Constitutional Hill

Succession Race

Goodbey Mbeki?

Dec 2nd, 2007
by Pierre De Vos.
1 comment

Will we see the end of President Thabo Mbeki even before the middle of next year? Speculation seems rife that if Jacob Zuma is elected President of the ANC in two weeks time, the Zuma camp will get rid of President Thabo Mbeki and replace him as Head of State with Jacob Zuma. From Mr. Zuma’s perspective there would be very good reasons for such a move – but few of them would be constitutionally acceptable.

Probably the most important reason for Mr. Zuma to get his hands on state power would be that he might then think that he could “control” the National Prosecuting Authority (NPA) as President Mbeki has been perceived to “control” the NPA. It is a most troubling thing to contemplate for those of us who believe in the Rule of Law and do not wish to see state institutions abused by politicians.

The Constitution and the legislation is clear that no politician has the legal right to “control” the NPA. Neither the Minister of Justice nor the President should have any say in the day to day running of the NPA and about individual decisions of who to investigate or who to charge because the latter must exercise its powers without fear, favour or prejudice. This means the head of the NPA must make individual decisions on who to investigate and charge without fear of being fired by the President, without feeling he or she has to do favours for those who appointed him or her, and without being influenced by the prejudices of those with their hands on state power.

But it became clear after the suspension of NPA boss, Vusi Pikoli, that the President does think that he has a right to “control” the NPA. The President suspended Mr. Pikoli after the latter issued a warrant of arrest for Police Commissioner, Jackie Selebi, and he did so on spurious legal grounds. For many of us, this finally confirmed that our President would only tolerate decisions made by the NPA boss if the NPA boss did his bidding for him. The fact that the President had no legal right to do this, just made his actions seem more brazen and abusive.

I was always dismissive of Jacob Zuma and those around him darkly muttering that there was a conspiracy against him from the highest echelons of the ANC. But after the suspension of Vusi Pikoli it became clear that there were good reasons why Jacob Zuma and Schabir Shaik was investigated when it is clear that many others in the ANC also took bribes during the arms deal saga. The NPA was “allowed” to pursue this one issue but – as Andrew Feinstein points out – they were obviously not “allowed” to pursue others like Chippie Shaik, Joe Modise or the ANC itself.

Mr. Zuma might well want to follow this tradition created by Thabo Mbeki and may be all too happy for Mr Pikoli to be replaced by a “disciplined cadre” of the ANC who would make charges against him and other aggrieved ANC people go away. This would constitute a gross abuse of power but does not seem much more abusive than what has been done by the Mbeki faction.

Could President Mbeki be so easily disposed? As he is deployed by the NEC as President of the country, a new NEC could try and recall him and ask him to resign. Mr. Zuma could then take up a seat in the National Assembly and be elected as President by the 293 ANC MP’s in the NA. Luckily for Mr. Zuma, if elected in this way, he would cease to be a member of the NA because the NA would otherwise have had to act against him for not declaring the more than million Rand in “gifts” given to him by Shabir Shaik as confirmed by the highest court in the land.

If President Mbeki refused to resign, section 102 of the Constitution would allow the National Assembly to adopt a vote of no confidence in the President. All that is needed is 200 votes in the NA, packed by ANC members who will depend on their future position on the ANC election list on the goodwill of the new pro-Zuma NEC. If they adopt such a vote of no confidence, the NA will have to elect a new President within 30 days. They will obviously be instructed to elect Jacob Zuma.

More radically, the new pro-Zuma NEC could also decide to instruct the ANC members of the NA to pass a resolution dissolving the Parliament in terms of section 50 of the Constitution after which the President will be constitutionally required to call a new election. Either way, President Mbeki will be history if the NEC decides so.

