It was clearly a mistake to vote for Jacob Zuma as the candidate for the presidency of the ANC at its conference in Polokwane in 2007. The mistake was compounded when an even larger majority of the delegates at Mangaung, five years later, voted in the same way.
These mistakes have translated themselves into two terms for Zuma as head of state and head of the National Executive. This ascendancy occurred despite objections to his candidacy which were overruled when the National Assembly met as an electoral college chaired by the Chief Justice. It ought by now to be plain to all that the ability of Zuma to perform his duties to uphold, defend and respect the Constitution as our supreme law, and to promote the unity of the nation and “that which will advance the Republic” is sorely wanting. There is a unanimous decision of the Constitutional Court in the Nkandla matter which confirms that Zuma is in breach of his constitutional obligations.
Zuma has, over the years, both before and after he took office first as Deputy President and then as President, revealed that he does not have the slightest inkling of what constitutional democracy under the rule of law really entails. He told a gob-smacked Lindiwe Mazibuko during a parliamentary debate that “the majority has more rights than the minority, that is how democracy works – Absolutely”. He insists that the ANC comes first and that the Constitution is merely a regulatory instrument. His loyalty is to his party, not to his country. In November 2016 he has misguidedly castigated non-government organisations which have, fully within their rights, litigated against him for not doing his job. He also airily announces that he knows who the thieves of public money are and is watching them without doing anything about it. Really? He is obliged to uphold the rule of law.
Someday the ANC will have to explain what it was thinking when it handed the presidency of the country to so unsuitable a person. Zuma is clearly too conflicted, too compromised and too corrupt to exercise the powers and functions given to the president in section 84 of the Constitution. His financial adviser, Schabir Shaik, was sentenced to 15 years imprisonment for corrupting Zuma BEFORE the latter was elected president of his party and then of the country.
It was also common knowledge by 2007 that Zuma escaped conviction on rape charges because the court found that his version of consensual intercourse was reasonably possibly true. The version he put up in open court does not bear scrutiny: a young house-guest, the daughter of a struggle comrade, who was HIV positive to his knowledge somehow lured Zuma into intercourse with her. He took a shower afterwards to ward of the dreaded virus. Is this presidential behaviour, by the leader of the moral regeneration movement, in an accountable and responsive democratic order?
When the day of reckoning arrives the ANC is going to have difficulty explaining exactly what it was thinking when it chose its leader in 2007 and again in 2012.
The Zuma presidency has been seriously bad for the country. The Save South Africa campaign, led by ANC notables, says so, as does the SA First Forum. Corruption in the form of patronage, nepotism, cronyism and state capture is the order of the day. Both Save SA and SA First are attempting to create a groundswell of political protest to persuade Zuma to resign, or to persuade the ANC leadership to recall him just as Thabo Mbeki was recalled when he no longer commanded the support of his party. Zuma is digging in and is certainly not minded to resign at present. Too many of the current leaders of his party are beholden to him in ways that make it difficult, if not impossible, to dump him.
If no suitable political solution is available before the general election due in 2019 is called, the law has to be invoked to rid the country of a bad and broken president before he does more damage to the social fabric and his networks of corruption “graduate into something terminal” (to use the pithy phrase coined by the Chief Justice in the most recent majority judgment in the litigation over the effectiveness and independence of the Hawks.)
There are various ways in which to invoke the law. The Democratic Alliance has already called for a no-confidence debate; whether the necessary simple majority can be obtained is doubtful, given party loyalty on the part of the members of parliament who vote on whether or not they have political confidence in the president.
A motion to remove the president is more of a “trial by parliament” in which the known violations of the Constitution and the misconduct of the president are weighed for their seriousness. His ability to do his job properly is under consideration by the same parliamentarians. Because they are determining legal questions on serious violations of the Constitution and serious misconduct, the members are not making a plain political choice; no arbitrary decision making is allowed – they have to vote in a way that is rational and reasonable, failing which their votes can be taken on review.
Another reviewable decision that got Zuma into office is the decision of the Chief Justice on the objections to his candidacy for president. The decision is unduly accommodating of the frailties of the president and is eminently assailable in law.
Then there is the long outstanding matter of the 783 counts of corruption, fraud, money laundering and racketeering against Zuma, which could lead to a long and messy prosecution, if the decision of the High Court that this is what is required is upheld on final appeal in about a year or so. Some doubt that the country has that amount of time available to it; others doubt that so complex a case is worth mounting so long after the event.
A cleaner and simpler criminal case is the matter of the manner in which the services of the previous chief state prosecutor were dispensed with by Zuma and his Justice Minister. There are charges of corruption and defeating the ends of justice under investigation (since July 2015) by the Hawks. The National Prosecuting Authority will shortly decide, without fear, favour or prejudice, on whether or not to prosecute on these charges. Advocate Shaun Abrahams will not be able to participate in this decision as he has a conflict of interests. If the prosecution is successful he will lose his job as his predecessor, Mxolisi Nxasana, will have to be re-instated. The latter has indicated that he is willing, wanting and waiting to take up the position from which he was corruptly removed. Should the National Prosecuting Authority decide not to prosecute on these charges, it will be possible to ask for a “nolle prosequi” certificate as the necessary precursor to a private prosecution in the case. This type of prosecution would be an expensive exercise, but far more manageable than privately prosecuting the 783 long outstanding counts of corruption arising out of the relationship between Zuma and Shaik.
As the facts surrounding the removal from office of Nxasana are more or less common cause and the prosecution will rely on the express terms of the settlement agreement under which Nxasana was paid over R17 million NOT to work, despite an unqualified acknowledgement that he is in fact a fit and proper person for the job, it is unlikely that the whole trial could take more than a few days in court, no matter how many fancy points are taken by the two accused.
Their conviction, even if it is taken on appeal, carries a mandatory fifteen year term of imprisonment. The pressure on the ANC to recall Zuma should he be convicted during next year will surely be intolerable, even if he exercises his right to request leave to appeal, as he surely will.
Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt” now available as an e-book and in all good bookshops.
21 November 2016.