In June 2005, President Thabo Mbeki fired Jacob Zuma as deputy president of the Republic. This was in anticipation of corruption charges being laid against the then deputy president of both the country and the ANC. Following this, it was generally assumed that Zuma’s political career was headed for the political graveyard but this was not to be. On June 16, days after Zuma had been fired, Mbeki was booed and heckled by ANC members at a Youth Day rally in protest against the president’s decision to fire the deputy president. At the end of the same month, the ANC held its National General Council (NGC) at which event three things happened: First, the branch delegates demanded that Zuma – who had been asked by the ANC’s National Executive Committee (NEC) to step aside – be reinstated. The fact that the branch delegates succeeded in forcing the NGC to accede to their demand signalled the beginning of a shift in the balance of support and power away from Mbeki to the advantage of Zuma and his allies. Second, the rebellion against Mbeki was launched. Third, the campaign to install Zuma as ANC president in 2007 and head of state in 2009 began. At the 2007 Polokwane conference, Zuma defeated Mbeki and was elected president of the ruling party. In part, this happened because Zuma and his supporters won the battle for mindshare in the ruling party and convinced a majority of its members that Zuma was a victim of political intrigue. In addition, they succeeded in casting Mbeki in the role of arch-conspirator.
As we come to the end of 2020, it seems there is an attempt to re-enact some of the events or political outcomes described above.
Yesterday, 23 November 2020, Deputy Chief Justice Raymond Zondo, in his capacity as the chair of the commission of inquiry into state capture, announced decisions that may have far-reaching political and legal implications for Zuma and the country. Zondo’s announcement came hot on the heels of a decision by the former president last Thursday to leave the commission without permission from the judge. For those among us who do not follow the commission closely, allow me to remind you of the following:
In July 2019, Zuma appeared before the commission during which appearance he argued that the commission was, effectively, part of a political conspiracy to destroy him.
He alleged also that some members and leaders of the ruling party who were apartheid spies prior to the advent of democracy were part of this political conspiracy.
The proceedings ended on a dramatic note with Zuma’s legal team announcing that their client would take no further part in the commission’s proceedings given the belief by Zuma that he was being treated unfairly.
Following events I will not go into in this article, Zuma was summonsed to appear before the commission last week.
In the days leading up to his appearance, the commission sent a letter to the Zuma legal team seeking assurances that their client would comply with the summons and indicated that the commission would go to the Constitutional Court if Zuma intended to defy the summons. To me, the commission entered the realm of science fiction with an attempt to travel to a future where Zuma would defy or comply with the summons.
In the weeks leading up to last week’s appearance by the former president, the Zuma legal team told the nation that it would ask Zondo to recuse himself because their client was of the view that Zondo did not seem to be a paragon of impartiality and fairness and, therefore, seemed to have bought into the perception that Zuma single-handedly imposed the nine wasted years of ANC misrule during his tenure as president of the Republic.
Last Thursday, Zondo dismissed the recusal application.
In stating the grounds for the recusal application reference had been made by Zuma’s legal team to family and other relations. This, among other things, included the contention by Zuma that he and Zondo are friends. This the Deputy Chief Justice denies vehemently. Again, Zuma’s appearance before the commission ended on a dramatic note: After Zondo announced that he was going nowhere, Advocate Muzi Sikhakhane told him that their instructions were to take his decision on review. Furthermore, they are reporting him to the Judicial Services Commission for judicial misconduct. At this point Sikhakhane asked Zondo to excuse the legal team since they had no instructions from Zuma beyond that point. As we now know Zuma himself left without seeking Zondo’s permission. From what the Deputy Chief Justice announced on Monday, we can safely assume he is miffed and intends to send a strong message that such conduct, especially by a former head of state, will not be tolerated. I suspect it was with this in mind that Zondo announced the following:
Zuma will face contempt proceedings.
The commission will issue a new summons with new dates on which Zuma will be forced to appear.
The commission will seek an order from the Constitutional Court on an urgent basis compelling Zuma to comply with the new summons.
I have no doubt that Zuma new the commission would have him charged with contempt should he walk out. But I think he knew something else: If he is found guilty of contempt, he will have to pay a fine, spend some time in jail or both and this will be the end of his participation in the commission. The commission knows that Zuma knows this. So, how does the commission avoid being checkmated by the former president? This they can do by making sure that the dates on the new summons force Zuma to appear before the contempt matter is heard. Since the contempt matter is to be forwarded to the South African Police Service, the arrest of the former president may be exactly what he wants because his arrest would shift the battle from the legal terrain to the political where Zuma is more comfortable. Also, this would shift the battle more firmly from formal court proceedings and the commission to the court of public opinion. In the court of public opinion he can make any allegations to gain political advantage. In turn, however, his political enemies and opponents can allege anything against him tin an attempt to undermine him politically. What this means is that the battle will be fought simultaneously in our courts, the court of public opinion, the ANC as well as in the streets.
