I was quite startled and shocked by the statement made by ANC Secretary General, Gwede Mantashe on Saturday during the press conference where he announced that the ANC had “recalled” President Thabo Mbeki. It was as if Mr. Mantashe had not read or understood the Nicholson judgment or if he had, had decided not to respect the whole judgment. It is difficult not to conclude from his statements that the ANC NEC had decided that in order to protect Mr. Zuma, it would be necessary to break the law and to commit a crime for which one could be sent to jail for ten years. Was this really what the ANC NEC had in mind or was Mr. Mantashe just misguided?
Mantashe said the decision to fire President Mbeki was taken “as an effort to heal and unite the African National Congress” and that it was a political way to deal with the implications of Pietermaritzburg High Court Judge Chris Nicholson’s ruling that Mbeki may have been involved in a political conspiracy against Zuma. According to the Mail & Guardian he said:
“The biggest worry of the ANC had been the question of a reversal of the closure of the chapter that the Nicholson judgement seemed to have promised.” The National Prosecuting Authority’s decision to appeal the judgement had become a worry, said Mantashe. “If pursued it will continue to be a point of division for the ANC.”
So let me get this straight: because an appeal of the Nicholson judgment would perpetuate division in the ANC, the President had to be fired in order to stop the appeal. What are these people smoking? How exactly will they stop the appeal by the NPA? Surely the only way would be to order the acting or permanent Nation Director of Public Prosecutions (NDPP) to stop the appeal or be fired?
As the Nicholson judgment made very clear – relying on precedent of the Constitutional Court – the Constitution and the NPA Act guarantees the independence of the NPA and of the NDPP, who must make decisions about who to charge and which cases to appeal based on legal principles and the values of the Constitution and not, I repeat not, on the basis of what may or may not be in the best interest of the ANC.
If an appeal of the Nicholson judgment will perpetuate divisions within the ANC, tough luck. The ANC must deal with their divisions internally by, for example, ditching Jacob Zuma as its Presidential candidate. The ANC cannot deal with its divisions by interfering with our constitutional structures and it is thus legally prohibited from interfering with the decision of the NPA to appeal a judgment which many legal experts feel the NPA has a very strong chance of winning on appeal.
In as much as Mr. Mantashe is suggesting that by firing the President, the ANC would be in a position to stop the appeal by the NPA, he is suggesting that the new ANC President or a new Minister of Justice will be able to stop the NPA from doing its job, and will, in effect, be in the position to commit a crime for which he could be sent to jail for 10 years.
Unless of course he was referring to the fact that the new President will soon receive a report from Frene Ginwala in which she might or might not recommend the firing of Vusi Pikoli, who is still legally the NDPP. Although – as the Nicholson judgment made clear – Ms Ginwala will be legally and constitutionally misguided in making a finding that Vusi Pikoli is not a fit and proper person, she is a loyal member of the ANC. This means she might be tempted to ignore the law and cook the books to present the new ANC President with the opportunity to recommend the firing of Vusi Pikoli to the National Assembly who could then rubber stamp this abuse of power.
Once the National Assembly has then fired Mr Pikoli the new President could then appoint a loyal ANC cadre as NDPP – someone who will not fulfill its task without fear favour or prejudice as required by the Constitution – who will miraculously decide not to appeal the Nicholson judgment and not to charge Mr Zuma.
But of course, the Nicholson judgment did rather controversially find that a decisions not to prosecute anyone was reviewable in terms of the Promotion of Administrative Justice (PAJA) Act, so we can take that decision on review to show that it was not a rational decision as it was arbitrary, capricious or based on mala fides (bad faith). If the decision by a new NDPP is so blatantly in conflict with the Constitutional and NPA Act requirement to act without fear, favour or prejudice, it might also be set aside as unconstitutional or in contraventions of the NPA Act.
So, if Gwede Mantashe and the ANC NEC think they can get this case to go away merely by firing the President, they are deluded. If this is really what Mr Mantashe meant, the new ANC guys are then also far more dangerous for our democracy than I had previously thought. Really, someone should whisper in their ear that (even) the ANC must abide by the Constitution and the law.
