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Jacob Zuma. Picture: REUTERS

Analysis: Madonsela outwits Zuma and his friends

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The ANC is in uncharted territory. The removal of its tainted president, Jacob Zuma, can only take place through a national conference or through a conscious decision by the man himself to step down. Yet the party is in a perilous position: the longer Zuma remains, the greater its electoral risks and the more the scandals may pile up.

The release of former public protector Thuli Madonsela’s "State of Capture" report exposed in stark terms what many had suspected since the politically connected Gupta family in 2013 landed its wedding guests at the Waterkloof Air Force Base, a national key point: that the family has penetrated the very heart of the SA state.

There remains a supreme court of appeal judgment waiting in the wings on whether Zuma should face the 783 charges of fraud and corruption withdrawn by the National Prosecuting Authority ahead of his ascent to the Union Buildings. That decision was set aside by the high court earlier this year.

Madonsela "observes" that Zuma may have violated the executive ethics code, he may have infringed the provisions of the Prevention of Corrupt Activities Act, he may have failed to comply with section 195 of the constitution and there may be a conflict of interest due to the relationship between his son and his friends, the Gupta family.

The legal wrangling over the state capture report is set to be fierce. But it may be overshadowed by the political battle now raging inside the ANC.

Zuma’s backers launched a fierce attack on his opponents at an ANC national working committee (NWC) meeting on Monday.

This came after yet another party leader, Mathole Motshekga, who had strongly defended Zuma in the past, called on him to step down over the weekend and allow his deputy, Cyril Ramaphosa, to take over.

Zuma has lost the support of most Congress of SA Trade Union affiliates and of the SA Communist Party, with the Left now ever more vocal about the need to rescue the ANC by removing Zuma.

The ANC caucus in parliament is increasingly at odds with Zuma and his allies, and his support in the national executive committee (NEC) is eroding fast. It is only in the NWC — a smaller committee that runs the day-to-day work of the party — where his backing holds fast.

Succession will feature strongly in how various groups respond to the state capture probe. Already Zuma’s lieutenants in the ANC Youth League and the Umkhonto we Sizwe Military Veterans Association, and in the North West, KwaZulu Natal and the Free State have come out in his defence, emphatically stating that he will not be coerced into stepping down.

Prof Anthony Butler, head of the politics department at the University of Cape Town, says there is no mechanism in the ANC constitution that obliges the party president to step down.

The party has also taken a decision to avoid a "two centres of power" scenario, meaning that the ANC president should become and remain the president of the country while the ANC continues to enjoy the majority in the national assembly.

"The removal of Zuma would have to be accomplished by means of political pressure alone or pressure accompanied by some kind of ‘ deal’ or some kind of ‘ threat’, " says Butler.

"ANC caucus members sign a code of conduct that in theory obliges them to subordinate the national interest to ANC decisions. It is hard to see how the obvious anti-Zuma sentiment that we see among many MPs could translate into a putsch to remove him."

In effect, says Butler, the party’s hands are tied in terms of "normal procedures".

The succession battle that is set to move apace as the ANC’s 2017 national elective conference draws nearer could also make it difficult for the party to reach a "political consensus" around Zuma’s fate, as his removal now may disadvantage some potential successors.

Butler says one option is for the ANC to enter a deal with Zuma, offeringimmunity from prosecution in exchange for standing down, using ill health as a reason for the move. However, Zuma has no guarantees of protection through such a deal, as it would have no legal standing.

Another option is for the NEC to "contain the damage Zuma can do", says Butler. However, the NEC is a product of factional politics and this may prove to be difficult, with members seeking to guarantee their own political futures.

"The [elective] conference is not so far away now. I think that will be the focus. This means painstakingly building national coalitions that can propel a hard slate to the top six and NEC dominance," he says.

Madonsela’s remedial action — which will take forward the investigation — is for a judicial commission of inquiry to be launched within 30 days, and to be headed by a judge selected by chief justice Mogoeng Mogoeng.

Madonsela was careful in the wording of the report, labelling her preliminary findings as "observations".

This was because in a bid to stall the release of the report or ensure that it was handed over to her successor to conclude, Zuma failed to respond to any of the questions put to him.

A transcript of the four-hour interview between Zuma’s advisers, the president himself and Madonsela and officials from her office, released along with the report, was instructive. It indicates how she repeatedly sought to obtain a response to her questions, but to no avail.

She was therefore able to make "observations" and not findings .

The debate over what comes next is raging in both political and legal circles.

Mining minister Mosebenzi Zwane has already indicated that he will subject the report to a court review to have it set aside. Zuma too has indicated that he is considering whether to take it up on review. Eskom CEO Brian Molefe, arguably the most heavily implicated in the report, has also said he will seek to have the report set aside.

However, no party has yet launched such an application in court.

Madonsela’s remedial action has to be implemented within 30 days of the release of the report. It is envisaged that a legal review would have to be lodged before this period runs its course.

But Lawson Naidoo, executive director of the Council for the Advancement of the SA Constitution, says a review of the report will be difficult , as there are no findings.

"You can review the remedial action, but the remedial action is essentially a commission of inquiry ... what is produced is prima-facie evidence of wrongdoing. I think it will be very difficult to review on that basis," he says.

The ANC in the North West, a powerful Zuma backer, says it supports the notion of a judicial commission of inquiry into state capture, but it disagrees with Madonsela’s attempt to usurp the powers of the president by handing the task of appointing a presiding judge to Mogoeng.

The chief justice and a full bench of the constitutional court handed down the scathing judg ment on Nkandla, which resulted in Zuma paying back R7.8m towards upgrades to his private residence, which he had evaded for two years . The chief justice has also been outspoken against graft and poor leadership in recent months.

While it is the sole prerogative of the president to constitute judicial commissions of inquiry, Naidoo points out that, in this case, Zuma is conflicted.

"The executive ethics code indicates that the president should avoid putting him/herself in a conflict of interest position between his responsibilities as president and his private interests, and one would argue that choosing a judge in such a commission of inquiry [in which there are allegations against him] is such a conflict and he must avoid such a conflict," he says.

He adds that the only way to avoid that conflict is to have an outside party appoint the judge in the matter.

Director for the Centre for Constitutional Rights Phephelaphi Dube says that Madonsela may have breached the separation of powers by instructing Zuma to appoint a commission.

Dube suggests this is a reviewable aspect of the report.

Through all of this, Zuma remains defiant, saying at a rally over the weekend that he is not afraid of jail.

The next few weeks will be instructive legally, but the battle in the ANC is beginning, and it will kick into high gear in 2017.

What it means: ANC wary of forcing Zuma to step down; succession debate moves centre stage.