It is with respect to the political battle and the battle for mindshare that the arrest and prosecution of ANC secretary-general, Ace Magashule, may work to the advantage of the former president. What Zuma and Magashule need is their legal woes to become a national crisis at a political level. The intersection of the Zuma matter and the Magashule matter, if they do intersect at some point, may impose a crisis of institutional uncertainty of the kind the country experienced before and after the 2007 ANC national conference in Polokwane – a crisis that gave birth to the presidency of Zuma and the nine wasted years of ANC misrule.
About two weeks before Zuma appeared before the Zondo commission, Magashule addressed hundreds of his supporters following his appearance at the Mangaung Magistrate Court. In his address, he spoke about how his arrest and prosecution were evidence of the fact that the ANC is infiltrated. While he was inside the courthouse, his supporters outside burnt ANC t-shirts bearing the image of ANC president and head of state, Cyril Ramaphosa. Deja vu? Definitely? In the lead up to the Polokwane conference, Zuma’s supporters burnt t-shirts bearing the face of the then ANC president and head of state, Thabo Mbeki. To them, Mbeki was the chief conspirator in what they saw as the deployment of state institutions in the plot to prevent Zuma from being elected ANC president in Polokwane. These perceptions of political intrigue became the core component of the rebellion against Mbeki and delivered the presidency to Zuma. Outside the Mangaung court, Magashule’s supporters called on Ramaphosa to step down. Obviously, to the extent that they believe Magashule is a victim of political intrigue, Ramaphosa is the chief conspirator and, therefore, one of the former apartheid spies Magashule was talking about. The two allegations combined – that Zuma and Magashule are victims of a political conspiracy and that their enemies are former apartheid spies who have infiltrated the ANC – are very powerful and will probably be a significant part of what may become a campaign to install Magashule as ANC president in 2022 and as head of state in 2024. What is critical for Magashule and Zuma is for their political programme to outrun the legal process. In other words, by the time the courts come to their decisions, the political battle must have been lost (by the opponents of Zuma and Magashule) and won (by Magashule and Zuma). But what we must remember is that with respect to Zuma, damage may be caused more in the corruption matter than what will come out of the Zondo commission. To the extent that serious political damage may be caused by what may transpire in the Zondo Commission, we must remember what was said by Sikhakhane when he appeared on behalf of Arthur Frazer, the former head of intelligence. Sikhakhane explained that Frazer was no longer in a position to take state secrets with him to the grave because witnesses such as Mo Shaik went to the Zondo Commission not only to tell their side of the story about goings on in our intelligence services but also accused him of treason. Frazer will, therefore, ‘complete the picture’ for Zondo by sharing information about judges, members of parliament as well as past presidents and the current president of the Republic. In the Zuma corruption trial, Sikhakhane will probably call people such as former president Mbeki to the stand. In short, if what comes out of the Zuma corruption matter and the Zondo commission when Frazer appears do not amount to a damp squib, South Africa is heading towards a political storm given the real possibility that factions inside the ANC will try to use what comes out of these legal processes to the disadvantage of political opponents. The weaponisation of these legal processes may, therefore, become a factor not only inside the ruling party but will in all probability cause tensions to deepen in the political landscape as a whole. Can Ramaphosa survive an onslaught against him? Can the ANC survive a deeper factional crisis?
In part, the answers lie in the differences between current battles and battles prior to the Polokwane conference in December 2007 and the removal of Mbeki as president of the Republic in September 2008. The ANC won almost 70% of the national vote in 2004. This means that the ANC was very popular in electoral terms prior to the Zuma-Mbeki factional crisis. Also, the factional crisis within the ruling party was not as deep as it is today. Furthermore, prior to the Polokwane conference, the ANC president (Mbeki) was going through a crisis of isolation within the ruling party but the ANC had not suffered an image crisis imposed on it by the image crisis of its president as it became the case during the last years of Zuma’s presidency. While, in the end, Zuma imposed an image crisis on the ANC, causing it to suffer electoral losses between 2009 and 2019, Ramaphosa has a higher approval rating in the media and in the public domain despite the fact that, in the ANC, the main challenge he faces is that of internal opposition. The fact that Ramaphosa has a higher approval rating than Zuma, Magashule and the ANC means that he can mobilise against his opponents in the battle for mindshare, particularly in the court of opinion, something he did when he penned a letter to ANC members in which he argued that, when it comes to corruption, the ruling party is accused number. In the end, though, Ramaphosa must win the battle for hearts and minds inside the ANC . Otherwise, his approval rating outside the ANC will not matter if he, like Mbeki, loses the party.