capture report that was the swansong of Public Protector Thuli Madonsela last year, her success in the Nkandla litigation and the catastrophe around the Al Bashir incident in which the Butcher of Dafur was spirited away in breach of a court order and contrary to the requirements of the ICC which has issued international arrest warrants for him.
The various criminal matters pending against the president ought to weigh heavily upon the unity and good reputation of the ANC. Apparently, thus far they have not. The NPA has actually charged him with 783 counts of corruption, fraud, racketeering and money laundering arising out of his “generally corrupt” relationship with Schabir Shaik, his former financial adviser, who was convicted of corruption and sentenced to 15 years imprisonment. The NPA believes it has a strong case on the merits and the decision to withdraw the charges taken in 2009 is the subject of litigation in which the High Court has already ordered the reinstatement of the charges. Charges of fraud, theft and corruption arising out of the non-security enhancements to the Nkandla homestead, of which there are many, were laid in December 2013 and again in March 2014 by the DA and EFF. No discernible progress has been made with these dockets, which were kept away from the Hawks, inexplicably so. Then there is the corrupt manner in which the appointment of Mxolisi Nxasana as NDPP was cut short, under investigation by the not-so-independent Hawks since July 2015. No apparent progress has been made on this simple and straightforward case.
The career of the president has been so chequered that Accountability Now wrote to the Secretary General of the ANC, Gwede Mantashe as long ago as 2014 suggesting that the ANC could do better with its choice of leader. Here is an extract from the letter of 14 March 2014:
“5.We would urge you and your colleagues on the National Executive Committee of the ANC to reconsider the implications of persisting with JZ as your presidential candidate in the forthcoming elections and to give serious attention to recalling him as presidential candidate if he does not opt to resign voluntarily. This would be the best way to show the world and the large numbers of undecided voters that the commitment of the ANC to the rule of law and the Constitution is a genuine one. We note the concerns expressed publicly by ANC elders and feel sure you have done so too.
6. You are naturally aware from section 1(c) of the Constitution that the rule of law is supreme in the new South Africa. It is supreme in the decision making of the ANC National Assembly caucus too; this is what your organisation’s commitment entails.
7. The rule of law is all about accountability and fairness. It requires that decision making be conducted in a manner which is rational. The case in which the appointment of Menzi Simelane, as NDPP by JZ, was annulled on the basis of the irrationality of his appointment will be fresh in the ANC’s collective institutional memory. It is legally comparable to the situation in which JZ now finds himself. In short, just as the courts have found that it was irrational to appoint Simelane, nominating JZ in the current circumstances is indistinguishably irrational too and accordingly invalid. Section 2 of the Constitution prescribes that conduct (which includes decision making in the presidential electoral college, which is an organ of state) that is inconsistent with the Constitution is invalid.
8. We have to draw it to your attention that it would be contrary to the doctrine of rationality in decision making for the ANC’s caucus in that college to persist with JZ as its presidential candidate in the light of the content of the Public Protector’s [Nkandla] report and in the light of the laying of criminal charges against him by us last December and by the Democratic Alliance and the Economic Freedom Fighters on Thursday 20 March 2014. Any persistence in his candidacy is inconsistent with the rule of law and falls foul of the requirement that all conduct should be consistent with the Constitution which the ANC itself has put in place as our supreme law.
9. If you add to the considerations mentioned in the previous paragraph the track record of JZ as president, you will find much that confirms the proposition that it is irrational to have him as your party’s presidential candidate. According to the NPA there is a prima facie case of corruption, fraud, money laundering and racketeering against JZ, “a good case on the merits”, to quote then acting NDPP Advocate M. Mpshe. These charges arise out of JZ’s relationship with his former financial adviser, Schabir Shaik, who was sentenced to 15 years for corrupting JZ. The 783 charges brought against JZ by the NPA have been withdrawn on a highly questionable basis and the DA’s review in respect of that decision is likely to be finally determined by the courts during the next five years. That could well lead to the reinstatement of the charges.
10. It is clear from the strategy and tactics adopted by JZ in the review proceedings that he anticipates such an outcome and is doing his utmost to both delay and resist it. That is the right of a litigant, but it is not the role of a president. Indeed, this compromised legal and moral position is not the situation in which a leader of a successful and functioning constitutional democracy under the rule of law should be placed by his party caucus persisting in a decision to make him presidential candidate in the parliamentary elections to be held on 7 May 2014. This unwarranted loyalty to JZ will deleteriously affect foreign investment and overall confidence in our economy thereby limiting job-creation opportunities and further exacerbating poverty and unemployment. These are all in conflict with the stated priorities of the ANC. Retaining JZ would also serve as a major distraction from the task of governing the country properly.
11. There is also the question of the less than successful record of the President in making appointments and other decisions in his capacity as head of state. We have already mentioned the ill-fated appointment of Menzi Simelane, who is now facing disciplinary proceedings; Bheki Cele was removed as chief of police following the recommendations of the Moloi inquiry, the careers of several cabinet ministers appointed by JZ have come to an unfortunate end and some have been the subject of adverse findings of the Public Protector in earlier reports.
