By Rafiq Raji, PhD
“I don’t think we should have people who are almost like God in a democracy.” These were Jacob Zuma’s words in April 2009 as it became all but certain he would lead South Africa. He was referring to the country’s Constitutional Court. His chance to make the court potentially bend to his will came in September 2011 when a new Chief Justice needed to be appointed. His controversial choice – Justice Mogoeng Mogoeng – was viewed with suspicion. Human right groups accused Justice Mogoeng of being lenient with rapists. Because of his outward religiosity, there were also fears Chief Justice Mogoeng would put God before the country’s Constitution. Having been a junior member of the Constitutional Court before his appointment, many worried the Chief Justice might chose comradeship over the rule of law if ever a matter arose concerning Mr Zuma, his benefactor. And in the case of President Zuma, it was not to be too long before that view would be tested. Chief Justice Mogoeng would prove to be an excellent choice. Not for President Zuma certainly. It is ironic that most of the time when African politicians think they have captured the judiciary, the judges surprise them. Chief Justice Mogoeng and his colleagues gave a damning verdict of President Zuma’s behavior on the inappropriate use of public funds to upgrade his rural homestead, the so-called Nkandla scandal.
The real issue in question was whether the remedial actions requested by the country’s anti-corruption agency – The Public Protector – on the Nkandla scandal were binding on the President. Using his executive powers and control over the ruling African National Congress majority in parliament, Mr Zuma frustrated the process of making him account for his actions. In response, the ultra-leftist Economic Freedom Fighters party took him to the Constitutional Court to force his compliance. But the fatal blow did not come from the EFF and the other opposition party – the Democratic Alliance – that later joined the suit. Sensing an unfavourable judgement at the Court would prepare grounds for a potential impeachment of their client, Mr Zuma’s lawyers made the unwise move of asking the Court not to rule on the constitutionality or otherwise of Mr Zuma’s actions. Doing this forced the hands of the Justices of The Constitutional Court. Left with little choice, they unequivocally stated President Zuma’s refusal to abide by remedial actions requested by the Public Protector violated the Constitution. Instead of resigning after such a damning verdict, Mr Zuma has opted for an apology. Clearly, he is determined to test the limits of the law. Unfortunately, the alternative is his forte. In the absence of law and order, chaos reigns. By his actions, Mr Zuma most certainly prefers the alternative. His opponents – who without any doubt now include the people he swore to protect – must not take the bait.
What would it take to remove Mr Zuma from office then? Because if the ruling ANC party refuses to recall him and its members in parliament would not vote to impeach him, what then? Mr Zuma knows all too well how ‘cold’ it is out there. Having fought so hard to rule South Africa, he is unlikely to let go easily. The man seems unfazed certainly. That is because the people who must remove him are likely tainted as well. To move against him abruptly – even in the face of such overwhelming evidence – would be politically injurious for the ANC. In a party that values loyalty above all, they have to seem reluctant to remove him. Even after the damning Constitutional Court judgment, they have to be seen amongst party ranks as affording him respect and comradeship. Mr Zuma is certainly not fooled, judging from speculations about schemes to remove him in publications owned by his notorious associates, The Guptas. There are even murmurings upcoming municipal elections could be postponed. Ironically, a belligerent Mr Zuma might actually best serve opposition parties. The longer he stays, the more unpopular the ANC is likely to become. Strategists at the EFF probably furtively hope he resists calls to resign. That way, they can rally South Africans to push for early parliamentary elections. Signs are the ANC’s loss would be EFF’s gain were early elections to be called. It is probably the prospect of losing their parliamentary majority that may finally push the ANC to give Mr Zuma the boot. Even then, the president’s detractors may still be disappointed.
Another Zuma may already be on President Jacob Zuma’s heels. A move he has all but encouraged, his failsafe option. His ex-wife, Nkosazana Dlamini-Zuma, has already announced she would not be seeking a second term as chairperson of the African Union Commission. The opposition, especially the EFF, may wish President Zuma’s more politically vulnerable but widely acceptable deputy, Cyril Ramaphosa, became the next ANC president. As Mr Ramaphosa is tainted by the Marikana massacre – where the police fired live ammunition at protesting mineworkers, it would be much easier to vilify the wealthy deputy than Dr Dlamini-Zuma. Former President Kgalema Mothlanthe is probably hoping the ANC would open their eyes to his suitability for the job. If push comes to shove, Mr Zuma could ask his comrades to keep him as ANC president while his ex-wife ascends to the country’s presidency. As unseemly as this might seem, it is not a farfetched scenario. An option that could be explored by the opposition should parliament fail to impeach President Zuma might be to go back to the Constitutional Court to ask clearly whether the violation of the Constitution by Mr Zuma made him unfit to remain president and whether an order to parliament to impeach him would not be appropriate. This would certainly test the principle of separation of powers to the limits were this option to be explored. The Justices of the Constitutional Court probably hope they would not be tasked as such. No doubt, this is probably the most uncertain of times in post-apartheid South Africa. To think all these concerns would be unnecessary were Mr Zuma to do the honourable thing. But as Congress of the People party leader Mosiuoa Lekota said recently of the man, “he is no longer honourable.”
Also published in my BusinessDay Nigeria newspaper back-page column. See link viz. http://businessdayonline.com/2016/04/zuma-and-the-coming-winter/