If they do not want to accept the law, they can change the law or the Constitution and we can then decide at the next election to throw them out of office. That is how democracy works.
Poor Vusi is in an interesting (unenviable) position. He was Manduna’s DG, the NDPP who brought charges against Zuma and who obtained the warrants for the raid on Hulley’s offices, formerly in the Mbeki-in-crowd, now out in the cold.
How did it come to be?
I think in Vusi we see why Mbeki ended up where he is now.
But the fact of the matter is Ginwala should have published her report to say that he is fit for office a long time ago. And then he can get back to doing his job as he seems the only one who does not let personal loyalty get in the way.
1. How long would it take for them to change the constitution in such a way that they can stop the appeal legally? eg. let the minister of justice have a final say, or something like that. I mean if they can sack the president in this way for this goal, it does seem that they would be willing to do a lot to get this done.
2. Earlier when the option of private prosecution was discussed, you had to have shown that you were personally affected by the accused. So in that light, would Mbeki be able to launch such a private prosecution? Surely he has been directly affected by the saga. Not that I think he would, but I was just wondering about the option.
Pierre
Also in this context did you have a look at this I posted under your previous post? It shows some indication of what the SACP thinks of the consitutional court and the judiciary. It is worth noting their current influence.
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Pierre
Have a look at this:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=103678&sn=Detail
If you don’t want to read everything search for the paragraph that starts as follows:
“A further clue to the direction of probable intended action by the SACP/ANC towards the judiciary”
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Pierre, how does Mbeki’s appeal againt the judgment fit in with the above? They may have recalled Thabo, but they wont be able to make his appeal vanish or is he appealing to strike out only those bits relating to him, how on earth does he do that?
and if he can and does, wont that then go toward a reversal of the Judgment as Nicholson seemed to feel that the political meddling TOGETHER with the fact that Zuma should have been afforded a hearing weighted his Judgment in favour?
Is Thabo being clever here? resigning with dignity which is admirable and quite frankly what I would have expected to see from all politicians involved in any type of scandal, including Zuma, but keeping the whole Zuma thing in the open by appealing and therefor putting paid to any kind of quashing by the new regime? or am I so totally paranoid now that I should be taken away by men in white shirts?
Please, Please change the Constitution! So that people can see that its not written in stone, including the Bill of Rights.
Now that Mbeki is gone the great mobilising fulcrum of Mbeki vs Zuma is gone and the Zuma problem now belongs entirely to the NEC. The drip drip drip of the ongoing Zuma saga (questions at EVERY news conference, ongoing analysis and comment per Pierre above etc etc) is eating up the new ANC’s credibility as an election approaches. I really believe that they will be forced to get Zuma to step back, otherwise their election runnup is going to turn to pure farce.
Zuma himself has not yet exhibited ANY signs of useful leadership for the ANC or the country.
All very good signs for an ongoing Kaglema presidency.
I have read the papers filed by Mbeki. I think this matter will go on for a while. ANC blundered in placing their decision on a judgment that is so controversial and in fact suspect in the constitutional interpretation. The bigger questions Sandra are:
Will Zuma file papers to oppose the Mbeki application?
Will the NPA apply to be joined as an Applicant and cease to be respondents in the Mbeki matter?
If the Nicholson judgment is overturned, will the basis for Mbeki’s removal disappear?
Was the ANC naive in playing this one through the Law?
I really think we must shift our focus from the negative and put it more on taking the country foward. Main focus at the moment should be how we want our country to look like in 2010 (infrastructure) wise and stop raising unnecessary sentiments.
Samaita: Zuma was fired although he had never stood up and defended himself in front of a judge. The media even created the phrase that the Judge has said; there was a generaly corrupt relationship between Jacob Zuma and Shabir Shaik. Which was proved not to be true.
Thabiso,
This cannot go away. People need to know , exactly, why their president was ‘recalled’ and then make their own view on the matter. Like Vavi, you seem to be wishing for that Men In Black like laser gun that erases peoples memories.
You cannot wish a person like TM away. He has been too much a part of our lives. As a country, lets allow this to take its natural course. We will the be stronger.