One final peculiar question arises: The President has the power to pardon or reprieving offenders in terms of section 84(2)(j) of the Constitution. Could President Zuma pardon himself if elected? I would argue that constitutionally he cannot pardon himself because a decision to pardon or reprieve can be reviewed by the Constitutional Court. A decision that is arbitrary or capricious or show naked preference will not be constitutionally acceptable. To pardon oneself is in essence a decision that shows naked preference and would signal that one views oneself as above the law – something that flies in the face of the founding value of the Constitution, namely the Rule of Law.

But surely we will not get to that? Or Could we. Suddenly almost anything seems possible in South Africa. And that with more than two weeks to go before the start of the ANC conference. What ever will we see in the next weeks? I almost wish I was a voting delegate to the conference because it will be history in the making that one will experience at Polokwane.

Zuma in lead, but is victory certain?

Nov 26th, 2007
by Pierre De Vos.
6 comments

The show is not over until the delegates have voted and the votes have been counted, but President Thabo Mbeki and his backers must be worried. Like the creator of Frankenstein, the President seems to have unleashed forces that he can no longer control, the same forces which, in the end, will destroy him and everything he worked for. It is like a truly Shakespearian tragedy of the kind our President so love to quote from.

The ironies are so great, it is almost impossible to imagine anyone inventing this state of affairs. But wait, can the President still pull a fast one at this late stage and can he come back from the brink? Anything any of us commentators write on this topic at this stage can only be speculation, but I am rather intrigued by the possibilities.

It is clear from the results of the weekend provincial nominations for the top six positions on the ANC National Executive Committee (NEC) that Mr Jacob Zuma is in the lead in the leadership battle for the Presidency of the ANC. Zuma received a total of 2 270 votes and Mbeki received 1 396, while Zuma gained a majority of the support in five Provinces and Mbeki in four.

These results are a serious blow to the prestige and standing of President Mbeki and to his re-election campaign. It is quite shocking and extraordinary that the incumbent ANC President with access to the levers of State power and the prestige and pomp of the Presidency behind him, could muster merely a third of the votes cast. One would imagine mere respect for the Presidency and for the a leader of the Party would have given him more votes than that.

The fact that he was so soundly beaten is a serious slap in the face of the President and his leadership style and constitutes no less than a vote of no confidence in him as leader. If I was President Mbeki I would be feeling deeply angry and also deeply hurt and upset by this spectacular repudiation. But a hurt and angered Mbeki is probably a dangerous Mbeki so one never knows what will happen next.

More encouraging, the weekend results suggests that ANC members have a strong understanding of democracy and do not wish a leader to overstay his/her welcome. It is great that so many in the ANC seems to be saying that it is important to reject the notion that one leader is indispensable because as we know from experience, such “indispensable” leaders can so easily lead a party and a country astray.

There are, however, many reasons why these results do not make Jacob Zuma a shoe-in for President of the ANC and thus a sure bet for President of South Africa.

First, it is unclear whether exactly the same people who voted over the weekend will be sent to Polokwane to vote at the ANC National conference. (ANC members who know more about how this selection takes place, please enlighten us on whether the delegates for the provincial gatherings this weekend are identical to the representatives to attend the Polokwane gathering.)

Second, Mbeki is the incumbent President and has shown in the past that he will not shy away from using his power as the Head of State to influence political events to his advantage – even if the use of power is done in an underhand and abusive way. His big problem though is that the weekend vote will send a clear signal that he is vulnerable and that he may lose.  Nobody likes backing a loser. Erstwhile loyalists who followed him out of fear or ambition may now begin to believe that his campaign is sinking and may well jump ship to try and salvage their careers before it is too late.

Third, Mbeki may suddenly be overcome by a modicum of wisdom and humility and may stand back and decline to be nominated as President on the condition that a compromise candidate is nominated from the floor. If it is true that many people voted for Zuma just because they want to get rid of Mbeki or because they believed in the principle that one President should not serve for ever and ever, a compromise candidate could give Mr Zuma a better run for his money at the conference than Mbeki would.

