JACOB ZUMA CAUGHT – BUT IS HE OUT?
In a normal functioning democracy there should have been an official statement from the Presidency on Wednesday night with a full and unconditional apology from the President and accompanied by an announcement of his resignation to be effective immediately.
But this will not happen, because Zuma is not known for his integrity.
Before and also during the seven years that he has been President he has used every means possible to avoid prosecution including constraining those institutions of state supporting our constitutional democracy as well as the organs of state responsible for law enforcement.
In no other democracy would a president remain in office after the highest court in the land, the Constitutional Court had found that President had failed to “uphold, defend and respect” the Constitution. On 31 March 2016 the South African Constitutional Court passed down such a judgement on Jacob Zuma but yet he remained in office.
Zuma’s reaction to that ruling was to go onto national television and make a half hearted apology, sorry I made a mistake it not my fault that I was given the wrong advice. This slap in the face was condoned by the ANC that adopted the attitude that we must be satisfied we got an apology!
It was therefore of little surprise that after withdrawing his attempt to prevent the previous Public Protector Thuli Madonsella from releasing her report into state capture no formal statement was issued by his office save to say President Jacob Zuma will study the Public Protector’s “state capture” report before deciding on his next step.
“President Zuma will give consideration to the contents of the report in order to ascertain whether it should be a subject of a court challenge”, his spokesperson Bongani Ngqulunga said in a statement.
But rather than actually studying the report and applying his mind to it, the next morning our President hopped into his jet and popped off to visit his friend Bob in Zimbabwe. On his return he immediately flew down to an ANC rally in his stronghold of KZN where he came out unrependent attacking the party stalwarts including former president Mbeki.
In the same way as Nero played the fiddle as Rome burnt Zuma spends his time travelling around the world ignoring the crises that our country faces. It is beyond understanding that in the last four weeks Zuma has seen fit to host President Geingob of Namibia jet off to President Kenyatta of Kenya then off to see President Nyusi in Mozambique and across the sub continent to Angola to see President dos Santos. He also found time to pop into China for a BRICKS summit.
STATE OF CAPTURE REPORT:
The Public Protector did not make conclusive findings largely due to time restraints and partly due to the resource constraints placed on the investigation. Rather than leave an interim in the hands of an as yet untested new Public Protector, whose first actions are somewhat dubious, it is hardly surprising that the report has recommended that the President constitute a commission of inquiry to investigate the issues it raises.
The report gives Zuma 30 days to appoint the inquiry. The head of the commission must be chosen by Chief Justice Mogoeng Mogoeng. The commission will then have 180 days to present its finding to the President. The report also recommends that the commission also investigate the state-owned entities that were not investigated.
Parliament has been tasked with a review of the Executive Members Ethics Act (EMEA) to create better guidance to prevent avoiding provisions of the act and to be able to act against conflicts of interest. The President has been tasked with ensuring the Executive Ethics code is updated in line with Parliament’s review of the act.
The report’s final recommendation is that the National Prosecuting Authority (NPA) and the Hawks be notified of issues where a crime appears to have been committed. This recommendation applies to Zuma’s and other persons conduct in contravention of the Corruption Act.
As one of the two original complainants in the matter Mmusi Maimane considers most pertinent observation’s made by Madonsela in her report as listed by ENCA to be:
- President Zuma improperly and in violation of the Executive Ethics Code, allowed members of the Gupta family and his son, Duduzane Zuma, to be involved in the process of removal and appointment of the Minister of Finance in December 2015;
- Deputy Minister Jonas was offered a job by the Gupta family in exchange for extending favours to their family business;
- Minister Van Rooyen – who replaced Minister Nene – can be placed at the Saxonwold area on at least seven occasions including on the day before he was announced as Minister;
- That between the period 2 August 2015 and 22 March 2016, Eskom CEO Brain Molefe has called Mr Ajay Gupta a total of 44 times and Mr Ajay Gupta has called Mr Molefe a total of 14 times;
- The Eskom board was improperly appointed;
- Zuma and the Executive failed to take action to verify Ms Mentor’s allegations, as well as Mr Maseka’s allegations, as well as regarding the alleged cosy relationship between Brian Molefe and the Guptas;
- President Zuma and other Cabinet members improperly interfered in the relationship between banks and Gupta owned companies;
- President Zuma improperly and in violation of the Executive Ethics Code used his position or information entrusted to him to enrich himself and businesses owned by the Gupta family and his son to be given preferential treatment in the award of state contracts, business financing and trading licenses;
- The South African people were prejudiced by the conduct of President Zuma, in not following up on Jonas’s allegations;
- Minister Zwane’s trip to Switzerland was irregular;
- Eskom’s awarding of the coal contract to Tegeta was irregular;
- That government advertising was deliberately channeled to the Gupta’s newspaper, the New Age;
- That the President may have been in breach of his legal duties in failing to investigate these matters or put act against them.
Should any one of these observations be found true there could be very serious repercussions for Zuma and the ANC.?
HOW WILL ZUMA REACT TO THE REPORT?