And to quote Halie Selassie :-
” As generations come and go, those assuming responsibility for the period do not cease to try and improve on the past in order to meet newly arising demands. In this respect, it is quite evident that to march with the time members of the coming generation should build on what their forefathers have bequeathed to them.”
I’ve been wondering this for a while – surprised the media haven’t picked up on it
Pierre – what do you make of http://www.thoughtleader.co.za/sentletsediakanyo/2008/09/22/is-national-assembly-violating-the-constitution/ – is it correct? Thanks.
Harrold, why do you want to change the Constitution? Are you smoking zol?
Mbeki is not challenging his recall but the basis for it.
Thomas, I agree with you on this point, from my point of view though, I would have expected Zuma to have resigned willingly at the time as Mbeki has done in the face of such ‘legal’ uncertainty. My interpretation of the Zuma firing was that Mbeki et al figured Zuma should have resigned, and when he would not? they took steps to have him removed to protect the integrity of the government.
Taken from the view of public opinion – Mbeki although cast as a villian has been lauded for his actions, Zuma also cast as villan has been vilified (?) Zuma in refusing to act with courage and show leadership skills ( by not resigning) is seen to be not so much a leader as Mbeki, but rather as a power hungry and ethically corrupt individual.
Samaita, my query relates more toward the process to be followed in ANC’s thinkin, am wondering whether Mbeki by appealing isnt putting a spoke in the ANC’s wheel, if they want to quash this thing with Zuma it looks like they are going to have to do it legally on a whole range of fronts which means publically and their motives are going to be quested. This is not going to be dealt with behind the scenes. What do you think?
Sandra,
Your second paragraph argues exactly what I have always wanted, but too scared, to argue. The last weekend has totally showed us who is the power hungrier(spell check) of the two leaders.
@ Sandra:
In Mkangeli vs Joubert 2001[2] SA 1191 CC at 1196E-F Caskalson, P, for the unanimous court wrote [ and it was not obiter ] :
“Appeals are brought against orders made by a court and not against comments made in the course of the judgment.”
They’l have to get past { distinguish } that comment to help Mbeki.
Henri,
Would that not be the reason why he went to the ConCourt instead of the Supreme court. What he seems to be saying is that the judgement infringed on his constitutional rights. That does not sound like an appeal to me. Besides, how does one appeal a matter they were not, a party, to.
To quote Amilcar Cabral, the new ANC NEC is ‘telling lies and claiming easy victories” about the reason for recalling Pres Mbeki. Prof, you are correct these people are showing disrespect for the constitutional institutions, they will definately interfere in the NPA decision to appeal this Zuma matter if the statements made by Mantashe on the weekend are anything to go by.
thanks Henri, I thought I was going mad. This does pose the question then, what does Mbeki gain with this new ‘appeal’ or is it an application(?) Samaita you have read the papers, where can I gain access please and what are your thoughts.
It does rather beg the question, who is it exactly that is running the country? the Pres who we all thought was Mbeki or Luthuli House and what does this mean in terms of a democracy? if the Pres can be replaced at the drop of a hat when the Little House on the Prairie (LHP) gets excited I get nervous. The Constitution is supposed to give us certainty, Mbeki resigned, not because of a vote of no confidence, not because he was judged guilty of goss misconduct, but purely because the LHP told him to.
What does this mean?
When I vote I vote under the impression that the dude who will be running the country is the dude nominated as the Pres of the ANC, i.e. Mbeki.
Somehow I dont see the ANC getting my vote this time around. I dont like to be taken for a fool, it seems the ANC is playing fast and loose.
Thomas
The Zuma camp loves to repeat over and over the manufacturing of the “generally corrupt relationship” phrase. I do not defend this attribution, but I do say that this does not constitute a defense!
For good reason that same camp never quotes from Supreme Court of Appeal judgement:
“In our view, the sustained corrupt relationship over the years had the effect that Shaik could use one of the most powerful politicians in the country when it suited him.”
http://www.saflii.org/za/cases/ZASCA/2006/105.html
Do not be fooled by them, the charges are not frivolous or made up, but have a good legal basis and that is why Shaik is in jail.