Section 11.4(a)(ii) of the ANC Constitution allows for a nomination from the floor as long as at least 25% of conference delegates second such a nomination. If Mbeki announces he will not stand and in a carefully choreographed move the back room boys maneuver a nomination for Nkosazana Zuma (more likely) or Cyril Ramaphosa (a long shot) from the floor, the dynamics of the Presidential election may well shift fundamentally and may allow many reluctant supporters of Zuma to shift sides to the compromise candidate.

Of course, everything we know about Mbeki seems to suggest that this is also an unlikely scenario. He is a fighter to the bitter end and is probably being told by his lieutenants what he wants to hear – namely that this thing can still be turned around through whichever means necessary, so I won’t hold my breath. The President also probably thinks (wrongly) that him and him alone has the ability to beat Jacob Zuma at the conference.

In any case, it would be an intriguing development if President Mbeki were to step aside for a compromise candidate to emerge. Those of us in the chattering classes who follow politics closely will be entranced and it will sell many newspapers.  It will probably also be better for the ANC and the country. Well, we can only wish.

Fourth, even if Jacob Zuma is elected President of the ANC, he will probably still be charged with fraud and corruption. If convicted, it would place the ANC in a very difficult position. The ANC constitution provides for disciplinary proceedings to be instituted against a member by the NEC if that person is convicted “in a court of law and sentenced to a term of imprisonment without the option of a fine, for any serious non-political offence”.

As the NEC seems to have the final say on such disciplinary proceedings, it might make a huge difference whether Zuma overwhelmingly beats Mbeki at the conference and the overwhelming majority of Zuma’s supporters are elected to the National Working Committee (NWC), because the NEC is elected from the NWC shortly after the conference.

If the NEC was packed with Zuma supporters, they could stall disciplinary proceedings against Zuma on technical grounds until after the 1999 election. He could then be elected President of the country while his various appeals find their way to the Constitutional Court.

This will place the South African courts in an untenable position, because they would be required to pronounce on the guilt or innocence of the President of the country and will have to send him to jail for 15 years if they find him guilty.

I do not envy the eleven judges of the Constitutional Court having to make a final call on the guilty verdict against a by then sitting President. What happens if they dismiss the appeal and Mr Zuma must be sent to prison while he is also the President of the country? There would surely be a severe constitutional crisis as many in the ANC would not accept this outcome.

In any event, I am sure President Mbeki and his henchmen – who apparently want to keep Mr Zuma out at all cost – are plotting as we speak. A lot will still happen in the next 21 days before the ANC President is elected and much more intrigue will follow before a new President is sworn in for South Africa in time for the 2010 world cup.

 

NPA credibility? What credibility?

Nov 15th, 2007
by Pierre De Vos.
2 comments

It has become fashionable to berate the South African media for its myriad of faults – especially around its reporting of the so called succession debate and the chances of Mr. Jacob Zuma becoming President. Much of this criticism is of course self serving and usually emanate from one of the “camps” who feel aggrieved by the reporting.

I am on record as having a rather low opinion of the South African media myself and have pointed out that far too many journalists are credulous and lazy and fail to think matters through. They often jump on a bandwagon regardless of the facts. One example was when newspapers all reported that the charging of Jacob Zuma was made more likely by the Constitutional Court rejection of the appeal by Schabir Shaik against his fraud and corruption conviction.

No matter that legally the outcome of the Shaik case had very little bearing onwhether a Zuma prosecution will be succesful or no, the journalists were all used to report on the matter as either a blow or a boost to Mr. Zuma’s fortunes. As that was the master narrative, they could not understand that the decision had no impact on a possible Zuma prosecution.

It was therefore predictable that the decisions of the SCA last week in which Mr. Zuma’s appeals against the search and seizures of several of his properties was rejected, led to a spate of articles about how this would hasten Zuma’s demise. For once, the legal facts more or less fitted the master narrative, so as it happens it was not far off to state that the SCA decisions was a blow for Mr. Zuma.

