State of capture & the cornered President

The President has been put on notice. South Africans are not ready or willing to give up on this democracy yet. They are in the trenches and taking to the streets.

What happened in the North Gauteng High Court this week was massively significant.

President Jacob Zuma’s application to prevent the release of the State of Capture report failed spectacularly. While it would appear that sections of the report have been leaked to the press in some way, Zuma and his sidekicks Des Van Rooyen and Mosebenzi Zwane seemed very keen to keep it out of the public domain.

That the report was under lock and key did not stop former ANC MP and stalwart (though the president claims not to know her) Vytjie Mentor from singing like a canary. Mentor appears to have in-depth knowledge of the Guptas’ role in influencing Cabinet appointments and policy. Deputy Finance Minister Mcebisi Jonas has also been frank about Gupta interference in executive decision-making.

But everything came to a head on Wednesday November 2, 2016, making it a pretty bad week for the president.

It started when the head of the NPA, the compromised Shaun Abrahams, was forced to do the inevitable and withdraw the criminal charges against Finance minister Pravin Gordhan. Inevitable because it was clear that Gordhan had no case to answer.

Abrahams has spent much of this week trying to convince us of his independence. In his case the facts speak for themselves and mostly it’s what one does and not what one says, in such times as these, that counts. He ought to follow his conscience and vacate his position.

The integrity of the NPA is in tatters and Abrahams cannot restore it. In terms of s 12 (6) of the National Prosecuting Authority Act 32 of 1998, the president himself is allowed to suspend the NDPP provisionally, pending an enquiry. This could be done for reasons of misconduct, ill health, incapacity or if they are no longer a “fit and proper person’” The matter is then referred to Parliament in accordance with s 12 (6)(c) and (d). Alternatively, the president can remove the NDPP in terms of s12 (7) of the NPA Act that requires both Houses of Parliament to address the president regarding which grounds in s 12 (6) would apply. S8 allows the NDPP to vacate his/ her office voluntarily for reasons of “ill-health” or “any other reason the president deems fit”.

So here we have an opportunity for Parliament to resolve that Abrahams’ conduct renders him unfit for the position or the president himself may wish to come to that conclusion. This seems unlikely despite the incalculable damage Abrahams has wrought both to the NPA as an institution and to public trust in democratic institutions.

The Constitution also gives the Minister of Justice “final responsibility” over the NPA in terms of 179 (6) so rightfully Minister Masutha should himself be pressured to deal with the matter too. Given the divisions within the ANC, it is hard to see Parliament being able to come to any resolution regarding Abrahams. And expecting Zuma to act would be like waiting for Godot. He is entirely vested in an NPA head who is pliable given the “spy tapes” filibustering he is currently involved in.

But back to Zuma’s legal travails in the North Gauteng High Court this week. His counsel was compelled to do the usual legal gymnastics required to save his skin and again that strategy failed. Given the legal hurdle that seemed almost insurmountable, Zuma was forced to backtrack and withdraw his application to interdict the report. How could Zuma make the case that the release of the State of Capture report would not be in the public interest? The separate question of course is how it is possible for Zuma to be receiving such poor legal advice and why is the public paying for it?

Of course, this case was not only about the law and it was not being heard in a political vacuum. On the streets on Tshwane the #SaveSouthAfrica campaign had organised a march against state capture and called for Zuma to go. It was a mixed bag of ordinary citizens, the great and the good and CEOs of listed companies. Interestingly, too, this week Gwede Mantashe called on Zuma to follow “his conscience” and Nehawu openly called on Zuma to stand down, declaring their support for deputy President Cyril Ramaphosa.

The Nelson Mandela Foundation also made its voice heard this week and spoke out against the deleterious impact Zuma’s leadership was having on South Africa.

The pressure is thus mounting on Zuma and his merry band of corrupt cronies for whom much is at stake. Pravin Gordhan himself has provided some evidence of money-laundering activities by those linked to Zuma and no doubt he has more up his sleeve.

The question of course is where all this leaves us? Whatever evidence there is of criminal activity in the report will have to be examined by the NPA. Enter Shaun Abrahams yet again. Quite how that will play out is anyone’s guess given how compromised Abrahams is.

Interestingly, Madonsela has recommended that the Commission of Inquiry has to be appointed by the Chief Justice and not the president as is usually the case in terms of s84 (f) of the Constitution. She raises questions regarding Zuma’s own adherence to the Executive Members’ Ethics Act too.

Now that all the information is in the public domain how will accountability be extracted? Certainly momentum seems to be building against Zuma outside of the ANC in particular. There is an overwhelming sense that the social justice project which the Constitution demands cannot be effectively implemented with Zuma at the helm. The ongoing universities crisis, the shameful decision to leave the International Criminal Court, the pending nuclear deal and the ongoing corruption and waste show us how rudderless we are.

In Zuma we have a leader for whom matters of state are entirely peripheral to his own personal interests. Zuma has a great deal to lose though. The next big court case will be the so-called “spy tapes” matter and with more than 700 charges of fraud hovering over him, he cannot really afford to give up without a fight. Those who have built their fortunes as a result of their proximity to Zuma will also have much to lose.

Yet, what we have seen this week is a substantially weakened president who is slowly but surely having to rely on the spineless “deplorables” to protect him. So, the notion of the all-powerful Zuma is a fallacious one and the nearer we edge to 2017, the more power ebbs away from him. His image is more tarnished than that of the organisation he purports to lead. Even ridding ourselves of Zuma will not save the ANC and the rot that is so pervasive, but it will be a very helpful start.

This week Zuma was forced to bow to a full frontal assault by the rule of law and constitutional democracy at work– and not for the first time.

Tick tock, tick tock….

 *This article was published in Daily Maverick. To view the article on their website click here

Judith February is a consultant on governance matters and affiliated to the University of Cape Town’s Graduate School of Development Policy and Practice.  Prior to that she was Executive Director of the HSRC’s Democracy and Governance Unit and also Head of the Idasa’s South African Governance programme.  Judith has worked extensively on issues of good governance, transparency and accountability within the South African context.  She is a regular commentator in the media on politics in SA and in 2009 served on an ad hoc panel to evaluate the effectiveness of South Africa’s Parliament. She is a regular columnist for Media24 and also an occasional columnist for the Daily Maverick and other publications.  She is the co-editor of “Testing democracy: which way is South Africa going?” March 2010, Idasa. She was awarded a summer fellowship in 2009 at the Freeman Spogli Institute for Democracy Development and the rule of law at Stanford University, California and in 2012 was awarded a Spring Reagan-Fascell Fellowship at the National Endowment for Democracy in Washington DC.

To see Judith February's extensive list of publications on our website please click here.

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