As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.
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