What struck me about the reporting, though, was that very little was made about the broader legal picture within which these decisions were made. Most journalists and commentators speculated about whether Zuma would be charged before or after the Polokwane conference and based their arguments on whether charging Mr. Zuma now or later would embolden his bid for the Presidency or hamper it.

The discussion was based on the assumption that the NPA would also make a decision based on these considerations. Of course, if the NPA were fulfilling its constitutional mandate to act without fear favour or prejudice, such considerations should not and could not play any role in any decision on whether to charge Mr. Zuma or not.

It is a sad reflection on our democracy and the degree to which our Prosecuting Authority has become enmeshed in the politics of succession, that the lazy journalists had all just assumed that these criteria would be what drove a decision by the acting head of the NPA. (I am not saying Mokotedi Mpshe, that bright spark currently warming Vusi Pikoli’s chair would not take these succession factors into account – but I am saying he is constitutionally forbidden from doing so.)

By implication it is now taken for granted by almost all journalists that the pro-Zuma camp was correct to argue that the case against him has everything to do with the succesion race and very little to do with the fact that he took more than a million Rand from a convicted fraudster and then did special favours for this fraudster.

Maybe one should not be too harsh on the journalists and the commentators. The suspension of Vusi Pikoli, the head of the Prosecuting Authority (remember him?), by President Thabo Mbeki in circumstances that could only suggest political interference by the President in prosecuting decisions and the revelation by Andrew Feinstein that President Mbeki initially prevented the prosecution of Zuma alongside Shaik, has poisoned the atmosphere to such a degree that it is difficult to remember that the NPA is supposed to make individual prosecuting decisions not based on considerations around the politics of the succession.

Of course, decisions by the NPA to prosecute high powered people have political consequences and the NPA head should manage these consequences as best he can, but he should never make decisions based on whether such a decision is going to advance or inhibit the political ambitions of one person – even if (no especially if) that person is the President of the country.

The fact that most people have forgotten this basic principle and it is now common cause that the NPA will make a decision on whether to charge Zuma or not based on succession politics, demonstrate to what extent President Mbeki has has managed to destroy the credibility of one of our most important constitutional institutions.

All I can hope for is that Vusi Pikoli does not capitulate in the name of the party and that he fight the suspension and possible removal from office to the bitter end. That is the only way in which the NPA’s credibility could be restored in any way.

Meanwhile I am awaiting the decision of Mokotedi Mpshe on whether to charge Mr Zuma or not, confident that the decision will not be discussed with the President beforehand, will have nothing to do with the succession politics, and will have everything to do with legal considerations. I am, of course, also confident that Father Christmas lives in the North Pole and will bring me a new Mini Cooper for Christmas….

Zuma for President?

Aug 28th, 2007
by Pierre De Vos.
2 comments
My slightly tongue in cheek statement a few days ago that, given the behaviour of our Dear Leader lately, a Jacob Zuma Presidency is looking more and more attractive, elicited quite a lot of reaction. After all, Mr. Zuma does often ask for his machine gun and is also no stranger to the inside of our courts so he hardly seems like a suitable candidate for the top job.

The sad fact is that Jacob Zuma and Thabo Mbeki seem to represent the worst the ANC could offer in the line of leadership and also seem to bring out the worst in each other. We always blame President Mbeki for his paranoia and his tendency to spot enemies under every bush while warning us against the Dark Forces out to destroy the ANC, leader of the national democratic revolution.

But of course, although the President started this sad decent into the world of conspiracy theories and victimhood way back when he forced Mr Zuma to declare publicly that he had no ambition to become President, Mr. Zuma has neatly used this atmosphere of suspicion against the President to elicit sympathy from the masses of our people.

Now the two both fan the flames of conspiracy and victimhood in attempts to get the upper hand in the so called succession battle. In the process they are both hurting the ANC and, of course, the country.

