Far too much time and energy is spent dealing with President Jacob Zuma’s troubles — he’s not above the law

Opposition parties have drawn criticism for roasting the president, rather than concentrating on what critics call “the substantive issues” arising from his state of the nation address and the national budget.

The fractious elements in the debate aside, it is surely a substantive issue if the president of any constitutional democracy under the rule of law has become so conflicted and so compromised that she or he is incapable of properly discharging the functions, duties and obligations of the high office held with honour and propriety.

Not only has the United Nations identified strong institutions as one of its adopted sustainable development goals, this laudable aim has also been embraced, at least at local government level, in the annual January 8 statement of the governing party. Strong institutions need to be well structured to function optimally, but they are only as good as the ethos of their personnel. That ethos needs to be compatible with the constitutionally compliant, efficient and effective functioning of the office.

The office of the president in SA is a particularly onerous one, given our fractured past, persistent racism and the transformative mission to address poverty and inequality. If the ethos of any incumbent is lacking or has been compromised due to conflicts of interest or unresolved scandals, then it is a substantive issue that goes to the legitimacy, the capability, the credibility, and the probity of the president.

A president who is not trusted by the nation (and ours was distrusted by two thirds of the people of SA, according to Afrobarometer research conducted before Nenegate and the hearing on Nkandla in the Constitutional Court) or by the Cabinet he leads (when he is not throwing ministers under the Nkandla or Nenegate buses) is one who simply cannot lead in the manner contemplated by the Constitution.

Any president who does not inspire the confidence of Parliament, to which he or she is constitutionally accountable, ought to leave office, whether by recall, resignation, impeachment, or the passing of a vote of no-confidence. The example of the end of the presidential career of Thabo Mbeki, who was recalled by the ANC in 2008, springs to mind.

Only when he has really had enough and when his future is secure, will Zuma resign. Impeachment (by a two-thirds majority) and a vote of no-confidence by a simple majority do not seem to be on the cards, given the strict control the closed-list system gives to political parties, taken together with MPs’ attachment to their seats in the House.

The question that should be exercising the minds of all branches of the ANC, and particularly the Zuma cronies in the party’s national executive committee, is whether it is in the interests of their own political careers, the future of their party and their country’s economic trajectory, to allow a person as conflicted and compromised as Zuma to continue in office. This decision must be made whether or not he succeeds in extricating himself from the various scrapes in which he finds himself due to his past relationship with Schabir Shaik and his current one with the Guptas and others.

For Zuma to continue, in palpably failing health, at the helm of the nation when he no longer appears to have any appetite for the job, will further undermine public trust and confidence in his party (which the opposition will benefit from in upcoming elections), and will incrementally destroy such faith as may remain in the institution of the presidency. It will also place the fragile future of the economy in further jeopardy.

Deputy Chief Justice Dikgang Moseneke has commented on the over-concentration of power in the hands of the president in our constitutional dispensation. The undesirability of this structuring is exacerbated when the ethos of the incumbent is incompatible with his oath of office and constitutionally conferred duties. Conversely, the election of a good constitutionalist as president serves to reduce the risks inherent in putting too much power in the hands of one person. Zuma is not a constitutionalist.

The president in the South African constitutional order is head of state and leader of the national executive. Put differently, he or she fulfils the role of both queen and premier in the UK, or president and prime minister in a bygone era in SA. This means ceremonial and executive functions fall to the president to perform. He selects his Cabinet members, who are collectively and individually accountable to Parliament for the portfolios allocated to them.

The president himself is also answerable to Parliament, though any Martian observer of the frustrated chanting by red-suited parliamentarians would dispute that this is how it plays out in practice in SA these days. Opposition exasperation with the speaker, whose impartiality is questionable, and with the lack of accountability of the executive, which participated willingly in the Nkandla “parallel process”, is the cause of some of the deplorable fractiousness in the House.

The president has the constitutional function of appointing important personnel. Judges, ambassadors, the head of the National Prosecuting Authority (NPA), the chief of police, and the public protector are all presidential appointees. It was Zuma who appointed Bheki Cele chief of police and Menzi Simelane head of the NPA.

Both appointments were short-lived and ended unhappily for the incumbents. Both were chosen for their loyalty to Zuma and not for their ability to fulfil the functions of the posts to which they were appointed.

These phenomena, left to our judiciary to annul and rectify, illustrate the flaws in persisting with Zuma as president. The successors of Cele and Simelane have not fared any better, with Riah Phiyega under investigation for fitness for office and Mxolisi Nxasana having resigned.

Zuma tends to put his personal and family interests above those of the country. He also puts his party first, an indication that he does not appreciate the significance of his oath of office.

There is equality before the law in SA; “Number 1” is not above the law. Unfortunately, at great expense to the taxpayer, Zuma has proved more equal than most by assiduously avoiding accountability in respect of the matters traversed above. Far too much of SA’s time and energy go into dealing with the troubled situation in which he finds himself. It would be liberating to be able to deal with the real issues of the day in a manner that is responsive to the needs of ordinary people, instead of being held in the thrall of the personal dramas that swirl around the head of our president.

The dysfunction in Parliament, in government, and in presidential activities including Cabinet shuffles, is becoming intolerable; it is not creating a better life for all. It is not a good story to tell.

The ANC national executive committee would do well to remember the words of Edward R Murrow as they ponder the future: “A nation of sheep will beget a government of wolves.”

Hoffman is an advocate and director of Accountability Now

This article first appeared in Business Day