South African President Jacob Zuma is running out of options fast. A number of legal missiles are hurtling towards him, in what may have been one of his worst weeks since taking office in 2009. At the same time, the party he is heading, the African National Congress (ANC) is fast unravelling. The processes – the tightening legal noose around the presidential neck and his imploding party – are interlinked, compounding Zuma’s diminishing chances of survival.
On Wednesday November 2 a damning report on state capture drawn up by former Public Protector Thuli Madonsela was released. While her investigation into an improper relationship between the politically influential, moneyed Gupta family included other state officials, the most devastating observations of wrongdoing pointed directly to Zuma, his son Duduzane and the Guptas. Zuma’s relationship with the Guptas may have led to numerous violations of the Executive Members’ Ethics Act, she observed.
In her report entitled, “State of Capture”, Madonsela recommended that the president appoint a judicial commission of inquiry into the Guptas’ immense influence.
But that wasn’t the only bad news for Zuma. The report comes just before the Supreme Court of Appeal may well confirm the reinstatement of his 783 criminal charges of fraud, corruption and racketeering. In 2009 the National Prosecuting Authority decided to discontinue the prosecution against Zuma.
But in April 2016 the high court in Pretoria set aside the decision to withdraw the 783 criminal charges. The case against Zuma could now potentially resume if the Supreme Court of Appeal upholds the North Gauteng decision on the prosecution.
The court also made a decision that could hit Zuma in his pocket. Zuma initially applied to interdict the release of the Madonsela state capture report – he withdrew the application. That the North Gauteng High Court has now said that he may be held liable for costs in the interdict case, unless he shows good cause in seven days, indicates that the days of spinning out court cases indefinitely and at taxpayers’ expense are no more. He may have to personally bear any current or future legal bills.
So he may have to choose: if the Supreme Court of Appeal upholds the decision on the prosecution of the 783 criminal charges, which is likely, does he appeal to the Constitutional Court, at his own expense? Or does he face potential prosecution?
The options are also narrowing for the prosecuting authority, the National Prosecuting Authority. Because of the diminished power of the President, they may find themselves having to prosecute Zuma with the potential revival of the President’s 783 charges.
Zuma could try to make a deal and resign. But he faces a number of constraints.
He can only make a deal with the ANC, and he can’t make a deal over any criminal charges. That is a matter governed by the law and the Constitution.
Also, opposition parties, the Democratic Alliance (DA), the Economic Freedom Fighters and most other parties are unlikely to agree even to try and drop charges.
He also cannot stop the Public Protector’s judicial commission and charges likely to derive from that. That is now out of everyone’s hands unless the public protector’s report is reviewed, which is unlikely. Again, it is unlikely partly because Zuma can no longer count on state resources for any review.
So a “dignified exit” in exchange for no prosecution is outside the powers of those who may be open to it as a way of resolving the problems of the ANC and Zuma.
What is he likely to do?
If Zuma wants to stay on he will still face the prospect of prosecution under both the previous 783 charges and whatever arises from the judicial commission deriving from the public protector’s report.
So he could try to resign and hope that people will show some mercy. But without the protection afforded by holding office, who knows what else will be uncovered? I think its possible that he may find himself sued for further amounts relating to Nkandla, the scandal over the use of public funds on the president’s private homestead, where he got off quite lightly. I am sure there are other skeletons that could be uncovered.
So I do not know what Zuma can do, since his tactic of spinning things out is no longer so viable in light of his possibly having to bear the costs himself.
What will state capture report mean for the ANC?
Even without this report the ANC faced the prospect of failing to secure a majority in 2019 when South Africa’s next general election will take place. With Zuma remaining as leader the ANC carries the double burden of being disgraced through the public protector’s report, the Constitutional Court judgement on Nkandla and the ANC’s conduct after defeat in a number of metros in August’s local government elections. Representatives of the party do not accept that they have been defeated, demonstrated by the hooliganism in council meetings in Nelson Mandela Bay, Tshwane and Johannesburg.
The ANC is falling apart. For some time it has not been held together by a vision, by the liberatory or emancipatory ideology and vision that drew people to it in the past. The last thing that the ANC is associated with today is fresh ideas. Those days are gone.
At an immediate practical level the ANC needs to replace Zuma. The reason for supporting his former wife Nkosazana Dlamini-Zuma as successor rather than the current deputy president Cyril Ramaphosa – that she was perceived as more likely to prevent Zuma’s prosecution – may no longer hold insofar as no one may be able to stop the law from taking its course. In that sense, the reasons for opposing Ramaphosa may diminish on the side of the so-called “Premier League” – an unofficial, powerful and pro-Zuma grouping led by the premiers of three predominantly rural provinces, the Free State, Mpumalanga and North West.
But as I see it no individual leader, whether Ramaphosa, Dlamini-Zuma or whoever else is seen as likely to win support, can revive the fortunes of the ANC. The party is imploding. The ANC is held together through spoils. The politics of patronage and corruption has taken root so deeply that it has no plan for an alternative existence, as a party outside power and able to provide benefits to its followers.
This means that there is a political vacuum. As the official opposition, the Democratic Alliance may win most votes at the polls and, in coalition, supplant the ANC. But for those of us who seek an emancipatory platform, most do not see that emerging from the Democratic Alliance. Such an emancipatory platform needs to be built afresh from a range of sectors possibly coming together under a unifying vision.
Raymond Suttner does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above