In most other democracies Mr Zuma would have been politically dead long ago. Although he has not (yet) been convicted of any crime, his financial adviser Schabir Shaik, has been convicted of giving him a bribe. Yet he Mr Zuma never explained how this does not make him a crook himself. He used to say that he wished he could get the opportunity to tell his side of the story but when he was charged and given the opportunity to do just that, he and his lawyers used the vast resources provided by the state to do everything in their power to prevent him from having to provide his side of the story.

Although Mr. Zuma might never be convicted of a crime, he will remain deeply tainted. As a politician it is simply not good enough to say he has a right to use any means necessary to prevent the prosecution against him from taking place. Reasonable voters must all surely now ask what he has to hide and whether we really want to have a President who is unwilling to explain why he took more than R1 million from a convicted fraudster for whom he did several political favours.

That said, at least he is not Thabo Mbeki. He might have had sex without a condom and might have claimed that taking a shower helps to prevent HIV transmission but at least he has never doubted the link between HIV and AIDS and at least he has not endorsed a Health Minister who believes people must be given a choice between taking anti-retroviral drugs and garlic and beetroot.

So, I will not vote for the ANC while either Mbeki or Zuma leads the organisation, but if I had to choose between the two I am not as sure as I was a year ago that I would choose President Mbeki. Maybe Mr Zuma will listen to advice? Maybe he will admit mistakes and face up to them? Maybe he will show that he cares about the suffering of ordinary people. Maybe he would feel so embarrassed about taking a bribe that he will come down heavily against corruption in government.

Stranger things have happened in politics.

Maybe a Zuma Presidency wont be that bad…

Aug 26th, 2007
by Pierre De Vos.
4 comments
Given the way the President has been behaving over the past few weeks I am seriously starting to wonder whether Jacob Zuma could be worse. At least we will have more fun with Mr. Zuma as President. Like this advert for the “Mshini Wam” ringtone. Not having dsiplayed much of a sense of humour since his elevation to the Presidency, adverts like this must drive President Mbeki nuts…

Will Mbeki be fired at end of the year?

Aug 20th, 2007
by Pierre De Vos.
No comments yet
Xolela Mangcu raised an intriguing point in his column in The Weekender on Saturday. He hints that there may be another reason why President Mbeki may wish to retain the Presidency of the ANC at the December conference: short term job security.

The President of the country is elected by the members of the National Assembly and this means that the leader of the party that can gain the support of more than 50% of the members of the National Assembly will become President. It also means that if the President loses the support of the majority of members of the National Assembly, he can be ousted.

Article 102(2) of the Constitution states:

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

The ANC has a large majority in the National Assembly and its members are under strict party discipline. The party can therefore easily recall President Mbeki after the election of a new ANC President and can elect the new ANC President as President of the country. That would solve the “two centres of power” problem, Mangcu suggests mischievously.

The new President could then serve the rest of Mbeki’s term and then begin to serve his two terms in office. This is because section 88(2) of the Constitution makes clear that serving only part of one term would not constitute a “term” for the purposes of the rule restricting a President to serving two terms.

A similar thing happened to PW Botha after he relinquished the leadership of the National Party to FW de Klerk, and De Klerk and Pik Botha then turned around and ousted him from the State Presidency. But the ANC is not the National Party and the apartheid state is not our constitutional democracy. If Mbeki is ousted, it would therefore be a truly seismic event for the ANC and for the country. Respect for and loyalty towards leaders is deeply ingrained into the ANC’s official culture (although not always respected behind the scenes).

Such a scenario would therefore only be possible if President Mbeki overplays his hand to such a degree over the coming months, that party leaders feel they have no choice but to oust him or if information comes to light that he has used “dirty tricks” or had inappropriately misused the levers of powers against one of his opponents.

Is this a possible scenario? Even cynical me thinks it a bit far fetched. But then who would have thought that the Health Minister would be accused of being a thief and a drunk by one of the largest newspapers in the country?

Newer Posts →