Zuma now has to consider how he responds to these recommendations contained in Thuli Madonsela’s “State of Capture” report.
It would appear that he has three options:
- Ø To reject the findings of the report and apply for a judicial review;
- Ø To accept the report and present evidence to mitigate against the observations made by the Public Protector in the report;
- Ø Challenge the constitutionality of her recommendation to appoint a Commission of Enquiry because only the President has the power under section 84(2)(f) of the Constitution to appoint commissions of enquiry;
Any decision other than accepting the recommendation made by Thuli Madonsela would be interpreted by the vast majority as just another attempt by Jacob Zuma to hinder the course of justice.
It is common knowledge that South Africans are growing increasingly frustrated about the performance of the Zuma government to the extent that he has lost significant support across the ANC. However, with criminal charges hanging over him he will most likely make another move to put off the inevitable.
With the number of Cabinet Ministers named in the observations by Madonsela the question must arise if Zuma will go ahead with the rumoured reshuffle of his cabinet in an attempt to relieve some of the pressure on him and the government. My feeling is that he will not go ahead with it and just try to ride out the storm.
His obvious desire to get rid of Pravin Gordhan as minister of finance has now gone out of the window. The response from civil society, the business sector, senior ANC politicians both past and present and the public in general to the charges of fraud and theft laid against Gordhan by the NPA must have come as a major shock to Zuma.
Zuma’s plan to replace a disgraced Gordhan with Eskom CEO Brian Molefe who is credited with ending load shedding after he took control of Eskom would also have taken a severe knock following the publication of the state capture report. In this report Molefe is implicated in the dubious Eskom coal contracts with the Gupta company.
HOW WILL THE ANC REACT TO THE REPORT?
Even before this report was published the ANC was at war with itself and the State Capture report will help to galvanise opinions in the party.
As can be expected there are now two definite factions in the ANC. It would appear that the anti Zuma camp are those party stalwarts no longer involved in the party structures but steeped in the ethos of a democratic government that upholds the rule of law run by people of integrity.
The pro Zuma support has generally come from the more rural areas, the Women’s and Youth League as well as younger party leaders. These are the people who have the most to lose should Zuma go. Many of the younger cabinet members would hope that in the long term they would be able to inherit his mantle and take control of those organs of state to enrich themselves, their families and friends.
For the immediate future it is unlikely that the ANC will take any action, they will continue to paper over the cracks and the cancer in the party will spread until it is too late.
Many South Africans who were active in local politics will not help but notice the similarities between the predicament that the ANC finds itself in and the demise of the former United Party.
Despite the outspoken comments of senior ANC MP’s Jackson Mthembu and Mathole Motshekga the ANC’s propensity to put party before South Africa makes it highly unlikely that any ANC members of parliament will split from the party line and support a motion of no confidence in Zuma.
Zuma’s immediate attention will have to be justifying to the Gauteng North High Court why he should not be held personally responsible for the costs of his aborted attempt to obtain an interdict against the publication of the Public Protectors report into state capture. The court gave him seven days to respond to the matter, the seven days will expire on Wednesday.
The DA will also refer Zuma to the parliamentary ethics committee because in their opinion Zuma misled Parliament and contravened Section 2.3 (a) of the Executives Ethics Code which states that “Members of the Executive may not willfully mislead the legislature to which they are accountable”.
They allege that on 25 October this year, in an oral question session, President Zuma was asked about his reasoning in his attempts to interdict the Public Protector’s State of Capture Report. He replied by saying:
“I interdicted it because she was going to issue a report having not talked to me or asked me questions.”
This is an unrepentant lie by President Zuma. Attached to the Public Protector’s report is an 89-page manuscript entitled “Hearing between the Public Protector South Africa & President Zuma” – dated 6 October 2016 – which records word for word the question session between the President and the Public Protector.
The DA is also investigating perjury charges because the President has lied to the North Gauteng High Court when responding to the DA’s founding affidavit, the President noted that should it later transpire that the report is final, then the report should be released. If necessary, he added, he would have a right to review the findings of the report.
The President then claimed that the concession in the affidavit that the Report should be released if final is a “typographical error”. He apparently meant to say that “in that event the report should not be released”. An ‘error’ only ‘detected’ when it was clear that the report was final.
The Supreme Court of Appeal may in the near future confirm the reinstatement of his 783 criminal charges of fraud, corruption and racketeering that the National Prosecuting Authority decided to discontinue against Zuma in 2009. Shaun Abrahams, head of the National Prosecuting Authority will find it difficult to justify not prosecuting Zuma on these charges.
Whatever transpires in the short term Jacob Zuma has a rough ride ahead and the chances of him remaining in office after the 2017 ANC elective conference are extremely slim. As undesirable and unpalatable as it me be do not rule out that a deal may be reached where in return for his resignation the first action of the new president would be to grant him amnesty against prosecution.
Only time will tell……….
Until next time,
This newsletter is published by Clive Hatch former Leader of the Opposition in the Mpumalanga Provincial Legislature and former DA Provincial Leader. These views are my personal views and do not represent those of any other person or organisation.