Political Watch

As Zuma’s sun sets, democracy shines

Has Zuma’s final escape route disappeared?

As evidence is mounting that the sun is setting over the Jacob Zuma era in South African politics, the health of its young democracy proves to be in much better shape than many realise.

With President Zuma’s offer of a “settlement payment” last week to the Constitutional Court (CC), in the case brought before it by the populist Economic Freedom Fighters (EFF), his “Nixon moment” (as predicted in July 2015) finally seems to have arrived. Having missed an opportunity as far back as October 2014 to make a payment and settle matters, he has no place left to hide.

Zuma’s final days are signalled by among other things:

The only outstanding question is whether the ANC will allow Mr Zuma to continue his present term in office until 2019 when constitutionally he has to vacate the office of state president or whether he will be recalled at the 2016 elective conference next year – or even earlier.

While the Nene affair triggered the ANC’s efforts to clip Mr Zuma’s wings, and largely led to the furore over the Guptas – although controversies surrounding some Eskom contracts and conflict with trade unions over some tax legislation also contributed – it is Nkandlagate and the accompanying Constitutional Court case that could see him leave earlier rather than later.

How did we arrive at this point?

It is important to note that in the case of both Nene and Nkandlagate, political disaffection with Mr Zuma’s leadership has been building inside ANC political structures for some time.

But, ultimately, it was the combined pressure from within the ANC, from opposition parties, civil/business formations, media exposures and reaction on social media that forced the governing party’s hand.

This illustrates that the democratic spirit in South African society is not only alive and well, but working to get results and keep even a political party with a large majority in check.

Even if one should take the cynical view, as many commentators do, that the ANC is only reacting the way it is because 2016 is an important municipal election year, it is a sign that democracy is still alive and well in the country. Same goes for the other cynics’ view that the ANC is only deploying an exit strategy for Mr Zuma.

The message is that elections still matter and government cannot afford to ignore the opinions and wishes of voters.

A synopsis of the long history of the Nkandla affair tells an interesting story. Although, because of the ANC’s iron grip on state power and even the civil service, it took six years to the point where a final conclusion seems to be imminent, it is important to remember how and where it all started and how it developed.

Nkandlagate history

The Nkandla saga started in December 2009 with a Mail & Guardian report, headed “Zuma’s R65m Nkandla splurge”. As things panned out over the months and years that followed, “R65m” was but the tip of the iceberg. Finally, the figure proved to be R246m. At the time the presidency claimed have no knowledge of such a project, as did the Department of Public Works.

More media reports followed, indicating that the extravagance of ‘upgrades’ at Nkandla was much larger than initially known, and were accompanied by denial after denial from the presidency and the ANC.

In November 2012 President Zuma for the first time addressed parliament on the Nkandla issue, claiming he and his family were paying for work at his KZN home. Shortly thereafter, first constitutional expert Professor Pierre de Vos and then the Democratic Alliance, lodged requests for the Public Protector (PP), advocate Thuli Madonsela, to investigate the matter.

Mr Zuma and the ANC launched an extensive strategy to first hinder and then discredit Madonsela and her report – including no fewer than three parallel investigations of their own, the first one by the Department of Public Works in January 2013, exonerating the president.

By April 2013 Madonsela said her report was 90% complete but she was waiting for key documentation from government. By October 2013 her report was done but not released immediately.

First the security cluster of cabinet filed an urgent interdict to prevent the report’s release – only to withdraw it two weeks later.

Then followed a leak to the media of an alleged draft of the PP’s report. The ANC blamed her for the leak, but she denied it came from her office.

Mid-December 2013 a report by an inter-ministerial task team was released, exonerating the president because he “did not ask” for the upgrades – a clear attempt to pre-empt the PP’s report.

Her report, Secure in Comfort, was finally only released in late March 2014. In it she found that Mr Zuma had violated the Executive Ethics Code through his “failure to act in protection of state resources”.

She also found he and his family derived benefit from non-security upgrades and recommended that he, with the assistance of the National Treasury and the South African Police Service, determine a reasonable percentage of the costs of non-security upgrades, which he should then pay back to the state.

A referral by the president to parliament followed - where he could count on an ANC majority to do his bidding. And two ad-hoc committees and an investigation by the Minister of Police, which all exonerated Mr Zuma, later, court action seemed the only way out.

Breaking point

By the time parliament opened in 2015 the situation has seemingly reached a breaking point. The disruption by the EFF of Mr Zuma’s State of the Nation Address and chaos in the National Assembly followed.

The EFF decided to apply to the Constitutional Court to pronounce on whether the president’s actions on the PP’s report were constitutional. Both the DA and Madonsela joined the applications as interested parties.

It forced Mr Zuma to come up with his “offer to pay”, a week before the case was due to be heard, only two days before his next SONA.

The main litigant, the EFF, indicates it is “not going to agree to any settlement until he (Zuma) reaffirms the powers of public protector, [re-affirms that] the remedial actions of public protector are binding and (he) … agrees in the settlement that [by] failing to implement the remedial action he was in breach of the Constitution and his oath of office”.

Although in less aggressive language, the DA has taken a similar line. At the time of writing the PP was still consulting with her lawyers.

An indication that Mr Zuma’s latest attempt at a soft escape by persuading the CC to turn his “offer” into a determination of the court, will not succeed came in the form of a letter from the registrar of the CC to his lawyers. It, inter alia, stated: “The settlement proposal is a matter for the parties to decide and calls for no directions from the court at this stage.”

Bottom line

The bottom line is: Mr Zuma has run out of hiding places and will have to explain himself to the highest court in the land.

From his latest move one can only assume that his legal advice was that his chances of coming out it unscathed were pretty slim.

South Africa’s democratic construct, from the power of voters, freedom of the media, constitutionally independent watchdog institutions and an independent judiciary has won the day.

As a final thought, there is quite some irony, and a lesson to be learned from the fact that the final blow for constitutionality came from the populist EFF, which has had more success by using the system than from disruption of parliament that can only undermine people’s belief in the democratic system.

by Piet Coetzer

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