Constitutional Watch

Zuma exit strategy started as Constitution wins in court

Constitutional Court.jpg

Team Zuma had a bad day in court last week as signs are mounting that the ANC has embarked on an exit strategy for him.

The virtual admission in the Constitutional Court (CC) last week that he was wrong in the way he handled the Public Protector’s report on the upgrades at his private Nkandla residence was totally out of character for President Zuma – a further sign that the leadership collective of the governing African National Congress alliance has taken control.

The first prominent sign that Mr Zuma is running low on political capital within the alliance came late last year when he was forced to make a quick about-face on his surprise announcement to appoint a new minister of finance. It would now seem as if an effective ‘Zuma exit strategy’ is taking shape.

He might be able to hang on to office until the end of his second – and constitutionally final – term in 2019, but he has at least entered the typical ‘lame duck’ phase of heads of state in most democracies with a limit on the number of consecutive terms in office.

The about-face in the CC on Nkandla has probably saved Mr Zuma for now from an early ‘recall’. That does not, however, leave him totally high and dry on that score yet.

For one, there is the court case next month brought by the Democratic Alliance (DA) to have corruption charges against him reinstated after he managed before to have them withdrawn.

Regarding Nkandla, the civil claim against his personal architect is also still pending. Information the private/confidential communication between him and the architect on the Nkandla project might bring into the open could still blow him out of the water.

It can, with some certainty, be accepted that the collective alliance leadership – which has for the present become the most powerful political force in the land – would want to avoid an early Zuma recall. It just would trigger too many protracted and potentially destabilising internal political battles.

Team Zuma

The full implications of what happened in the CC last week will only come to light in a few months’ time when the Court delivers judgement. With local government elections having to take place sometime between the end of May and August of this year, some elements of that judgement not only have implications for the health of the country’s Constitution and the democratic processes it facilitates, but could also impact on political parties’ election campaigns.

However, what has happened in the CC last week already delivered some serious collateral damage for ‘team Zuma’.

Top of the list is Mr Zuma’s close ally, Speaker of Parliament Baleka Mbete, who had to admit that parliament under her management was ‘wrong’ in its handling of the Nkandla matter. Since then it has also come to light that Mbete’s legal representative, Lindi Nkosi-Thomas, was involved in controversy in 2013 when a complaint was laid with the Public Protector (PP) and the Johannesburg Bar Council against her for allegedly having ‘doctored’ legal opinion as a member of the board of South African Airways (SAA).

It affected the appointment of senior executives at SAA and she resigned from SAA’s board in early 2014. During her appearance at the CC she was also involved in a spat with Chief Justice Mogoeng Mogoeng.

Speaker Mbete, attacked by opposition parties for her lack of political neutrality and for shielding President Zuma from accountability during parliamentary debates about Nkandla, probably made some strategic mistakes by not sticking to the tradition of speakers keeping a low political profile in public.

After last year’s SONA debacle she said that perhaps the first democratic parliament went too far in the direction of openness and accessibility. And then last week in the run-up to the State of the Nation Address (SONA) she again ventured onto party political terrain by publically saying the Economic Freedom Fighters’ “threat” to ask the president to answer for former minister Nhlanhla Nene’s dismissal was “irresponsible”.

The arguments put forward by Mr Zuma’s legal team in the CC also set up a number of members of his cabinet for collateral damage by implying that they acted outside the dictates of the Constitution in attempts to protect or shield him from the PP’s Nkandla findings.

In his arguments to the CC advocate Jeremy Gauntlett for Mr Zuma said the president accepted that the ministers involved in the controversy be reprimanded, and that this should be part of the court’s order.

The danger that still lurks for the president in the eventual judgement is revealed in Gauntlett’s further statement that he (Mr Zuma) would reject an order stating that he had been defiant, because this could be used against him in impeachment proceedings.

New battle

In the meantime, a new political battle, with serious implications for South Africa’s constitutional construct, surrounding the position of the PP, has already started.

The present holder of the position, Adv. Thuli Madonsela, whose term in that position started in 2009, ironically the year Mr Zuma became president, has to be replaced in October.

The man who has to steer the process of finding the right candidate for the position in the politically explosive atmosphere of a crucial election year – Mr Mathole Motshekga as chair of parliament’s portfolio committee on justice – has already engaged in a war of words with a civil society organisation over the process.

Last week the organisation Corruption Watch launched a campaign called 'Bua Mzansi' to promote public participation and transparency in the appointment of the next Public Protector. It stated that it hoped the campaign would lead to reflection on appointments at other state institutions, as the SA Human Rights Commission, the Constitutional Court and the Supreme Court of Appeal all have key openings in 2016.

Motshekga, a former chief whip of the ANC in parliament and one-time premier in Gauteng, in his reaction to this news said the committee would not follow the dictates of other people in choosing Madonsela’s successor.

“We are not governed by Corruption Watch. We are governed by the Constitution and we will do what the Constitution requires,” he said.

The committee has to make a recommendation about a candidate to parliament, where a minimum support of 60% of members is needed before a name can be put forward to the president for appointment. The ANC narrowly has the numbers to enforce their will, in case opposition parties oppose the final recommendation.

In 2009 there were 49 nominations from which eight were shortlisted and an Ad Hoc Committee to Nominate a Person for Appointment was established. Adv. Madonsela was finally selected with unanimous support from all political parties.

After the Nkandla saga the process to find her successor might not run as smoothly and would probably be subjected to keen public scrutiny.

It is clear that the ghost of Nkandla will be with us for some time still and will pose serious challenges to the ANC leadership collective as they attempt to steer a Zuma exit strategy.

by Piet Coetzer

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