12. The problem is that JZ is so compromised and in such an unmanageable conflict of interest position that he is effectively incapable of properly fulfilling his obligations, duties and functions as president of the country. For example, this explains his choice of Simelane, too junior and unsuitable, as NDPP. JZ has shown this lack of proper capacity already and it can only get worse in the light of the developments since the release of the final report of the Public Protector on 19 March 2014 and that report’s own contents. JZ can certainly not function optimally as president while the criminal charges recently laid are under investigation, while the review of the 783 old charges is pending and while the recommendations of the Public Protector in “Secure in Comfort” are in the process of being implemented, and/or resisted, and/or litigated by him or others implicated by it.
13. In these circumstances the “rationality in decision making” component of the rule of law requires that JZ stand down or be removed as the ANC’s candidate for president.
Gwede Mantashe responded to this letter by phoning to complain that it was too long to read and by indulging in a little canvassing for votes.
Undeterred, Accountability Now again addressed a letter to him in April 2016 shortly after the Nkandla judgment of the Constitutional Court made devastating findings against the president. In the letter attention was drawn to the following:
“5. In your capacity as Secretary General of the ANC you are doubtless aware and advised that:
ï the Al-Bashir case is unlikely to end well for the President;
ï the Commission of Inquiry into the fitness for office of his appointee, Riah Phiyega, our current National Commissioner of Police, is unlikely to give her a clean bill of health;
ï the review of the withdrawal of 783 corruption charges against the President himself, whether or not it is won in the courts, reflects poorly on the choice of leader of the ANC especially as his former financial adviser, Shabir Shaik, was sentenced to 15 years imprisonment for corrupting the President;
ï the prospects of the applicants’ success in the litigation challenging the removal from office of Nxasana are good, which will lead to his reinstatement as NDPP;
ï the legal challenge to the cabinet endorsed choice of Berning Ntlemeza as head of the Hawks has merit;
ï the underlying reasons for the friction between the Minister of Finance and the Hawks will, if made public in greater detail, plunge the President into yet another crisis involving his integrity, probity and his fitness for office;
ï the name of the Zuma family is implicated in the “Panama Papers” corruption data leak from the legal firm Mossack Fonseca in Panama lending credence to the denied claims by Julius Malema that the President recently took a vast amount of cash to Dubai for the Gupta family;
ï the on-going harassment of the Public Protector by the Hawks is both counterproductive and ill-considered – matters of legal opinion can never be the subject matter of successful perjury proceedings;
ï the decision of the ANC majority in the National Assembly to decline the well-reasoned request of the Public Protector for additional funding is lamentable and ought to be reversed forthwith so as to ensure the dignity and effectiveness of that office, as is constitutionally required;
i none of the afore-going factors does anything positive to grow the national economy and all of them hasten the looming financial downgrades of South Africa to junk status;
ï due to the negative implications of junk status for the economy, the ability of the state to respect, protect, promote and fulfil the rights in the Bill of Rights, particularly the expensive pro-poor socio-economic rights, is placed in jeopardy;
ï Nene-gate and the irregular nuclear build programme as well as allegations of state capture and the inability of the President to make sound appointments due to his compromised and conflicted status contribute to the negative outlook for the economy;
ï The effect on the political popularity of the ANC in a climate in which social security services are cut back, the public administration is shrunk; housing, health care and education are not delivered on the scale to which the public have become accustomed, will be negative.
6. We are obviously not privy to the confidential deliberations of the National Executive Committee of the ANC on which you serve. We would hope that the facts and factors listed above are all given due weight in its deliberations and that it has due regard to the confidential market research on voting trends which the ANC conducts.
7. We respectfully submit that there is much to commend the immediate recall of the President and we ask that the views of branches be democratically canvassed so that the NEC, as the highest decision making body of the ANC between conferences, can be put into a position to give well-informed reconsideration to its decision not to recall the President at this delicate time in a dangerous year.
8. In our list of bullet points set out above we have tried to concentrate on the future as much as possible. Like all patriotic South Africans, we are concerned that the international, and indeed local, perception of the sustainability, viability and probity of the country as an investment destination is adversely affected by all of the facts and factors we have listed for you. As the Minister of Finance has pointed out, it is essential to stimulate economic growth of the kind that creates jobs in large numbers for the currently unemployed youth of the country. This will not happen if the country is downgraded to junk status and junk status is more probable under the leadership of the President than if he is replaced as leader. The reverse he has suffered in the trenchantly worded decision on Nkandla by the Constitutional Court has served to strengthen the Rand, as speculators seek to profit from his potential political demise. There is much for the ANC to cogitate upon in this development.”
The leadership of the ANC cannot say it was not warned of the grave situation into which it has plunged itself and the country as a whole by its poor choice of leadership. If the NEC is not prepared to turn all or some of this material into a charge sheet against the president, then it should seriously consider recalling him summarily and replacing him with a cadre of better calibre, one that is not too compromised and too conflicted to fulfil the onerous functions, duties and obligations of head of state and head of the national executive.
The alternative is a war of attrition, the pain of the rolling mass action against Zuma and the possibility of losing the no-confidence vote as the more sane junior members of the ANC caucus in the National Assembly wisely break ranks and vote for the motion rather than commit professional suicide for the sake of party discipline. The country requires a large dose of prudence, sanity and rational decision making. Whether the NEC is up to the task at hand remains to be seen. The trajectory of the party and the state is at stake. DM
Paul Hoffman SC is a director of Accountability Now and is the author of “Confronting the Corrupt”