Sandra // Sep 23, 2008 at 1:11 pm
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This is a time for the opposition to unite under the leadership of Mbeki and take advantage of this political turmoil to be worthy adversaries to the ANC next year…
Sandra
“by not resigning”
This link suggests Zuma initially offered to resign, and later changed his mind when Mbeki asked him to step down.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=103888&sn=Detail
This is the first time, this has come to my attention. Can anyone confirm knowledge of this?
Sne – I couldnt agree more. Could it be that we may possibly get somthing good out of all this, a Party to be proud of?
Sandra // Sep 23, 2008 at 1:31 pm
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I certainly hope so Sandra, or at least the opposition must unite and challenge the ANC next year even if under the Presidency of Helen Zille or a compromise president from amongst themselves…
I truly cant imagine how anyone would want a person with such a questionable character as Jacob Zuma to lead a country that has so much potential. I am a previously disadvantaged person, but I refuse to associate myself with leaders who have a sense of entitlement to such an extent that they use the people to serve them without putting in some hard yards and serving the people. This country will only be able to get on the right track if all people (black people included) start choosing leaders with the required skills, logic and passion for the people. I truly dont think JZ fits the description I have just given.
Sandra, the papers are on http://www.businessday.co.za
You can download them for free. It certainly appears that he has had some sound legal advice. You can also access the supporting affidavits from Mabandla and Chikane…!
I am sorry my analysis is quite shalllow on the subject but the Concourt will have to hear the man. He has really put his case forward forcefully.
Dis nie besluite wat in die belang van die land geneem word nie. Dis ook lankal nie meer ‘n wit teen oor swart probleem nie. Dis ‘n ego probleem. Terwyl die brandwagte baklei om te sien wie die sterkste is, gaan die trop daarmee heen. Dis ‘n skande dat selfgesentreerde ego’s van ‘n handjie vol mense ‘n hele land skade kan aandoen. Die regering se grootste probleem is dat die gemiddelde mense in die land toe tog geleer het om saam met mekaar te leef , mekaar te respekteer en mekaar te verdra. Met hulle eie groot egos in die pad kan hulle nou nie eers mekaar verdra nie. Die gemiddelde mens gee nie om wie die land regeer nie. Hy/Sy moet dit net goed.
Dis nie besluite wat in die belang van die land geneem word nie. Dis ook lankal nie meer ‘n wit teen oor swart probleem nie. Dis ‘n ego probleem. Terwyl die brandwagte baklei om te sien wie die sterkste is, gaan die trop daarmee heen. Dis ‘n skande dat selfgesentreerde ego’s van ‘n handjie vol mense ‘n hele land skade kan aandoen. Die regering se grootste probleem is dat die gemiddelde mense in die land toe tog geleer het om saam met mekaar te leef , mekaar te respekteer en mekaar te verdra. Met hulle eie groot egos in die pad kan hulle nou nie eers mekaar verdra nie. Die gemiddelde mens gee nie om wie die land regeer nie. Hy/Sy moet dit net goed doen.
Give up already Andrea Becker! Apartheid is never coming back. Go do something with yourself.
The letter and spirit of the law dictate that all appeals can go on forever, methinks. But the SPIRIT of the people of South Africa is vexed already by the never-ending appeals, NOGAL appeals by the top dog (The State) in this fight: APPEAL AGAINST NICHOLSON BY MBEKI, APPEAL AGAINST NICHOLSON BY MPSHE/PIKOLI, (and soon we’ll hear) APPEAL BY CONSTITUTIONAL COURT AGAINST HLOPHE VICTORY! It is just sickening!
I think and pray that now that the cancer growth has been excised, all the appeal suppuration dogging our media will soon dry out and heal this nation in readiness for peaceful elections next year, and let those who dislike Mantashe’s pronouncements vote the ANC out if they can.
As for the twitching, still-bleeding die-hard cancer tumour, it will probably land in a dustbin somewhere to wriggle further therein, metastasize and form a new political party of fellow-tumours-of-the-dustbin.
If you ask me: Long Live Comrade Gwede Mantashe!U are the voice of the people of South Africa!
Where Pierre de Vos is concerned, I need to commend u, Pierre, for a great blog. U’re a veritable man of the letters!